Anti-Social Behaviour Orders
An Overview
What is Anti-Social Behaviour?
The types of behaviour that can be considered anti-social are not defined within the Crime and Disorder Act 1998, but this gives the courts flexibility in determining what actions can be considered anti-social. It follows that courts can be faced with a range of possible behaviour that may or may not also constitute criminal activity. In order to determine if the conduct amounts to anti-social behaviour the court must decide whether it 'caused or was likely to cause harassment, alarm or distress'. Whether a course of conduct is anti-social in nature is primarily measured by the consequences and the effect it had, or is likely to have, on a memer or members of the community within which it is taking place.
What is an ASBO?
An ASBO (Anti-Social Behaviour Order) is a set of prohibitions imposed by a court, applied for on the community's behalf by the police, local authorities, landlords, Crown Prosecution Service, and Transport for London. It is preventive, not punitive, so the terms aim to stop the behaviour which led up to the anti-social behaviour. For example, the ASBO could ban a person who committed anti-social behaviour while drunk from drinking alcohol in public, so it prevents another victim rather than just waiting for the crime to be committed and then trying to deal with the consequences. So an ASBO is used where there's a pattern of behaviour that needs to be stoppepd. As long as the perpetrator sticks to it, there's no punishment.
When are they used?
It is unusual for an ASBO to be used on the first occasion unless there is an immediate need to protect victims and witnesses from violence. Agencies use a range of options first as part of a tiered approach. Early intervention options include Acceptable Behaviour Contracts and warning letters. An ASBO is used only where necessary in order to stop the ASB. These decisions are not taken lightly - agencies consult with each other beforehand, they put in place a support package to aid compliance, and finally they have to go before a court and show that the ASBO is needed.
How is it monitored?
One thing that agencies need to do is show the court that their prohibitions are not just necessary but that they can be monitored too. Sometimes this is straightforward, particulary with landlords and tenants. For other ASBO's, the community needs to help the police and local authority by reporting breaches. This is why some ASBO's are publicised within the area in which they operate.
How do you breach one?
If you don't comply with the prohibitions, you are in breach. You might be barred from entering the street where your victims live. You don't have to harass them again to be in breach - all you have to do is step into the street you've been banned from. The Order is preventive, so it stops the behaviour before it has a chance to create another victim.
What happens then?
Breach is an arrestable criminal offence. If found guilty, there is a range of sentencing options open to the court. These include, up to five years imprisonment for an adult, two for a juvenile. The courts take breach very seriously. For adults, custody is the starting point in determining sentence, although for juveniles custody should always be the last resort. For adults, the usual sentence is around six to nine months. In cases where breach has involved violence against victims, sentences of up to four years have been given.
What sort of prohibitions can be used?
It depends upon the facts of each case. Prohibitions have to be genuinely negative and be aimed at preventing antecedent or preparatory behaviour. Generally, prohibitions should:
- cover the range of anti-social acts committed by the defendant;
- be necessary for protecting person(s) within a defined area from the anti-social acts of the denfendant (but, as a result of the recent changes, that defined area may be as wide as necessary and could, in appropriate cases, include the whole of England and Wales);
- be reasonable and proportionate;
- be realistic and practical;
- be clear, concise and easy to understand;
- be specific when referring to matters of time, for example, prohibiting the offender from being outside or in particular areas at certain times;
- be specific when referring to exclusion from an area, including street names and clear boundaries such as the side of the street included in the order (a map with identifiable street names should also be provided);
- be in terms that make it easy to determine and prosecute a breach;
- contain a prohibition against inciting/encouraging others to engage in anti-social behaviour.
They can also contain terms that:
- protect all people who are in the area covered by the order from the behaviour (as well as protecting specific individuals);
- cover acts that are anti-social in themselves and those that are precursors to a criminal act, for exampe a prohibition on entering a shopping centre rather than on shoplifting;
- include a general condition prohibiting behaviour which is likely to cause harassment, alarm and distress, but where this is done there must be further clarification of what type of behaviour is prohibited; and
- include a prohibition from approaching or harassing any witnesses named in court proceedings.
For online copies of comprehensive guidance on ASBOs please click here:
ASBO guidance (published August 2006).
Click here for ABC guidance: ABC guidance (published August 2007)
Further detailed information on the Government's anti-social behaviour policy can be found at www.Respect.gov.uk
Last update: Monday, September 01, 2008