Anti-social behaviour orders

There are more applications both in civil and criminal proceedings, for anti-social behaviour orders (ASBO).

When sought in civil proceedings, in the magistrates court, advocacy assistance is available to defence solicitors.

This is unaffected by recent scope changes.

An interim anti-social order could be obtained without notice to the defence as it was not a determinative decision.

There was no requirement for exceptional circumstances before an interim order could be made.

However, if an application to discharge was made the burden of proof remained on the person seeking the ASBO.

R (Kelly) v Leeds Magistrates Court [2004] 1 All England Reports 1333; R (M) v Lord Chancellor (2004) The Times, 31 March

The best interests of a child are a, but not the, primary consideration.

To challenge an interim order, applications should be made to discharge or vary the order or the matter should be dealt with at the substantive hearing, or there should be an appeal to the Crown Court, or an application for a case stated, and only then an application for judicial review.

R (A) v Leeds MC (2004) The Times, 31 March

An ASBO was available when it was proved to the criminal standard that a prostitute's conduct alone or with others was likely to cause harassment alarm or distress to others even if none had yet been caused and there was no intent so to act.

No joint purpose was required.

The order must be necessary to protect others from further anti-social acts (see Lancashire Constabulary v Potter, (2003) The Times, 19 November.

Where an anti-social behaviour order is sought on conviction of a criminal offence there must be clarity as to the basis for, and the scope of, any order made.

Notice was to be given to the defence that an order was under consideration.

The discretion to make such an order must be exercised fairly, reasonably and with regard to all the relevant circumstances.

Consistency in the exercise of the discretion was an aspect of fairness; orders must be proportionate and an order without geographical limit was too wide.

C v Sunderland YC [2004] Crim LR 75

There will be limited circumstances in which a court should impose an order to come into effect at the end of substantial sentence, although a geographical restraint might be used to supplement licence conditions.

ASBOs were more relevant for conduct involving graffiti, abusive and intimidating language, excessive noise, fouling with litter, drunken behaviour and drug dealing.

The test was necessity to protect the public from further anti-social acts and the terms must be clear and understood by the defendant and made in his presence.

R v Parkin (2004) The Times, 19 February

This case causes some concern because it approves the practice of including within ASBOs terms that amounted to no more than that the defendant should comply with section 5 of the Public Order Act that has the effect of turning an offence carrying only a fine into one carrying five years' imprisonment.

This must clearly be relevant in mitigation should there be a breach.

It is suggested that there would have to be a persistent series of breaches to justify a penalty greater than is provided by the Public Order Act.

An ASBO takes effect as soon as it is pronounced and not just when a typed record is produced.

By Anthony Edwards, TV Edwards, London