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Crime Solicitors

Youth Offenders (29 November 2010)

Date: 29/11/2010
Duncan Lewis, Crime Solicitors, Youth Offenders

by Lucy Philps-Tate

The Home Secretary, Teresa May recently said “We need to make anti-social behaviour what it once was, unusual, abnormal and something to stand up to, instead of what it has become frequent, normal and tolerated…it is time to move beyond the ASBO.”

Is she correct or do ASBO’s still have there place in stopping anti-social behaviour?

Anti-social behaviour orders were introduced in April 1999 under the Crime and Disorder Act 1998 to deal with persistent, minor offenders. They can be issued to anyone over the age of 10, who have behaved in a manner which may have caused people to feel threatened, distressed or harassed. Examples of such behaviour are graffiti, drunken behaviour, excessive noise, verbal abuse and criminal damage. They can be used to stop the offender going to certain places, doing certain acts or leaving a property between certain hours. They are in force for a minimum of two years, and are mostly associated with youths under the age of 18. Prior to the implementation of ASBO’s, the justice system that dealt with youths was very much separated from that which dealt with adults.

Post Crime and Disorder Act 1998; youths are now often named and shamed, which directly contradicts the previous emphasis on protecting youths from publicity. This can often lead to individuals and their families being stigmatised, thereby increasing the likelihood of the bad behaviour becoming a self fulfilling prophecy as the children continue to misbehave, and ‘live up to the label’ society has placed upon them, pushing them closer to peers with similar issues, and leading to further social exclusion. The youths are being labelled by society as criminals when in fact the ASBO is not a criminal sanction: this is a common misconception. Society is therefore judging young people and putting them in a box with criminals, when they are at a very impressionable age and society should really be supporting them to find a way out of their misbehaviour rather than labelling them in a negative fashion.

Are the media partly to blame for the reputation the ASBO has? It is often portrayed as a ‘badge of honour’; this understandably causes the public to question its effectiveness, especially if they have no direct contact with those offenders subject to an ASBO to see the actual reality. The public are right to worry if the ASBO is seen as a badge of honour, as should that be the case, the ASBO is not the deterrent it is intended to be.

Maybe we need to go right back to the beginning; what was its intended purpose? Was it a punishment as is commonly thought? or instead a deterrent to try and stop the anti-social behaviour in the first place? The ASBO is a civil remedy, which if breached has a criminal sanction. This means the local authority, police and now registered social landlords, must only prove the offending behaviour which has lead to the ASBO application has been committed on the ‘balance of probabilities’: the much lower civil standard of proof. There are also more lenient rules on the type of evidence which can be relied upon when seeking an order. Thus resulting in potential ASBO’s imposed without sufficient safeguards in place to ensure that the alleged behaviour has occurred.

In R v Crown Court at Manchester Ex parte McCann [2003] UKHL 39, the House of Lords ruled that the standard of proof to be applied should only be the higher, criminal standard of ‘beyond reasonable doubt’ when the courts were considering previous acts of anti-social behaviour. When considering the necessity of the order itself, an ‘exercise of judgement or evaluation’ was involved, rather than a standard of proof per se.

Teresa May’s statement is very sweeping. Home Office figures show that out of the 16,895 ASBO’s issued between 2000 and 2008, 55% were breached once; and 40% more than once. In the youth bracket of children aged between 10 and 17 this rises to 65%. This could appear to prove Teresa May’s point; however looked at differently, 45% of ASBO’s and 35% in the youth bracket in the same period were not breached at all. This is surely evidence that they do reach their objective, and therefore continue to have a function.

Perhaps the effectiveness of the ASBO, is not down to what the order represents, but rather the tools, or lack of, in place to help it work. Therefore maybe instead of moving beyond the ASBO as Teresa May suggests, it should be strengthened by bringing parents and the wider community into the enforcement and policing of the order so that all parties can see that the process is one that is fair, accountable and that the behaviour it is there to deter is not normal, tolerated or accepted.

In conclusion, it is easy to concentrate on the negatives, be that the common “all youths are antisocial and don’t care” or that those who are given an ASBO constantly breach it. Why not look at the positives and acknowledge those youths who give something back to their community and turn their lives around and inspire those around to copy that behaviour rather than the antisocial instead.

Although many people criticise the ASBO, no other viable options have been put forward. Indeed in a perfect world all children would have two parents and a happy home life, attend school and strive to achieve the best they can, however this is not the case. Antisocial behaviour spans all classes, communities and economic boundaries. It could be argued that of the 35% youths who do not breach their ASBO, even if only some then turn their behaviour around, the ASBO has succeeded. No one form of deterrent will work for everybody. The rate of re-offending of adults and youths after they are released from prison was, in 2008 4 in 10. So maybe the answer is to continue to use the ASBO but couple it with other supporting initiatives such as parenting classes, youth work and providing youths with skills they can use in life.


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