Asbo-lutely mad
Trevor Grove on the risks of enforcing Asbos with jail sentences
One way to imprison a suspected terrorist for 90 days or even longer, without any bother from Parliament, would be to give him an Anti-Social Behaviour Order. The Asbo could be drawn up to include a number of hard-to-follow rules such as never to associate with more than one other person in public or use the internet. Once a breach was proved in court, where it would be regarded as a serious criminal offence, the offender could be given a jail sentence of up to five years. Gotcha! Such is the concealed yet far-reaching power of the Asbo that this is a not entirely frivolous hypothesis.
Asbos were introduced seven years ago under the Crime and Disorder Act 1998, with the desirable aim of protecting communities ‘from behaviour that has caused or is likely to cause harassment, alarm or distress to one or more persons not of the same household as the perpetrator’. Typically they are imposed on named individuals and prohibit specified acts such as entering a particular area, riding a scooter or drinking alcohol in public. They are usually applied for by the police or local authority as a means of dealing with bad boys and un-neighbourly neighbours when there is not enough hard evidence to charge them with actual crimes. An Asbo can also be made on conviction, ancillary to the sentence. Either way, these orders are intended not as a punishment for past trouble-making but as a way of preventing it in future and protecting the public from further nuisance. This is obviously a sensible idea.
The cleverness of the Asbo is that it is a civil order, so that when an application is made in the magistrates’ court, it is the civil rules of evidence that apply. This means that as well as any direct testimony the police or local authority put forward, hearsay evidence is also admissible. Usually this takes the form of a bundle of statements from local residents who, for one reason or another but most probably fear of a brick through the window or worse, prefer not to testify in person.
Which is all very well and understandable. But for the district judges and JPs who decide whether to grant the applications, this is where matters get a little tricky. For while they hear the evidence under civil rules, it is the criminal standard of proof they must apply to it. The Asbo is a legal hybrid. Thus, while key parts of the evidence might consist of complaints from neighbours, untested in court to exclude malicious gossip or mere tittle-tattle, the Bench must nonetheless be sure beyond reasonable doubt that the allegations are true before it can issue the Asbo.
Supposing it does — as is usually the case — the next step can also be a bit of a challenge. The Bench must satisfy itself that the terms of the proposed order are necessary to protect law-abiding folk from future antisocial acts. These can be straightforward, such as not carrying a can of spray paint or growing a leylandii hedge too high. But they may be pretty complicated, involving detailed maps of no-go areas that might, for example, allow a 12-year-old Asboee only the merest corridor through which to leave his own home or go to school. And they can also appear completely daft, as described in a handy new guide to Asboland called The Little Book of Asbos (Crombie Jardine, £2.99). Author Ed West cites an instance where a 19-year-old from Oldham has been banned from having the name of his gang shaved onto his head, another where a Londoner has been prohibited from impersonating a milkman, while a Bath woman with a history of suicide attempts has been given a two-year Asbo to stop her going anywhere near a river, canal or multistorey car park.
How can magistrates be confident that such bizarre strictures are needed for the protection of the public? There are no national guidelines to help, since by definition Asbos are community-based. This is good in that it means each order is locally inspired and individually tailored. But such a DIY approach to lawmaking does lead to startling inconsistencies. How to explain, for example, that Manchester dishes out five times more Asbos than Liverpool and that London’s top scorer, Camden, out-Asboes the neighbouring borough of Islington by a factor of eight? If the same sort of discrepancies applied, say, to the way drunk drivers were dealt with, the Lord Chancellor would get his tights in a terrible twist.
Home Office figures show that between April 1999 and March this year, 5,557 Asbo orders were issued. Nearly 900 of them, 16 per cent of the total, were in the first three months of this year alone. However, as the use of Asbos has climbed, so has the number breached. The latest data are almost two years old, but as Home Office minister Hazel Blears admitted to the Commons in March, by the end of 2003 the breach rate had risen to 42 per cent. Maybe it is not surprising that such a high proportion of orders is being flouted, bearing in mind that almost half of them are issued to juveniles as young as ten, the conditions are sometimes onerous and they can last for up to a decade or more.
But this is where the Asbo really shows its teeth. For although it is a civil order when it is imposed, the breach of an Asbo is treated not merely as a criminal offence but a serious one. The national sentencing guidelines for magistrates make this quite explicit: the ‘entry point’ for the crime of breaching an Asbo is custody, with a maximum of five years for adults, two years for those under 18. The courts are not bound by this guideline, but they need to have sound reasons for not following it.
The consequence is that, according to the latest available figures, 55 per cent of adults and 46 per cent of youths who breached their Asbos received immediate custody. This suggests that at least 1,000 people have so far been sent to our overcrowded jails for disobeying one or more of the terms of their orders. Clearly, Asbos need to be backed by tough sanctions. But what is troubling is that many of these transgressors may be behind bars for acts which are not in themselves imprisonable. The lad who wears a hoodie in the street or the prostitute found with a condom in her handbag, contrary to the terms of their Asbos, can actually be locked up.
So long as Asbos are largely confined to teenage hoodlums and social misfits, perhaps the public won’t find this too disturbing. But a recently launched campaign called Asboconcern has won the backing of civil liberties activists as well as the probation service’s own union, Napo. And it is not at all far-fetched to foresee a day when an Asboed fox-hunter could be jailed for getting on a horse, or an illicit smoker for having a cigarette pack in his pocket in a pub, contrary to the requirements of his Asbo. If Tony Blair’s ‘Respect’ agenda is seen as the signal for still more Asbo applications, which seems likely, the courts will have an even heavier responsibility to process them with sensitivity and care.
A model for how to act was provided by the Court of Appeal’s recent judgment in the case of Dean Boness. In addition to a prison sentence, the 18-year-old first-time burglar had been given an Asbo to run for five years from the date of his release. It contained 14 prohibitions. Most of them were so vaguely defined that Boness could have faced being sent back to jail for having a credit card, carrying a newspaper or going to a football match. The three Appeal Court judges, quite rightly, quashed the entire Asbo.
Magistrates and district judges should study their judgment and apply the same good sense. For it is largely up to them to ensure that what was designed as a simple, quick-acting tool to reduce low-level misbehaviour does not become what it is quite capable of becoming: an instrument of rough justice and populist oppression.
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