Order, Order!
| Date | 01 August 2008 |
| Published date | 01 August 2008 |
| Author | David Kirk |
| DOI | 10.1350/jcla.2008.72.4.259 |
| Subject Matter | Opinion |
OPINION
Order, Order!
David Kirk*
Director, Fraud Prosecution Service
The newest and shiniest plaything in the criminal justice toy cupboard is
the ‘order’. The recent spate of legislation creating orders began with the
ASBO (anti-social behaviour order) introduced by Home Secretary Jack
Straw in the Crime and Disorder Act 1998. Straw included ‘squeegy
merchants’ in his list of people who behaved in an anti-social way,
having presumably been personally caused ‘harassment, alarm or dis-
tress’ by the antics of car windscreen cleaners.
Although the Guardian reported on 2 November 2006 that ASBOs
were regarded by teenagers as more of a ‘badge of honour’ than a
punishment, a 2005 MORI poll found that 82 per cent of people ques-
tioned were in favour of them. Only 32 per cent, however, thought that
they were effective, and the Guardian report noted that 49 per cent of
those ‘awarded’ an ASBO found themselves back in court for breach of
the conditions of the order.
The statistics also show that the number of ASBOs issued in England
and Wales between 1999 and 2006 was a relatively low 12,675. I was
pleased to see that my home county of Dorset vied with Dyfed Powis,
Gloucestershire, Lincolnshire, Northants and Wiltshire for the honour of
imposing fewer than 100 ASBOs during the seven years included in the
survey. It is interesting to see, however, that in all police force areas the
numbers of orders made by magistrates increased year on year up to
2004, with a particularly sharp increase between 2003–04, but that since
2004 numbers have either straight-lined or reduced (Dorset’s ASBOs
doubled in the period 2003–04 from 17 to 36, but have since fallen back
to 19 in 2005 and 15 in 2006).
The defining characteristics of an order usually include the lack of
a requirement to prove that the respondent has been convicted of a
criminal offence, and the aim to regulate and deter future misconduct.
While, however, there does not need to be a criminal conviction, the
conduct complained of (which may be criminal conduct, but may also,
for example, be the non-criminal activities of being noisy or abusive, or
failing to keep livestock under control) must be proved beyond reason-
able doubt (McCann v Manchester Crown Court [2002] UKHL 39). This
reflects an ambivalence at the heart of the order regime: if an offence can
be proved, why not prosecute? If there is no offence, what is the
justification of bringing what are in effect criminal proceedings? The
partial answer to this lies in the fact that ASBOs do not create a criminal
record (and therefore do not brand the miscreant forever and set him off
* The views expressed in this article are those of the author and do not necessarily
reflect the views of the Crown Prosecution Service or the Journal of Criminal Law.
259The Journal of Criminal Law (2008) 72 JCL 259–261
doi:1350/jcla.2008.72.4.502
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