Order, Order! Part 2
| Date | 01 August 2012 |
| Author | David Kirk |
| Published date | 01 August 2012 |
| DOI | 10.1350/jcla.2012.76.4.775 |
| Subject Matter | Opinion |
OPINION
Order, Order! Part 2
David Kirk*
Chief Criminal Counsel, Enforcement and Financial Crime,
Financial Services Authority
In August 2008 I wrote an Opinion about ASBOs, FROs, SCPOs and all
manner of other orders that litter the criminal law landscape, with the
purpose of preventing, deterring and punishing criminal and quasi-
criminal conduct without going through much in the way of due
process.
ASBOs are again in the news, with new proposals being announced
by the Home Secretary. At the same time, the Ministry of Justice has just
published a Consultation Paper proposing that we should adopt a US
means of dealing with serious fraud, the Deferred Prosecution Agree-
ment.1This is another form of criminal sanction that skirts round the
edges of due process, by offering not to prosecute in return for promises
that the criminal conduct will not be repeated.
The search for the Holy Grail of a solution to the scourge of anti-social
behaviour goes on. As I write this, in May 2012, there are reports that
the ASBO is not working, and that the Home Office plans to replace it
with a basket of new measures, including a Criminal Behaviour Order
(already given the nickname of a ‘Crimbo’) which will be used to ban
individuals from particular activities or places; and a Crime Prevention
Injunction (or CPI) which will be able to ‘stop bad behaviour before it
escalates’.
The history of the ASBO was already chequered when I wrote about
it in 2008, and its use has been in steady decline since. The first such
order was made in April 1999, and a total of 20,335 have been issued. In
2005, 4,122 orders were made. In 2010, it was down to 1,664. At the
same time the breach rate increased, between 2003 and 2009, from 40
per cent (a high enough figure) to 56 per cent, suggesting either that
contempt for ASBOs was rife, or that the policing of them was effective,
or perhaps both. But news of the demise of the ASBO was not greeted
with indifference and scorn in all quarters. News reports from a village
in the Midlands suggested that ASBOs had transformed the life of the
community. A community action group member is quoted as saying:
‘Youngsters did use it as a badge of honour at first, but they found that
the consequences for them were so restrictive and frightening that they
corrected their behaviour. It really worked.’ There is indeed nothing like
the cancellation of a service or project, however much it has been
* The views expressed in this article are those of the author and do not necessarily
reflect the views of the Financial Services Authority or the Journal of Criminal Law.
1Deferred Prosecution Agreements: Overview, Cm 8348, available at https://consult.justice.gov.
uk/digital-communications/deferred-prosecution-agreements, accessed 11 June 2012.
277The Journal of Criminal Law (2012) 76 JCL 277–279
doi:10.1350/jcla.2012.76.4.775
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