The usual rules do not apply in the crackdown against anti-social behaviour. But much of this may be political posturing, writes Frank Dignan

Brian Hagan is another Norfolk farmer to earn a place in legal history. He was made subject of an anti-social behaviour order (ASBO) after magistrates heard how his pigs wandered onto neighbours' land, damaging gardens and crops. It is the first time an ASBO has been used in relation to farm animals.


ASBOs are a part of the government's programme to control unruly behaviour. Their origins date from the early 1990s when Tony Blair, as shadow home secretary, signalled a sea change in Labour's attitude on crime, with his now famous comment about 'being tough on crime, tough on the causes of crime'. When introduced under the Crime and Disorder Act 1998, they reflected widespread concern about serious, persistent, low-level disorder, much of it perpetrated by juveniles.


Anti-social behaviour has a wide legal definition, aimed at activities that blight communities. The orders have a wide application, which is part of the problem. Although ASBOs are civil sanctions, breaches are a criminal offence, punishable by imprisonment. Juveniles, normally protected by the law from being named, can be identified. Whether it is a good idea to name and shame tearaways is a different matter.

The notoriety gained by some adolescent from having his face plastered across the front page of a local newspaper could well be a 'badge of honour'. This raises issues about a juvenile defendant's right to privacy under article 8 of the European Convention on Human Rights.


ASBOs' civil nature means hearsay and professional witness evidence can be heard. How satisfactory is it to base a conviction on evidence that is anonymously given? While the criminal standard of proof is applied to allegations against a defendant, the question of the need for an order does not involve a standard of proof. It has been held that it is an 'exercise of judgement or evaluation'.


It is clear that the effect of the behaviour on other people determines whether the behaviour is anti-social. The agency applying for the order does not need to prove the defendant's intention.


ASBOs are designed to be community based, involving local people in collecting evidence and also reporting breaches. They have some undoubted advantages; for example, a crack house can be closed down without the delay that might accompany possession proceedings. However, ASBOs themselves are criticised as bureaucratic and time-consuming to administer.


ASBOs straddle the criminal and civil law and blur the distinction between criminal penalties and civil wrongs. They also involve local authorities in law enforcement, which is not a role they have traditionally undertaken.


An interim ASBO restricts someone's movements before they have been convicted. Furthermore, the concept of the ASBO goes against the principle that before someone can suffer a penalty, they must have been convicted of a specific offence. Now that it has been established in such proceedings that the usual rules of evidence do not apply, the danger is that this principle could be extended to other areas of law.


Much of the conduct addressed by ASBOs might just as easily be dealt with by use of breach of the peace procedures or under the Public Order Act, which provides protection for the accused. Imprisonment as a penalty for breach of a civil order raises further issues. Moreover, there is the suspicion that ASBOs are designed to create the impression of activity by the authorities, responding to the sort of behaviour that law abiding people would disapprove of. Their impact may be more illusory than real.


Barrister Frank Dignan is a senior lecturer in criminal law at Leeds Metropolitan University