Anti-social behaviour orders have their place in reducing crime, but Roger Smith explains why such instruments in civil form shock rather than provide a proportionate response to an offence


David Blunkett reluctantly accepted the consequences of behaviour that followed from having ‘loved not wisely, but too well’. Another of the former home secretary’s great passions – anti-social behaviour orders (ASBOs) – should go as well.


Jack Straw oversaw the birth of ASBOs in the Crime and Disorder Act 1998. But it was Mr Blunkett who established a high-profile anti-social behaviour unit, appointed ‘ASBO ambassadors’, and encouraged papers and booklets galore (all downloadable from the government Web site, www.crimereduction.gov.uk), notably the action plan on tackling anti-social behaviour.


Yet another home secretary will reap the reward for Mr Blunkett’s Serious Organised Crime and Police Bill. This promises the reversal of the presumption of privacy for a child in criminal proceedings where these relate to the breach of an ASBO. Little did the then home secretary care that this is in flagrant breach of article 40(2) of the UN Convention on the Child, which gives children a right ‘to have [their] privacy fully respected at all stages of the proceedings’. The Bill may even be used to allow community groups to take proceedings – opening a Pandora’s box of neighbourhood vigilantes against local scapegoats.


Mr Blunkett’s enthusiasm affected a swathe of local authorities. Manchester proudly announces on its Web site that it ‘now leads the UK in the use of ASBOs’. The London Borough of Camden snaps at its heels. Its anti-social behaviour action group (ASBAG) site lists no fewer than 39 separate downloadable council action documents. Another entry promotes Camden’s ‘landmark use’ of ASBOs in the fight against fly-posting.


Actually, most councils have approached ASBOs with care. The latest figures show that slightly more than 3,000 had been issued in England and Wales to the end of June last year. If you apply for one, you basically get it; only 42 were refused.


However, the official statistics do not distinguish between ASBOs attached to a criminal finding of guilt, freestanding ASBOs, county court orders against tenants, and interim ASBOs. We do know that about 30% of the lot seem to be breached. Breach creates a criminal offence, punishable by up to five years’ imprisonment.


No one would deny that anti-social behaviour is a problem. The crime reduction Web site gives three case studies where, it argues, ASBOs have proved successful. They reveal situations where the state needed to intervene, for example, in the case of a ‘relatively isolated’ village where groups of young people ‘drank excessively, consumed drugs and committed breaches of the peace, nuisance, public order and minor damage offences’. Prostitution in large cities is another problem, as is a 13-year-old whose behaviour precipitated ‘arson against property… racial harassment, intimidation, robbery, and the petrol bombing of a car’.


Note that all three examples relate to existing offences and might have been pursued by a police authority using existing powers and mobilising the local community. ASBOs probably facilitated that mobilisation, but it could have been done anyway.


All the agencies involved, even the Home Office, agree that the total package for dealing with anti-social behaviour requires resources such as youth clubs or community mediation, assistance and encouragement for individuals, the deployment of which should dwarf a limited use of coercive powers. The threat of an ASBO is often claimed to precipitate the first serious engagement by the authorities in a problem. That may be bureaucratically understandable, but it is not politically justifiable.


The largest problem is with stand-alone ASBOs. These are civil in form, allowing hearsay evidence. They require someone to act in ‘a manner that caused or was likely to cause harassment alarm and distress to one or more persons not of the same household as himself’. The alarm may thus be conjectural, not actual – a policeman may just say it is likely.


It took litigation to establish that ASBOs must be proved to a criminal standard (Clingham v Kensington and Chelsea Royal LBC; R McCann v Manchester Crown Court [2003] 1 AC 787). There remains no objective and consistent national test of the manner in which someone may trigger the ASBO process. Breach gives rise to criminal proceedings that can result in imprisonment, yet the terms of ASBOs are not always proportionate (though they should be under the Human Rights Act) or even relevant to the original behaviour – you can be banned from areas you have never even visited. The criminal sanction for civil proceedings allows the circumvention of restrictions on criminal prosecution, for example, in relation to warnings for soliciting. ‘Naming and shaming’ has become part of a national bloodsport. ASBOs keep creeping out to the margins, dealing one day with abusive pensioners and another with careless pig farmers.


Thus, stand-alone ASBOs are a jurisprudential Frankenstein, cobbled together in the satanic mills of the Home Office out of disparate parts of the justice system. Their effectiveness depends in large part on their ability to shock. They do. Mr Blunkett gave every impression of enjoying the discomfort of lawyers, constitutionalists and civil libertarians. He has gone – ASBOs should follow.


Roger Smith is director of the law reform and human rights organisation, Justice