ASBOs are civil orders that exist to protect the public from behaviour that causes or is likely to cause harassment, alarm or distress. An order contains conditions prohibiting the offender from specific anti-social acts or from entering defined areas, and is effective for a minimum of two years. The orders are not criminal penalties and are not intended to punish the offender.
In England and Wales, applications for ASBOs are made to the magistrates' court by 'relevant authorities' which include local authorities, chief officers of police, registered social landlords, housing action trusts or any other person or body specified by the order of the Secretary of State. (As previously mentioned, it is intended that the Environment Agency and Transport for London be specified for this purpose).
In Northern Ireland, applications for ASBOs are also made to the magistrates' court by 'relevant authorities'. However, the 'relevant authorities' in this case are the Northern Ireland Housing Executive, the Police Service of Northern Ireland and local councils. In addition, the Secretary of State for Northern Ireland can also add additional 'relevant authorities'.
A similar order can be applied for during related proceedings in the county court, and can be requested on conviction of certain offences in the criminal courts. It remains a civil order irrespective of the issuing court.
Under the terms of the Crime and Disorder Act 1998 and the Anti-Social Behaviour (Northern Ireland) Order 2004, the agency applying for the order must show that:
This is sometimes referred to as the 'two stage test'.
Section 1(1) of the Act or Article 3 of the Northern Ireland Order defines acting in an 'anti-social manner' as 'a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household.' Therefore, any behaviour that causes this and needs addressing, to protect people from further anti-social behaviour, can potentially be the subject of an ASBO. The definition is intentionally wide-ranging to allow for the orders to be used in a variety of circumstances.
However, the main types of anti-social behaviour that ASBOs generally tackle include:
ASBOs can be made in the magistrates', county, Crown and youth court in various circumstances, including:
The effect or likely effect of the alleged behaviour on other people determines whether the behaviour is anti-social for the purposes of an ASBO. The agency applying for the order does not have to prove an intention on the part of the defendant to cause harassment, alarm or distress.
An order can be made against anyone aged 10 years or more who has acted in an anti-social manner, and where an order is needed to protect people and the wider community from further anti-social acts. These orders can be used to combat anti-social behaviour in a wide range of situations and settings. Where groups of people are engaged in anti-social behaviour, a case needs to be made against each individual against whom an order is sought.
In England and Wales, agencies able to apply for orders are defined as relevant authorities in the legislation (section 1(1A) of the Crime and Disorder Act 1998). These include:
The following agencies may also apply for ASBOs under the Police Reform Act 2002:
The BTP, HATs, and RSLs are required to consult both the local authority and local police force when applying for an order, but do not need to get their agreement. However, applications from the BTP, RSLs or HATs must concern anti-social behaviour related to the premises for which they are responsible, by persons who are on or in the vicinity of such premises or likely to be either on or in the vicinity of such premises.
Under new powers introduced by the Serious Organised Crime and Police Act 2005, the range of "relevant authorities" (who have the power to apply for ASBOs) is about to be extended to include the Environment Agency, who will use them to tackle environmental anti-social behaviour, and Transport for London, who will use ASBOs to protect their staff and passengers.
In Northern Ireland, agencies able to apply for orders are defined as 'relevant authorities' in Articles 2 and 3 of the Anti-Social Behaviour (Northern Ireland) Order 2004. These are:
The terms of the order are conditions which prohibit the offender from specific anti-social acts or from entering defined geographical areas. Careful thought needs to be given to their formulation so they cannot be easily circumvented, or misunderstood by the perpetrator. The terms of the order cannot force the recipient to engage in an act or do something, and can only require the recipient to avoid or refrain from doing something. Only prohibitions can be imposed.
Although it is for the court to decide what prohibitions are to be imposed by the order, the applicant agency should propose conditions to the court.
The prohibitions may also:
The minimum duration of an order is two years, which was set in order to give respite to communities from anti-social behaviour. There is no maximum period and an order may be made for an indefinite period. It is for the court to decide the duration of an order, but the applicant agency should propose a time period as part of its application.
In England and Wales, interim orders are available under section 1D of the Crime and Disorder Act 1998 (as amended by section 65 of the Police Reform Act 2002 and the Serious Organised Crime and Police (SOCPA) Act 2005) in both the magistrates' court and the county court. In Northern Ireland, these are available under Article 4 of the Anti-Social behaviour (Northern Ireland) Order 2004 and Article 4 of the Criminal Justice (Northern Ireland) Order 2005. This is an order made at an initial court hearing held in advance of the full hearing. This temporary order can impose the same prohibitions and has the same penalties for breach as a full order.
The interim order can be made without notice of proceedings being given to the defendant. The benefit of interim orders is that they enable the courts to order an immediate stop to anti-social behaviour and thereby to protect the public more quickly. Interim orders reduce the scope for witness intimidation and remove any incentive for delaying the proceedings on the part of the perpetrator.
Breach of an order is a criminal offence; criminal procedures and penalties apply. The standard of proof required is the criminal standard and therefore, guilt must be established beyond reasonable doubt. Breach proceedings are heard in the magistrates' court (or the youth court for young people) and may be committed to the Crown Court. Such proceedings are the same irrespective of whether the order is a full, interim or on conviction.
Sentencing will be proportionate and reflect the impact of the anti-social behaviour. It should relate to all the relevant circumstances, such as the number of breaches and how the breach relates to the original finding of anti-social behaviour.
For adults: The maximum penalty for breach of an order is five years' imprisonment and/or an unlimited fine. A conditional discharge is not available for breach of an ASBO.
For young people: The full range of disposals of the Youth Court is available, and custody should only be considered as a last resort, usually in cases of serious and persistent breach. It should also be noted that where appropriate, breach may be dealt with by way of a final warning. Where custody is deemed by the court to be necessary, the maximum sentence for breach by 12 to 17 year olds is a detention and training order (DTO) in England and Wales, or a Juvenile Justice Centre order in Northern Ireland, which has a maximum term of 24 months – half of which will be custodial and the other half of which is in the community. A 10-11 year old can be given a community order for breach of an ASBO.