Anti-Social Behaviour Orders: Their Legal and Jurisprudential Significance
| Author | Alec Samuels |
| DOI | 10.1350/jcla.69.3.223.64774 |
| Published date | 01 June 2005 |
| Date | 01 June 2005 |
| Subject Matter | Comment |
COMMENT
Anti-social Behaviour Orders:
their Legal and Jurisprudential Significance
Alec Samuels
Civil or criminal
The anti-social behaviour order (ASBO) is a curious jurisprudential
hybrid, a civil order made in the magistrates’ court or Crown Court, a
breach carrying criminal sanctions.1The ASBO is a civil order with
a preventive not a punitive purpose, and hearsay evidence is admissible,
and compatible with a fair trial (European Convention on Human
Rights, Article 6), but in view of the seriousness of the matter and the
potential criminal sanction the alleged anti-social behaviour should be
proved to the criminal standard.2Restrictions or prohibitions imposed
are not a penalty in the criminal sense. The CPS is not involved; there is
no prosecution, no conviction, no criminal record. The concept of the
civil order to restrain anti-social behaviour, a sort of injunctive process,
a breach carrying a criminal sanction, is becoming increasingly common
in the law.3
Definition
Anti-social behaviour is statutorily defined as the behaviour of a person
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 himself
and an application for an order may be made where such order is
necessary to protect persons in the local government area in which the
harassment, alarm or distress was caused, or was likely to be caused,
from further anti-social acts by him.4
1 The most authoritative statement of the law is to be found in R (on the application of
McCann) v Crown Court and Manchester [2003] 1 AC 787 on the following issues:
Civil not criminal (at [19–27] and [28–34], Lord Steyn; [51–80], Lord Hope).
Effect of Art. 6, fair trial (at [28–34], Lord Steyn; [57–64], Lord Hope).
Admissibility of hearsay evidence (at [35–36], Lord Steyn).
Standard of proof (at [37], Lord Steyn; [81], Lord Hope).
Remedies (at [17], Lord Steyn).
See also S. Macdonald, ‘The Nature of Anti-social Behaviour: R (on the application of
McCann) v Crown Court at Manchester’ [2003] 66 MLR 630–9, containing a good
exposition of the relevant Strasbourg jurisprudence.
2R (on the application of McCann) v Manchester Crown Court [2003] 1 AC 787. Costs may
be awarded, but in the nature of things costs orders are likely to be unenforceable
and ineffective.
3 For example, the Football Spectators Act 1989, as amended by the Football
(Disorder) Act 2000. R (on the application of McCann) v Crown Court of Manchester
[2003] 1 AC 787 at [17], per Lord Steyn.
4 Crime and Disorder Act 1998, s. 1, as amended.
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