Anti-Social Behaviour Orders

(by Neil Addison and Timothy Lawson Cruttenden)

(This is a copy of an article first published in the magazine 'The Criminal Lawyer' April 1999 copyright Neil Addison and Timothy Lawson-Cruttenden. It can be downloaded and reprinted for personal use but if reproduced in whole or in part the source must be acknowledged )

'An urban war zone, an occupied territory. Loud talk, loud music, vulgarity, profanity, brutality, fist fights, and the sounds of gun-fire echoing in the streets. Murder attempted murder drive-by shootings, assault and battery, vandalism, arson and theft are commonplace. The community has become a staging area for gang related violence and a dumping ground for the weapons and instrumentalities of crime once the deed is done. Area residents have had their garages used as urinals, their homes commandeered as escape routes, their walls fences, garage doors, sidewalks and even their vehicles turned into a sullen canvas of gang graffiti. The people of this community are prisoners in their own homes'.

These are not parts of a script for a 'Mad-Max' type movie, but quotations from the beginning of the judgement of the Supreme Court of California in the case of The People ex rel Gallo v Acuna [1997] 14 Cal 4th 109. The community in question is the Rocksprings area of San Jose which had become the 'territory' of a gang known as 'Vario Sureno Locos' whose members were frequently convicted of minor criminal offences but whose behaviour as a group was so intimidating that they were able in effect to obtain of immunity from the law by terrorising Rocksprings inhabitants into acquiescence. It was a situation where the ordinary procedures of criminal law enforcement and prosecution, were becoming inadequate.

The San Jose City Council dealt with the situation by obtaining Public Nuisance Injunctions which prevented members of the gang from being together in the Rocksprings area, prevented them drinking or taking drugs, shouting at swearing at, threatening etc anyone in the area. This solution worked because in California breach of an Injunction is a criminal offence and the San Jose police and District Attorney undertook to enforce the public nuisance Injunction by arresting and prosecuting any breach. This approach was eventually upheld by the California Supreme Court and is believed to have influenced s1 of the Crime and Disorder Act 1998 which comes into force on 1st April 1999

Prior to the 1997 General Election the labour party had laid a great deal of emphasis on the need to find new and more effective ways of dealing with persistent anti-social behaviour which was causing serious problems particularly in inner-city council estates. One problem which had to be tackled was the difficulty in obtaining evidence from vulnerable witnesses particularly where the offenders were members of a gang or a criminal family. The second problem arose from the fact that the criminal law in general is organised to deal with specific incidents and is often less effective in a situation where the totality of what is happening is more than the sum of its parts. If someone swears at their neighbour for example then a charge under s5 of the Public Order Act and a fine is an adequate remedy. However where someone swears at their neighbour every single day then even though each individual incident is still technically a s5 clearly it is the persistence of the behaviour which needs to be tackled not the individual incidents.

Whilst several local authorities have attempted to deal with these problems by the use of Injunctions there success has been limited because of the fact that the police have no power to arrest anyone who breaches an Injunction. Whilst a power of arrest can be attached to some Injunctions under the Housing Act 1996 there are a number of legal restrictions relating to when and against whom they can be granted. In addition injunctions cannot be made against juveniles because civil courts can only punish contempt of court by sending the offender to prison and juveniles cannot be sent to prison Wookey v Wookey [1991] Fam 121.

Section 1 of the Crime and Disorder Act 1998 attempts to deal with all of these problems by creating a new type of legal procedure known as 'anti-social behaviour order' (known as ASBO's). Section 1 is certainly one of the most innovative developments in the criminal law for many years. Though ASBO's are similar to injunctions there are important differences. They are made by the criminal magistrates courts not the civil county courts, they can apply to juveniles as well as to adults, breach of an ASBO is a criminal offence not a contempt of court and police have the power to arrest for breach.

For criminal defence lawyers the creation of ASBO's will provide a new and particularly difficult area of work. Once an ASBO is made it will be relatively easy for the police and CPS to prove any breach so the main defence emphasis will have to be on avoiding any order being made or watering it down. One point that will be important in this respect is that ASBO's are creatures of statute and therefore the legal principles, precedents and rules which apply to Injunctions are not relevant to them

An application for an ASBO can only be made by a 'relevant authority' namely s1(1) 'the council for the local government area or any chief officer of police any part of whose police area lies within that area'. In s1(12) 'local government area' is defined as the area of a London borough or a district council in England or of county or county borough councils in Wales. This means that English county councils and the forthcoming London Mayor and London Metropolitan Authority are not relevant authorities for the purpose of the act

Under s18(1) of the Act and s101(1) Police Act 1996 'chief officer of police' means any chief constable and the Commissioners for the Metropolitan or City of London Police. Under s1(2) of the 1998 Act a relevant authority cannot apply for an order without consulting the other relevant authority which could prove to be a significant factor preventing overuse of such orders. Defendants who are the potential subjects of an order could ask the applicant authority to produce evidence that it has consulted with the other authority in accordance with s1(2). It is arguable that it would not be sufficient for a council to merely consult with their local police commander they will have to show that they have consulted with the chief constable or commissioner personally. If that has not been done then potentially any order which is made would not be lawful and under Article 5(1)(b) of the European Convention of Human Rights a person may only be imprisoned for breach of a 'lawful' court order. The CPS have no involvement in the obtaining of an ASBO they will only be involved in prosecuting any breach.

Section 1(1) provides that in order to obtain an ASBO the applicant authority must show,

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him;

The wording of s1(1)(a) would suggest that one single incident of harassment against one single individual would be sufficient to justify an order, however, s1(1)(b) makes it clear that much more than one single incident or victim is required in order to show that an order is 'necessary' to protect 'persons' ie not just one person from further anti-social acts. If there are only a few incidents or if there is only one victim then it cannot be said that an order is 'necessary' under s1(1)(b). When considering any alleged harassing act the court must disregard any act which the defendant proves was 'reasonable in the circumstances' s1(5)

One of the political arguments that was relied upon in arguing for the creation of ASBO's was the idea that they could be obtained by evidence proved 'on the balance of probabilities' rather than on the civil standard of 'beyond reasonable doubt' but this may well not be the case.

In R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 the House of Lords accepted that the civil standard of proof was a flexible concept and the courts would require evidence 'appropriate to what is at stake' similarly in Percy v DPP [1995] 1 WLR 1382 the Divisional Court held that merely because an application for a bind over was begun by complaint did not prevent the standard of proof being to the criminal standard. Defence lawyers therefore should argue strenuously for the criminal standard of proof to be applied in any application for an ASBO.

However even if the criminal standard is applied an application for an ASBO will still be a civil rather than a criminal case and therefore the civil rules of evidence will apply. Hearsay evidence for example could be admissible as would evidence of interviews or investigations in breach of PACE, evidence of what was said by co-accused or co-suspects in an investigation and evidence of the number of reports or complaints made to the police or council.

Whilst it is clear from s1(1)(a) that an order cannot be made unless the defendant has acted in an anti-social way after s1 comes into force it is less clear whether a court can look at anti-social or criminal acts committed prior to s1 coming into force in order to decide whether the criteria in s1(1)(b) are made out. Arguably it cannot and defence lawyers can be expected to object to any attempt to bring up in evidence any incident or conviction prior to the 1st April. In addition since any application for an order will be made by complaint s1(3) it will be subject to Magistrates Courts Act 1980 s127 which provides that no complaint can be laid more than six months after the incidents complained of

The provision in the Crime and Disorder Act 1998 s1(1)(a) that the person has acted 'in a manner that caused or was likely to cause harassment, alarm or distress' was inserted in the Act in order to allow a court to hear evidence from witnesses other that the actual victims of the alleged harassment. For example, if a gang threw a glass bottle in the general direction of a pensioner who was going down the street so causing the bottle to shatter at her feet it would be more likely than not that the pensioner would be afraid of giving evidence in court. However if the incident was witnessed by another person who was willing to give evidence, such as a police officer, a council employee etc then that person could give evidence and the court could reasonably conclude from that evidence that the behaviour was 'likely' to cause harassment, alarm or distress.

It is however noticeable that even if a court is satisfied that the criteria in s1(1) are made out it is not obliged to make an order. Section 1(4) states that

(4) If, on such an application, it is proved that the conditions mentioned in subsection (1) above are fulfilled, the magistrates' court may make an order under this section (an "anti-social behaviour order") which prohibits the defendant from doing anything described in the order.

The word 'may' in this subsection leaves the court with a complete discretion. It can find all the allegations proved and yet still decide that an ASBO is not appropriate

This discretion could be particularly important in view of the provisions of sections subsections (7) to (9) which provide that once an order is made it exists for a minimum of 2 years and cannot be changed save with the agreement of the applicant. This rather draconian fettering of judicial discretion once an order is made may perhaps have the effect of making courts less inclined to make orders in the first place.

Under s1(10) breach of any of the provisions of an anti-social behaviour order is an either way offence punishable on Indictment with up to 5 years imprisonment. Police therefore have the power to arrest without warrant anyone they reasonably suspect of breaching an order relying on their general arrest powers under s24(6) PACE. Since breach of an order is a criminal offence rather than a contempt of court ASBO's can be made against juveniles over 10 years of age with any breach being dealt with by prosecution in the Youth Court.

The Home Office guidelines on ASBO's are available on the Internet at www.homeoffice.gov.uk/cdact/index.htm and lawyers will find them worth refering to in preparing the defence to an application for an ASBO. For example in relation to juveniles the guidelines state

'It is expected that the orders will normally be used against adults, or those acting in association with adults'.

and this provision could be helpful in arguing that an order should not be made against a juvenile on his own. The guidelines also warn that

'The orders should not be used against someone just because he or she is simply different, or is engaging in activities different from their neighbours'