It is eight years since anti-social behaviour orders were introduced. Polly Botsford looks at what, if any, impact they have made


It is a failure every time a young person gets an anti-social behaviour order (ASBO), says Ed Balls, the new minister for children, schools and families. Campaigners and professionals put it slightly differently. They say that the ASBO itself is what is failing.



These orders, first introduced by the then Home Secretary Jack Straw in 1999 with the Crime and Disorder Act, allow local authorities, the police, and now registered social landlords, to obtain an order against an individual, banning them from a certain area, or from carrying out certain acts, within a community where the individual is causing harassment, alarm or distress.



Since their introduction, the number of orders made has grown to almost 10,000 (increasing in parallel with fears of ‘anarchy in the UK’ – as The Sun recently put it). But professionals who have to deal with ASBOs question their effectiveness at counteracting anti-social behaviour. The new chairwoman of the Criminal Bar Association, Sally McNeill QC, has been calling for their abolition over her fears of the serious injustice caused by a civil remedy having a criminal sanction.



If they are right, why is it that the ASBO is not working? Is it because of the nature of the legislation itself, or is it a wider problem? Is the clue in the word? If this is anti-social behaviour, then is it a social, rather than a legal, problem, with a social, rather than a legal, answer.



Gillian Crossley, a solicitor-advocate and partner at legal aid firm Burton Copeland in Manchester – ‘the capital of ASBOs’ as it is referred to by practitioners – is highly critical of the way ASBOs have been designed. Like Ms McNeill, she believes ASBOs do not work, partly because they are not a criminal but a civil offence.



She says the distinction is important for a number of reasons. First, the burden of proof is not a criminal standard, ‘so it is much easier to prove there has been anti-social behaviour than it should be,’ she adds. In R v Crown Court at Manchester Ex parte McCann [2003] UKHL 39, a case in which Ms Crossley acted, the House of Lords ruled that the standard of proof was only criminal when the courts were considering previous acts of anti-social behaviour, but when they were considering the necessity of the order itself, an ‘exercise of judgement or evaluation’ is involved, rather than a standard of proof.



Second, the prosecuting authority can use hearsay evidence. ‘All they have to do is find enough people in the neighbourhood who can say they saw someone do something, or just say something about particular troublemakers and the case is made out,’ Ms Crossley adds.



But ASBOs should have criminal standards because their implications are criminal, Ms Crossley argues. If an individual breaches their ASBO, they risk a custodial sentence. She gives a vivid example: ‘One client, a youth, was given an ASBO for consistently causing disruption with other youths in a certain area. The ASBO banned him from being in the company of more than three people. Well, of course he is going to breach that. It is just not workable. So by the time this kid was 22, he had 37 convictions behind him – 32 of which were because of that ASBO. We’ve criminalised him and we are criminalising our youth.’



Nor is this case exceptional. Because of the very wide nature of ASBOs, and the length of time for which they are imposed (the minimum is two years), they are breached all the time. Ms Crossley estimates that ‘80% of ASBOs are breached’.



Frances Cook, director of the Howard League for Penal Reform, believes that ASBOs actually make the situation worse. ‘Certain conditions of the orders are encouraging criminal behaviour: if you are banned from an estate, and you cannot access your friends and family, it will only get worse,’ she says. ‘If you are banned from a part of town, then you can’t get a job.’



Another part of the problem is the way ASBOs are being used: too often and too early. The Youth Justice Board undertook its own research into ASBOs, published in November 2006, which found that often the courts assume that if an ASBO is being requested, all other avenues have been exhausted. This is not the case. The research showed that in areas where there is high ASBO use, courts tend not to know the full range of alternatives, whereas the opposite is the case in areas of low ASBO use.



The Youth Justice Board says that it is about professionals understanding the process better. ‘There is a place for them [ASBOs],’ a spokeswoman says, ‘but the youth offending team should be involved from the beginning to work with the youth and identify the stages prior to an ASBO being issued. ASBOs are at the end of the line.’



Ms Cook says: ‘There is no evidence to say that ASBOs are deterring people – that is exemplified by the fact that more people are being given them.’



But there are professionals who disagree with this analysis. Sue Hird, a housing officer with registered social landlord New Charter, also based in Manchester, denies that ASBOs are being used too quickly. ‘We do not consider an ASBO lightly,’ she says. ‘Before we get to an ASBO, we have pre-ASBO warnings. The nuisance would have gone on for a long time, over many months.’ She also says that no decision to apply for an ASBO is made in isolation: ‘We would never go for an ASBO alone. It is a joint decision with the local authority and the police. We all have to agree.’



It is also the case that ASBOs are not the only tool for tackling anti-social behaviour. Many housing associations, police and local authorities use other means, such as the anti-social behaviour injunction (ASBI). Simon Braun, a partner at St Albans law firm Sherrards, is an expert in anti-social behaviour litigation, acting for a number of housing associations and local authorities, as well as being involved in training local police forces. He says ASBOs are ‘pretty useless’ because they take so much time to obtain, by which time the problem may have gone away. ‘Most enforcers are not aware of the other options available to them,’ he says. ‘There has been so much legislation recently that they are not up to speed.’



Mr Braun prefers an injunction. ‘It is much quicker to get an injunction and it is important to act immediately rather than let the problem continue,’ he says. ‘I can get an injunction within a few hours. They come with a power of arrest, so if the injunction is breached, the police can make an arrest and the perpetrator is before the court within 24 hours.’



There are a number of other options available to prevent individuals getting to the stage where an injunction or an ASBO is necessary. One example is an acceptable behaviour contract, where a youth signs a contract promising to do or not to do specific actions. The terms of the contract are agreed between the individual and police, landlords or even schools.



It is also worth noting that most professionals say there are specific occasions where the ASBO does work. Ms Crossley gives an example: ‘If you get a family who are being put at risk of eviction if one member of the family has an ASBO, then that does sometimes deter them from anti-social behaviour – that fear of evicting the whole family.’



Many of those living in difficult communities believe more ASBOs are needed. Mr Braun says that tenants and neighbours are more aware of their rights, ‘which puts pressure on the local authorities to act’. More people are complaining about local authorities failing to act and bring ASBOs against disruptive neighbours. Complaints to the Local Government Ombudsman about anti-social behaviour increased by 13.5% in 2006/07. But, interestingly, these numbers also include people who are the subject of ASBOs and do not believe they should be. Recently, the ombudsman criticised Manchester City Council for using the ASBO process in respect of a resident without having taken steps to check the truth of the allegations made against her (see [2007] Gazette, 19 July, 20).



But it appears that people are beginning to look at the issue of anti-social behaviour from outside the legal framework. Last month, the chief constable of Cheshire police, Peter Fahy, issued a statement in response to the fatal attack on Garry Newlove in Warrington, observing that ‘parents should be the key to tackling this problem’, adding that ‘most of the behaviour is fuelled by alcohol’.



The problems of anti-social behaviour persist because the legislation deals with the problem but not the cause. As Mr Braun concedes: ‘All we are doing is moving the problem somewhere else.’



Polly Botsford is a freelance journalist