Time for last orders?

Jack Straw introduced anti-social behaviour orders as a quick
way for local authorities to deal with some people’s troublesome
behaviour. But councils have given them a mixed response. Anabel
Unity Sale examines the debate.

Are nuisance neighbours harassing your clients? Do joy riders
speed down your high street? Could an anti-social behaviour order
answer your prayers?

When anti-social behaviour orders (ASBOs) were introduced by
former home secretary Jack Straw in the Crime and Disorder Act
1998, they were the government’s latest idea for tackling the
anti-social behaviour that blights some neighbourhoods.

For the first time ever, councils, working with the police, can
apply to their local magistrates court to prohibit a named person
from engaging in a specified activity such as being in a particular
place. The orders last at least two years with no upper time
limit.

Although magistrates issue the orders while sitting as a civil
court, once the order is breached a criminal offence has been
committed and the person could face a prison sentence of up to five
years.

ASBOs have got off to a slow start. From 1 April 1999 until 31
March this year, 215 orders were awarded from a total of 223
applications. This contrasts sharply with the 5,000 orders the
Crime and Disorder Act 1998 estimated could be issued annually. In
fact, last October Jack Straw urged councils to use the orders more
after only around 120 had been granted.

Where ASBOs have been issued, about half have been against
juvenile offenders. Between 1 June 2000 and 31 March this year, 53
orders were made against individuals aged 10 to 17, and 55 against
over 18-year-olds, with three awarded against people of an unknown
age.

The Home Office does not collate the number of ASBOs each
council has but records the number of orders issued by police force
areas across England and Wales. Of the ASBOs awarded, 21 went to
councils in the area covered by the Metropolitan police service.
Councils covered by the West Midlands police were next with 18
orders, followed by councils in the Greater Manchester and Avon and
Somerset police force areas with 13 orders each.

Last April, Manchester council obtained one of the longest
serving ASBOs issued to date. Its 10-year order bans Billy Kelly,
15, from going into parts of south Manchester, and from generally
threatening and harassing people. By the time the order ends on 20
April 2011, Kelly will be 25 years old.

Isn’t the length of the order excessive? Manchester council
assistant director of housing Susan Triggs doesn’t think so. She
says while the council did not request how long the order should
last, they were satisfied with the magistrate’s decision. “The
judge, having looked at all the evidence, thought it was serious
enough to cover 10 years and we are happy with that,” said
Triggs.

It took three months and around £2,000 to gather evidence
on Kelly, whose family the council had already warned and then
evicted because of his behaviour.

She says the council uses the orders to protect vulnerable
people targeted by bullies: “Only in a small number of cases have
we had to use an ASBO but we will use them to protect vulnerable
people and the community. Once you understand how to use an order
and apply for them you realise they are not costly.”

Manchester is now expecting its tenth ASBO to be granted. Of the
nine orders granted so far, four had been breached resulting in
prison sentences of between four months and two years for the
offenders concerned.

Cardiff council spent between £8,000 and £10,000
during four months to obtain its first order against 19- year-old
Miles Flynn last July. Kathryn Edwards, Cardiff council district
housing manager, says they were prompted to apply for the order
after the second woman in two years asked to be moved because Flynn
was harassing her. He had also been excluded from the council’s
waiting list because of his anti-social behaviour.

She says: “We looked at the options available and decided to go
for it because we wanted to rid the community of the mayhem Flynn
creates. An ASBO appealed to us because we could ban him from the
community and this would remove the negative influence he held over
some of his friends.”

Despite Flynn already breaching the order, Edwards says the
process was worth going through. She says his case is now in the
hands of the police and the council will consider applying for more
orders as and when necessary.

So, if Manchester and Cardiff councils are happy with their
orders, why have so few authorities done the same? One explanation
is the cost in time and money of applying for an order. In July, a
written parliamentary answer from Home Office minister John Denham
revealed that the average cost of an order, based on a survey of 20
cases, was £5,480. But it doesn’t have to cost an arm and a
leg, according to Manchester Council. Triggs says one of its orders
only cost the £23.50 court charge.

ASBOs can be an effective way of legally stopping anti-social
behaviour, according to Bernadette Livesey, a human rights lawyer
with Walker Morris solicitors. But only if the council is prepared
to take further action if the order is broken.

She explains: “If a council thinks a bit of paper is going to
stop anti-social behaviour then they are wrong. If people are hell
bent on anti-social behaviour the piece of paper is worthless
unless a council backs it up by pursuing criminal charges if the
order is breached.”

Livesey also warns that even when councils are seeking an ASBO
against a young person, they should not ignore the needs of that
person if they are under 18. She says: “A council can get diverted
down the ASBO route, and it must make sure that it is not pursuing
an order against a child in need (under the Children Act 1989). If
the child is in need, the council must make sure it is fulfilling
its statutory duties and assessing the child’s needs.”

Some councils set up dedicated groups to address nuisance
behaviour instead of automatically applying for an order, says
Local Government Association community and safety officer Diana
Sampson.

She explains: “By targeting and working with identified
individuals and groups of people, anti-social behaviour groups can
work with them to improve their behaviour, which avoids the
necessity of an ASBO.”

This approach works, Sampson says. Because it reduces
anti-social behaviour, councils do not have to go to court for an
ASBO and do not need to devote their stretched resources to
monitoring an order and then taking action if it is breached.

Sampson recommends councils look at the individual’s
circumstances in an attempt to determine the underlying causes of
their anti-social behaviour to see if it can be stopped.

She adds: “The underlying causes of someone’s anti-social
behaviour should be addressed but there are some individuals that
cannot be helped and for the greater good, ASBOs will have to be
taken out.”

Barnardo’s policy officer Pam Hibbert wants councils and
relevant agencies to offer support and intervention to an
individual displaying anti-social behaviour before crisis point is
reached.

Doing this would contain the individual in their own community
and would avoid passing the problem on. She says: “People behave in
a way that is classed as anti-social because of something in their
lives. It is trying to get the community to take ownership of that
instead of moving the problem, and the person, on.”

She says that when orders are granted they should come with a
support package to help the individual address the behaviour that
caused the order to be granted in the first place. She also
suggests ASBOs be better co-ordinated with the youth justice
system’s work to improve an individual’s behaviour.

Hibbert is also concerned that once an ASBO is breached it leads
to a criminal conviction. “This seems to us to be unjust; either
make them both part of the civil regime or both part of the
criminal justice system,” she says.

The Howard League for Penal Reform has campaigned against the
introduction of the orders since 1998. Charlotte Day, a policy
officer for the league, says the fact that the number of ASBOs
applied for is far lower than initially predicted “means they are
unnecessary”.

She argues existing legislation in the forms of the Housing Act
1996 and the Protection from Harassment Act 1996 give councils
enough ammunition to deal with anti-social behaviour.

Day says: “The definition of anti-social behaviour in the orders
is far too broad and includes a whole range of non-criminal
behaviour like repeatedly playing loud music. This could be more
effectively dealt with under the provision for noise control.”

She also disagrees that an individual should face a criminal
sanction when they breach an order. She points out that the
standard of proof required to obtain an order is the civil
standard, the balance of probabilities, and not the higher criminal
standard of proof of beyond reasonable doubt. She says: “Therefore
ASBOs effectively criminalise a person’s activities by
stealth.”

Day wants local authorities to “press for more constructive ways
of dealing with local people rather than this punitive exclusionary
measure”.

The government’s own figures reveal that councils have been slow
to embrace ASBOs. Those that have been granted the orders say they
applied for them to protect their vulnerable residents from
harassment and bullying. But, as the sector argues, until support
packages for the offenders are routinely introduced, orders will
continue to be broken and vulnerable people will remain
vulnerable.