Anti Social Behaviour in UK Law

We do not go so far as to suggest that anti-social behaviour orders are necessarily inappropriate in cases with characteristics such as the present. But where custodial sentences in excess of a few months are passed, and offenders are liable to be released on licence, circumstances in which there is demonstrable necessity to make anti-social behaviour orders are likely to be limited.

In our judgment this decision of the court and the earlier case of C serve to demonstrate that to make an anti-social behaviour order in a case such as the present case, where the underlying objective was to give the court higher sentencing powers in the event of future similar offending, is not a use of the power which should normally be exercised.

Although some kinds of gang activity may be classified under the generic description of anti-social behaviour, section 1(1) of the Crime and Disorder Act 1998 was not enacted with a view to dealing specifically with the consequences of gang culture.

It follows from the requirement that the order must be necessary to protect persons from further anti-social acts by him, that the court should not impose an order which prohibits an offender from committing a specified criminal offence if the sentence which could be passed following conviction for the offence should be a sufficient deterrent.

While section 1C does not prescribe any particular procedure for making an order, whether the proceedings are civil or criminal it is common ground that, in making an order, the Magistrates' Court must act fairly and have regard to all relevant considerations. What fairness requires and what considerations are relevant will depend upon the circumstances of each particular case.

We have had our attention drawn to other cases, including, particularly, the case of P heard in February of this year by the Lord Chief Justice, Richards J and Henriques J, where the orders are considered and the following principles emerged. The test for making an order is one of the necessity to protect the public from further anti social acts by the offender.