CRASBOs, ASBOs, ROs and the upcoming CRIMBO
The rise of acronyms in British law…
In 1998 during the reign of Tony Blair and the Labour government, the Crime and Disorder Act came into British Law and with it came the ASBO or “Anti-Social Behaviour Order”. This piece of legislation was strengthened by the Police reform Act 2002 and the Anti-Social Behaviour Act 2003.
Designed so it could be used as a civil order (between different people without the need for arrest, conviction and so on) or as part of a punishment and preventative strategy upon conviction – the CR(iminal)ASBO – councils and authorities across the country viewed the new legislation very differently.
Who did they target?
While ASBOs were not originally intended for use on people under the age of 16, anyone over the age of criminal responsibility (10 years of age) could be given one. The orders would be “tailor-made” for the person in question as “a form of personal criminal law” (Blackstone’s Guide to Crime & Disorder Act 1998) and used against those convicted of criminal offences as well as those who had not been.
In order to be “eligible” for an ASBO, you would have had to commit some form of anti-social behaviour which is defined as acting “in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons”. This alarmingly vague definition meant that pretty much anyone could end up acting in an anti-social manner and potentially find themselves the subject of an order.
How did they work?
ASBOs were designed to restrict certain behaviour – for example, if someone has been causing problems in specific shops or areas, they could be directed not to enter those areas. Other behaviour such as drinking in public or swearing, attending football matches, etc. could also have restrictions placed upon them.
If used in the civil courts, for example if someone is causing problems in their neighbourhood and the rest of the community take them to court to stop their behaviour, the evidence used against them must be enough that it is beyond reasonable doubt that they are actually causing trouble. It was claimed that the ASBO would attempt to correct minor issues that did not warrant criminal prosecution.
An order could last for two years, but could be extended if problems continued. A breach of such an order could land a person with a large fine or a five-year prison sentence (or two years for a minor breach).
So what was the problem?
One of the initial criticisms was that a defendant was not necessarily invited to court in order to give their side of story. Immediately this caused concerns as to whether they were essentially being put on trial without being able to defend themselves and questions were raised as to whether allegations were being corroborated and proved before being believed.
Criticisms ranged from suggestions that “youth delinquents” saw the orders as a “badge of honour” (undermining their role as a deterrent) to complaints that civil orders were too slow and costly to obtain. Criminal orders, conversely, were seen as being used too hastily by the courts without other alternatives being first considered. Even NAPO (the National Association of Probation Officers) criticised ASBOs, stating that the original purpose of ASBOs had been abused and that it was a “geographic lottery” as to who would get served with one – it was too inconsistent across the country.
In addition to this, ASBOs did not address possible underlying issues and root causes of problems such as family issues, conditions such as ADHD (Attention Deficit Hyperactivity Disorder), poverty, drug/alcohol abuse and mental health issues and in cases where these could be factors in the behaviour of a person, treatment and support would surely have been a more effective remedy. Looking at various case studies, it is clear that there were numerous occasions in which someone was in obvious need of help and was instead dismissed and served with a court order instead.
The Labour government was repeatedly criticised on various occasions for being too obsessed by numbers and figures and this certainly seems to have been the case again here.
In one year alone, NAPO collected 34 different examples of the difficulties associated with ASBOs. Statewatch’s ASBOwatch also collected hundreds of examples of the various times ASBOs have been served. It is hard to pull out just a few of these as so many are difficult to believe (see the full report at the link provided below). Cases include one in which a prostitute was given an ASBO in which one of the conditions was that she could not carry condoms without a certain area. She breached her order by receiving free condoms from her drug clinic which was inside the restricted area.
An 18-year-old was prevented from congregating with three or more other youths and was subsequently arrested when entering a local youth club. The club was seen as a successful place, “providing a valuable service to young people” and the session scheduled for the evening was about dealing with anti-social behaviour.
Beggars have been banned from begging or saying/doing certain things whilst begging and also face jail or fines if they breach their orders. Some have received long (and repeated) prison sentences for offences that in themselves are not imprisonable.
In other cases, youths have been banned from using the word “grass”, playing football in the street and loitering and other people have been “ASBOed” for fare evasion, feeding birds, slow-clapping and being sarcastic to neighbours, wearing skimpy underwear*, noisy sex, repeated suicide attempts and a rooster was supposedly given an order for crowing loudly and constantly.
*in this case, neighbours were given diaries by the police so that they could note down when the woman in question could be seen at her window, door or in her garden in her underwear – a new twist on the idea of neighbourhood watch…
Of course, there are times when people are being abusive or are acting antisocially. You could say that action needed to be taken against the two guys who repeatedly liked to “dine and dash” (where you eat in a restaurant or cafe, etc. and then leave without paying) and in incidents where vandalism or other damage occurs or neighbours are being kept awake by loud noises (or the woman who nagged her husband constantly and loudly) but did these people really deserve to be facing prosecution and potentially five years in prison for their activities, especially those that are not criminal offences in themselves? And what about the continued restriction on behaviour of those convicted of offences even after they have served their sentences? See this Corporate Watch article for more information about the life-time ASBOs originally served on people convicted of offences relating to the SHAC animal-rights campaign.
Another animal-rights activist was given a 5-year ASBO on conviction of a non-animal-rights offence, but the order included restrictions that related to an unsubstantiated allegation of harassment which had previously been made against him and for which arrest he is currently taking the police to court! Not only was he prevented from entering two boroughs of London, but was also told he could not carry a camera or loudhailer on a demonstration or be present at any demonstration of less than 100 people where a loudhailer was in use. He was also not told about the court date and was informed by a police officer whilst on a demonstration that he now had an ASBO. After appealing the decision, he fortunately succeeded in overturning it.
Matt Foot, writer for the Guardian newspaper, criminal defence solicitor and coordinator of campaign group “Asbo Concern” has written a number of articles, including “Asbo-lutely farcical” and suggested that “It costs £36,000 to lock someone up for a year in our already full prisons. Wouldn’t it be better in many cases to use that money to provide facilities such as youth centres and proper support for beggars and prostitutes?”
The future…
Perhaps taking into account the above criticisms and concerns or perhaps just being fed up with the number of times ASBOs are breached and complaints made about the government, in 2010 the Home Secretary, Teresa May, announced plans to scrap the orders in favour of more “community-based policies”. This remained pretty vague… Then in 2012, plans were announced to introduce “Crime Prevention Injunctions” (CPIs) and “Criminal Behavious Orders”, nicknamed “CRIMBOs” in the media.
The government stated that these new initiatives would be easier to enforce, would need a lower standard of proof in the court, include powers to imprison anyone above the age of 14 and would allow authorities to “fast-track punishments to tackle anti-social behaviour”. CRIMBOs would be used against those convicted of offences and the CPIs would remain a civil matter. Breaches of these orders would potentially land you with “only” 3 months imprisonment or a £2500 fine.
Again, these new plans were controversial, being described as a “knee-jerk reaction” and the government, once again, being accused of showing a lack of support to young people. The Standing Commissioner for Youth Justice stated that the new orders could “unnecessarily fast-track children into a legal procedure which we know from experience is not successful at addressing root causes of their behavior”. Mediation, positive conflict resolution, treatment for conditions and “acceptable behaviour contracts” (made with consent and input from the person in question) have been suggested as possible alternatives for yet another badly-thought-out government initiative.
We are yet to see what the future holds for us in this respect.
Restraining Orders.
Of course, while we eagerly await CRIMBO, we still have the “Restraining Order” which can be used by the courts regardless of whether someone is found guilty of an offence or acquitted. Again, they are supposed to be a “preventative” remedy, in that they stop future occurrences of the unwanted behaviour or offences. They were brought in with the Protection from Harassment Act 1997 which was amended by the Domestic Violence & Victims Act 2004, again initially claimed to be for use against people harassing, stalking or otherwise abusing others and could only be used against those who had been convicted of harassment, domestic violence or putting another person in fear of violence.
When the powers were amended, a new wider range of circumstances could land someone with a restraining order, so long as there appears to be a need to protect someone from the actions of a person convicted of an offence. Misuse of restraining orders is claimed to be widespread and the breach of an order can again see someone being sentenced to five years in prison (if dealt with by a Crown Court) or six months imprisonment (Magistrate’s Court) or a fine.
In October 2010 four people were convicted of an offence when they had participated in a peaceful lock-on protest at a stall selling fur at a large christmas fayre. Despite the fact that all four were locked-on to eachother and the stall and were unable to move, those running the stall convinced the judge in the case that they were afraid of violence by the defendants. After yawning his way through the defence arguments, he found them guilty of causing “harassment, alarm or distress by using threatening, abusive or insulting words or behaviour or disorderly behaviour” under section 5 of the Public Order Act 1986 and served them immediately with 2-year restraining orders. These orders were made to “protest fur traders generally” and prevented the defendants from entering any shop, stall or exhibition where fur was being sold or displayed.
While you may argue that preventative measures need to be tried in order to try and stop certain activities from taking place, do these orders really help the wider community? The stigma attached to having such an order if you are already suffering from mental health issues or other conditions could certainly make matters worse. Additionally, as many orders are criticised as being unnecessary and the power to serve them as being misused, do they really help stop such unwanted behaviour or just make matters worse? Preventing someone from entering a certain area could end up serving only to move actual anti-social behaviour into a different place, instead of addressing the root causes. Additionally, orders are being used to criminalise otherwise non-criminal acts and to prevent activities such as protest which are fundamental human rights. And with the continuing vagueness of how future orders will work and involve the community, it does not give too much hope of anything changing for the better.
May 2013