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An anti-social behaviour order ( ASBO ) is a civil order made in the United Kingdom against a person who had been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders were introduced by Prime Minister Tony Blair in 1998, and continued in use until abolished in England and Wales by the Anti-Social Behaviour, Crime and Policing Act 2014 on 20 October 2014—although they continue to be used in Scotland and Northern Ireland. ASBOs were replaced in England and Wales by the civil and criminal behaviour orders. They were designed to address behaviours like intimidation, drunkenness, and violence by individuals and families, using civil orders rather than criminal sanctions. The orders restricted behaviour in some way, such as: prohibiting a return to a certain area or shop; or restricting public behaviours, such as swearing or drinking alcohol. Many saw the ASBOs as connected with young delinquents.Youth Justice Board Study (2006) Conducted by NACRO, Solanki, Bateman, Boswell and Hill
They are closely related to fixed penalty notices and related schemes such as penalty notices for disorder (PNDs) and penalty charge notices (PCNs), in both intent and date of introduction.
In a press release of 28 October 2004, Tony Blair and David Blunkett announced further measures to extend the use and definition of ASBOs." Press Briefing: 3.45pm Thursday 28 October 2004 ", 10 Downing Street. Retrieved 18 June 2006. The remit included:
The press release concluded by remarking:
On 25 October 2005, Transport for London announced its intent to apply for a new law giving them the authority to issue orders against repeat fare dodgers, and increased fines. Plans for £50 fare-dodger fines, BBC News, 25 October 2005. Retrieved 18 June 2006. By 31 March 2004, 2,455 ASBOs had been issued in England and Wales. On 30 March 2006, the Home Office announced that 7,356 ASBOs had been given out since 1999 in England and Wales." Asbo total hits 7,356", The Register, 30 March 2006. Retrieved 18 June 2006.
The Anti-Social Behaviour, Crime and Policing Act 2014 received Royal Assent in March 2014. This streamlined the tools available to tackle anti-social behaviour, and replaced the ASBO with an injunction (a civil order) and a criminal behaviour order (CBO) in England and Wales.
The British government introduced ASBOs through the Crime and Disorder Act 1998. In the UK, a CRASBO was a "criminally related" ASBO. One local authority published photos of those given ASBOs on an Internet site. Anti-social behaviour included a range of behaviours, such as: Home Affairs – Written Evidence: 19. Memorandum submitted by Napo, House of Commons, 22 March 2005. Retrieved 18 June 2006.
Pursuant to section 1(1) Civil Evidence Act 1995, an applicant (and a defendant) had the right to rely on witness statements without calling the makers of those statements—known as hearsay. If a party proposed to rely upon a hearsay statement, then the other party was entitled to ask the court for permission to call that witness for cross-examination.Civil Evidence Act 1995 s.3; Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999, r.4
If the court refused to grant such an application, then the defendant would be unable to cross examine the makers of the hearsay statements. Nevertheless, it was open to them, in accordance with the Civil Evidence Act, to submit that the court should place little or no weightCivil Evidence Act 1995 s 4(1) upon material that had not been tested by way of cross examination.
Section 4(1) Civil Evidence Act 1995 states that:
The High Court has emphasised that the use of the words "if any" shows that some hearsay evidence may be given no weight at all. R (Cleary) v Highbury Corner Magistrates' Court 2006 EWCA 1869 (Admin) For an ASBO to be made, the applicant had to prove beyond all reasonable doubt that the respondent had behaved in an anti-social manner. The applicant could rely on hearsay evidence. However, the Court of Appeal has stated that it does not expect a court to find that the criminal standard has been reached by relying solely on hearsay evidence. The Civil Evidence Act 1995 itself makes clear that courts should consider what weight, if any at all, attaches to hearsay material. In Cleary, the Court of Appeal again restated that courts should consider attaching no weight at all to such material, in accordance with the words of the statute.Cleary v Highbury Corner Magistrates & (1) Commissioner of Police of the Metropolis and others (2007) 1 WLR 1272; 2006 EWHC 1869.http://www.oup.com/uk/orc/bin/9780198763987/resources/updates/ch09_1008.pdf
It is for the court to decide what weight to give the hearsay evidence. The Court of Appeal has stated that the high standard of proof is difficult to meet if the entirety of the case, or the majority of it, is based upon hearsay evidence. M v DPP 2007 EWHC 1032 (Admin) The proper approach would be for a court to consider to what extent the hearsay evidence is, amongst other things, supported by other evidence, the cogency and similarity of supporting instances of hearsay evidence, and the cogency and reliability of contradictory evidence supplied by a defendant.
Where, for example, ten anonymous witnesses who are unrelated to each other each provide a witness statement as to the defendant's anti-social behaviour, where each statement refers independently to the same particular events, and where this is supported by a witness statement from a non-anonymous witness, such as a housing officer who confirms that residents have made complaints about a particular person over a period of time, then the court may be justified in according to the statements a fair degree of weight.
An order could contain only negative prohibitions. It could not contain a positive obligation.Crime and Disorder Act 1998, s1(4) and 1(6); R (Lonergan) v. Crown Court at Lewes (2005) 2 All ER 362 To obtain an ASBO, a two-stage test had to be satisfied by the applicant authority (see: s.1(1) Crime and Disorder Act 1998). The first test was that the defendant had committed acts causing or likely to cause harassment, alarm, or distress within six months of the date of issue of the summons. The second test was that an order was necessary to protect persons from further anti-social behaviour.
The applicant had to satisfy the court that the individual had acted in an anti-social manner—that is to say, in a manner that caused, or was likely to cause, harassment, alarm, or distress to one or more persons not of the same household as themself.Crime and Disorder Act 1998, s1(a) A court could order an ASBO only if such an order was "necessary".Crime and Disorder Act 1988 s1(b) Further, each prohibited act would usually be an act preparatory to a criminal offence, rather than the offence itself—but not always (see: Rabess v Commissioner of Police of the Metropolis 2007 EWHC 208 (Admin)). In addition, each prohibition itself had to be necessary.
An order had to be tailor-made for the individual defendant. The ASBO represented "a form of personalised criminal law." It had to be relevant to their particular anti-social behaviour. Orders should not have been drafted too widely or imprecisely. Each prohibition had to be necessary. R v. Dean Boness 2005 EWCA Crim 2395
An ASBO was very similar to a civil injunction, even though the differences are important. First: the injunction was supposed to protect the world at large, in a given geographical area, rather than an individual. Second: breach of an ASBO was a criminal offence to be tried in a criminal court, applying the criminal standard of beyond all reasonable doubt. (2025). 9781846610028, Jordans. ISBN 9781846610028 A power of committal to prison was available for breach of a civil injunction, but a court was unlikely to exercise that power. A person subject to an anti-social behaviour order where it did not follow a criminal conviction had an automatic right of appeal against both the making of the order and its terms to a higher court. There was also the availability of an appeal to the High Court by way of "case stated". There was no appeal against the variation of orders, and variation was used to add extra conditions, and to extend the duration of ASBOs.
An application for an ASBO was considered by the courts in its civil jurisdiction, and was a civil order. However, breach of an ASBO was a criminal offence, and conviction could result in up to five years' imprisonment (two for a minor). Subsequent legislation compelled magistrates to make a Parenting Order, where a person under the age of 16 breached their ASBO.Crime and Disorder Act 1998 s.8A(2), inserted by Crime and Security Act 2010 s.41
Other examples:
Other parties voiced concerns about the open-ended nature of ASBO penalties—that is, there was little restriction on what a court was able to impose as the terms of the ASBO, and little restriction on what could be designated as antisocial behaviour. In 2005, critics reported that around 3% of ASBO applications had been turned down." A triumph of hearsay and hysteria" The Guardian, 5 April 2005 In July 2007, the Local Government Ombudsman published a report criticising Manchester City Council for serving an ASBO based purely on uncorroborated reports of nuisance by a neighbour, and the Council agreed to pay £2000 in compensation. False' Asbo woman wins payout". BBC News, 5 July 2007
A 2005 memorandum submitted by the National Association of Probation Officers (NAPO) asserted that "there is ample evidence of the issuing of ASBOs by the courts being inconsistent and almost a geographical lottery. There is great concern that people are being jailed following the breach of an ASBO, where the original offence was itself non-imprisonable. There is also evidence that ASBOs have been used where people have mental health problems where treatment would be more appropriate. In NAPO's view, the time is right for a fundamental review of the use and appropriateness of Anti-social Behaviour Orders by the Home Office."
In 2002, Home Office data stated that in the cases where information was available, there was a high proportion where some mitigating factor appeared to have contributed to their behaviour. Almost used substances, and were consuming excessive amounts of alcohol. Overall, 44% were engaging in substance use or had a learning disability, and a further 16% included persons with psychological and behaviour problems in the family. Similar results were found in Scotland. A casefile review showed that 55% of those given ASBOs had substance use disorders, mental health, or learning disability problems. The Use of ASBOs in Scotland, H. Pawson, School of The Built Environment, Heriot-Watt University, Edinburgh, 2007).
In 2005, a survey of Youth Offending Teams by the British Institute for Brain Injured Children showed that 38% of ASBOs went to young people with significant mental disorders. Problems included: clinical depression, suicidal tendencies, autism, psychosis, personality disorders, learning disabilities, and ADHD; this raised the question of whether young people with these illnesses should be held to a lower standard of behaviour than others. By contrast, the same survey of ASBO teams gave only a 5% reported incidence of mental impairment. This massive difference suggests that most ASBO teams did not take into account mental health problems, even though the Home Office safeguards for vulnerable people in the ASBO process required it.
ASBO effectiveness was also questioned. In response to a House of Commons question, it was stated that 53.7% of ASBOs were breached in England in 2005; 69.4% in 2006; and 70.3% in 2007. In large cities, rates could be higher: the breach rate in Manchester reached 90.2% in 2007. This level of breaching raised an interesting issue. The first test to justify the issuing of an ASBO was that anti-social behaviour (ASB) had been proved to the criminal standard. The second test was that the order was necessary to prevent future acts of ASB, and provide protection to the victim(s). However, the criminal standard was not applied to the second test. Indeed, Lord Steyn stated:
According to government evaluations (e.g. Housing Research Summary No. 230; DfCLG) in the "ASB Intensive Family Support" (Sin Bin) projects introduced to supplement ASBOs, 80% of the families targeted had serious mental/physical health and learning disability problems; one in five families had children affected with attention deficit hyperactivity disorder, and 60% of the families were recognised as victims of ASB. Project managers described many families as "easily scapegoated" in neighbour disputes. HRS 230 called for a review of both ASBO policy and investigation procedures in order to make the whole process fairer.
A later study of 53 projects by the National Centre For Social Research noted that 42% of children with mental health problems were reported to have ADHD or hyperactivity, and 29% were reported with depression or stress. Amongst adults, 69% had depression.
In the UK, there was criticism that an ASBO was sometimes viewed as a badge of honour by the youth.
Nacro, the biggest criminal justice-related charity in England and Wales, published two reports: the first claimed that ASBOs were a failure, due to being costly and slow to obtain; and the second criticised their use by the courts, with assertions that they were being used too hastily, before alternatives had been tried.
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