Legal Commentary
| Published date | 01 April 2004 |
| Date | 01 April 2004 |
| Author | Nigel Stone |
| DOI | 10.1177/147322540400400105 |
| Subject Matter | Articles |
Legal Commentary
Orders in Respect of Anti-social Behaviour: Recent Judicial
Developments
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Studies,
Elizabeth Fry Building, University of East Anglia, Norwich NR4 7TJ.
Email: n.stoneVuea.ac.uk
Power to make an anti-social behaviour order (ASBO), on ‘complaint’by either the
relevant local authority or the chief officer of police, was introduced by the Crime and
Disorder Act (CDA) 1998 s.1. As noted by the Divisional Court in the Sunderland Youth
Court proceedings outlined below, the process had proved ‘procedurally cumbersome
and time-consuming’(see Campbell, 2002), probably contributing to the decidedly
patchy pursuit of ASBOs by area, as reflected in national statistics for orders made in
the period 1 April 1999 to 30 September 2003 (Home Office, 2004). Compare for
example, a total of four orders made in Essex with 42 in Kent; 67 made in Merseyside
with 241 in Greater Manchester.
Helpful clarification of the status and significance of s.1 ASBOs had been provided
by the House of Lords in R (on the application of McCann) v Crown Court at Manchester
[2002] 3 W.L.R. 1313, confirming the admissibility of hearsay evidence and that the
standard of proof that ought to be applied in respect of allegations against the
defendant’s conduct should be that pertaining to criminal proceedings, despite the civil
nature of ASBO applications. However, continuing frustration expressed in some
quarters about the problematic and off-putting experience of making ASBO
applications prompted amendment of CDA 1998 by the Police Reform Act (PRA)
2002 ss62–5, not only by making various procedural changes but also giving additional
powers to regulate anti-social behaviour.
In summary, CDA 1998 s.1 (1A) and s.1A were introduced extending the scope to
apply on complaint for an ASBO to other ‘relevant authorities’beyond the police and
local authority. In addition, s.1B gives power to the County Court to make ASBOs,
while s.1D gives power to make interim orders. However, the most important
extension of CDA 1998 powers is contained in s.1C, enabling a court to make an order
on convicting a person in criminal proceedings. This Legal Commentary draws attention
to a cluster of High Court judgments given in late 2003 that illustrate some problematic
features of this stable of provisions.
Order as Pronounced or Order as Served?
Walkling (R. on the application of) v Director of Public Prosecutions [2003] EWHC 3139 (3
December 2003) concerned the potential tensions that can arise between the intention
of the court imposing a s.1 ASBO, as expressed at the time of announcing the order,
and the ambit of the ASBO as stated in the document served on the subject of the
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