Labour is urging the government not to scrap ASBOs, asserting them as crucial in keeping crime down, and in preventing communities being left “helpless”. Home Secretary Theresa May said that punishment methods need to move on from the ASBO, and be “rehabilitative and restorative” as opposed to criminalising; the coalition wants to spur a more “common sense” approach to policing.
In the past, ASBOs have been given out for actions ranging from the absolutely bizarre to the mind-bogglingly ridiculous. From a 60-year-old dressed in school uniforms, to flocks of sheep being used to intimidate, the ASBO has been used to quell some of the country’s most eccentric individuals.
The 1998 Crime and Disorder Act, which brought in Tony Blair’s “ASBO”, included a list of over twenty instances of anti-social behaviour, including drinking alcohol on the streets, begging, noise coming from alarms, malicious communication, and inappropriate use of fireworks.
Nobody’s denying that certain individuals, or groups, can cause a nuisance, upset and even make life a misery for others. But since their introduction, many have felt the ASBOs, in addition to landing almost four and a half thousand people in custody without trial, often directly breaches the freedoms of self-expression and identity. It is for Parliament, and Parliament alone, to determine what activity is criminal. Under the ASBO regime, a court determines that certain activities (which can be almost anything) is criminal. Criminal law should be the same for everybody, but ASBOs make it a criminal offence for one person to engage in certain activities but not for another person to engage in the same activity. The burden of proof, in imposing an ASBO (i.e. whether behaviour is anti-social) is the civil test of “balance of probabilities”, not the criminal test of “beyond all reasonable doubt”. Behaviour is “anti-social” if it causes “harassment, alarm or distress” to the victim. Worse still, “harassment, alarm or distress” has been said to mean whatever the victim thinks it means.
Human Rights lawyer Alex Gask wrote that the term “anti-social behaviour” covers and extraordinary large and ambiguous area, whilst the contents of ASBOs themselves are equally equivocal. Furthermore, the fair treatment of those accused, and the presumption of innocence are often overlooked. There are more profound social questions as to whether ASBOs are an appropriate way to deal with serious social problems, especially when they are applied to those aged 10 to 17.
And how effective are they anyway? Another “quick fix” solution, and a solution which, in itself, is at best good intentions gone seriously awry, and at worst a persistently botched job. May’s emphasis on community intervention, “people who are closer to the problem have to be driving the solution”, may seem optimistic, but it has to be better than the criminalisation of non-criminal behaviour.
