A Suicidal Woman, Roaming Pigs and a Noisy Trampolinist: Refining the ASBO's Definition of ‘Anti‐Social Behaviour’
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00581.x |
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
A SuicidalWoman, Roaming Pigs and a Noisy
Trampolinist: Re¢ning the ASBO’s De¢nition of
‘Anti-Social Behaviour’
Stuart Macdonald
n
This article discusses the de¢nition of anti-social behaviour employed by section 1(1)(a) of the
Crime and DisorderAct 1998for the purposes of the Anti-Social Behaviour Order. It argues that,
if the ASBO is toremain at the forefront of the Government’s campaign against anti-social beha-
viour, this section should be amended. The article begins by outlining the claimed bene¢ts of,
and critics’concerns about, the de¢nition, arguing that the di¡erence of opinion stems from dif-
ferent views of state power. Itthe n argues that the ASBO has been employed for social control,
often at the expense of more constructive forms of intervention, and that this has shown New
Labour’s willi ngness tovest enforcement agencies with the wide discretion conferred by section
1(1)(a) to havebee n misplaced.Fi nally, it proposes a re¢ned version of section 1(1), which focuses
the Order on the cases for which it was purportedly designed whilst maintaining any bene¢ts of
the broad de¢nitional approachcurrently taken in section 1(1)(a).
INTRODUCTION
In June 1995 New Labour published the consultation paper AQuiet Life.
1
This
documentclaimed that consultationwith the police, local authorities, councillors
and MPs had revealed‘intense dissatisfactionwith the extent and speed of existing
procedures’
2
used to tackle anti-social behaviour. This ‘system failure’
3
meant that
‘new remedies [needed] to be developed.’
4
The remedy which A Quiet Life pro-
posed essentially amounted to a ‘special form of injunction,’
5
breach of which
was to be punished with criminal penalties. In this embryonic form the remedy
was called theCommunity Safety Order. Just overthree years laterNew Labour’s
¢rst major criminal justice legislation ^ the Crime and Disorder Act 1998 ^
received Royal Assent, and the new remedy, which by now had been renamed
the Anti-Social Behaviour Order (ASBO), found pride of place in section 1 of
the Act. Further evolution occurred following the disappointing initial uptake
of the ASBO,
6
with steps being taken to enhance its e¡ectiveness in the Police
Reform Act 2002, the Anti-Social Behaviour Act 2003 and the Criminal Justice
n
Schoolof Law, Universityof Swansea.I would like totha nk all those withwhom I have discussed the
ideas presented in this article, and i n particularAndrew Halpin and the anonymous referees for their
invaluablecomments on earlier drafts.
1A QuietLife:Tough Action on CriminalNeighbours (London: Labour Party, 1995).
2ibid,6.
3ibid,6.
4ibid,8.
5ibid,8.
6 Of the 4649 ASBOs issued to the end of 2004, only 466 were issued between 1 April1999 and 30
September 2001, with a further 871imposed between1 October 20 01and 30 June 2003 and 3312
between 1July 2003 and 31December 2004 (¢gures taken from the Home O⁄ce website).
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(2)MLR 183^213
Act 2003. After these layers of reform we now have a complex regime governing
AS BO s, c on ta in ed i n s ec ti on s 1, 1A, 1AA , 1AB, 1B, 1C, 1D a nd 1E o f t he Cr im e a nd
DisorderAct (to which will soon be added sections 1F, 1G,1H and 1I).
7
Applications for ASBOs may be brought by local authorities, chief o⁄cers of
local police, the British Transport Police, registered social landlords, Housing
ActionTrusts and County Councils.
8
Applications may be made to the Magis-
trates’ Court,
9
County Court
10
or Criminal Court,
11
although consultation
requirements apply before an application can be made to either the Magistrates’
Court or County Court.
12
There is also provision for interim ASBOs.
13
The reci-
pient of an Order must be at least 10 years of age, he must have acted in ‘an
anti-social manner, that is to say, in a manner that caused or was likely to cause
harassment, alarmor distress to one or more persons notof the same householdas
himself,’ and an ASBO must be considered necessary to protect other people from
further anti-social acts by him.
14
The prohibitions imposed by the Order must
themselves be necessary to protect people from further anti-social acts by the
defendant,
15
maycover anyde¢ned area within, or indeed the whole of, England
andWales,
16
and must last for a minimum of twoyears (and may be inde¢nite).
17
During the initial two years of an Order it may only be discharged with the con-
sent of both parties,
18
thereafter either the applicant or the defendant may apply
for the ASBO to be varied or discharged.
19
Breach of the Order without reason-
able excuse is a criminal o¡ence punishable by up to ¢ve years’ imprisonment
and/or a ¢ne.
20
Proceedings for breach may be brought by either the CPS or, in
certain circumstances, by a local authority.
21
Ever since the publication of AQui et Life there has been strong opposition to
the ASBO. As the new remedy made its journey ontothe statute book six leading
academics (Andrew Ashworth, John Gardner, Rod Morgan, ATH Smith,
Andrew von Hirsch, and Martin Wasik ^ hereafter Ashworth et al)wroteaseries
of three articles in which they condemned the ASBO as ‘Howardism with a
7 These further changes will be made by sections 139^143 of the Serious Organised Crime and
Police Act 2005 and section 20 of the Drugs Act 2005,and include greater powers for the Home
Secretary to specify relevant authorities for the purposes of applyingfor an ASBO; provision for
interim ASBOs pending imposition of an ASBO upon conviction under s 1C; the relaxation of
reporting restrictions in proceedingsfor breach against10^17 year-olds; special measures forwit-
nesses giving evidence at applicationsfor ASBOs; and the introduction of Intervention Orders for
those aged 18 and over receiving an ASBO.
8s1(1A).
9 s 1(3).
10 s 1B.
11 s 1C .
12 s 1E.
13 s 1D.
14 s 1 (1).
15 s 1(6 ).
16 ibid.
17 s1(7).
18 s 1(9).
19 s 1( 8).
20 s 1(10). Anyone convicted of breachinga n ASBOmay not be conditionally discharged (s1(11)).
21 s1(10A).
A Suicidal Woman, Roaming Pigs and a NoisyTrampolinist
184 rThe Modern Law Review Limited20 06
To continue reading
Request your trial