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About ASBOs

Anti-Social Behaviour Orders (ASBOs) are civil orders made against someone who has engaged in anti-social behaviour in the UK or the Republic of Ireland.

ASBOs were introduced by the Labour party under Tony Blair in 1998. The intent was give the state a way to prevent and control low-level behaviour that would not normally warrant a criminal prosecution but brings fear and misery to those living amonst it.

ASBOs are designed to limit and correct the recipient's behavior. For example, by forbidding a return to a certain area or shop, or by restricting public behavior such as swearing or drinking.

As the ASBO is a civil order, the defendant has no right to evidence that might disprove the assertions of the plaintiff, though violating an ASBO can incur up to five years imprisonment. This means getting an ASBO does not give you a criminal record, but breaking the ASBO could.

ASBOs are not without contraversy. Many critics suggest that they may be "desirable" to certain people as a "badge", to be respected amongst peers.

In the United Kingdom, an ASBO may be issued in response to "conduct which caused or was likely to cause harm, harassment, alarm or distress, to one or more persons not of the same household as him or herself and where an ASBO is seen as necessary to protect relevant persons from further anti-social acts by the Defendant."[5] In England and Wales they are issued by Magistrates' Courts, and in Scotland by the Sheriff Courts.

The British government introduced ASBOs by the Crime and Disorder Act 1998. In the UK, a CRASBO is a "criminally related" ASBO. One local authority has published photos of those given ASBOs on an Internet site but this is not standard practice. Anti-social behaviour includes a range of problems including:

  • noise pollution - playing music persistently too loud or persitently making other loud or intrusive noise
  • drunkenness
  • abandoned cars, burned-out cars, joyriding
  • stealing/mugging/shoplifting
  • begging
  • vandalism, grafitti, criminal damage to property
  • loitering
  • dropping litter/fly tipping/dog fouling
  • drug dealing or drug taking
  • intimidation and bullying
  • spitting

History of ASBOs

ASBOs were first introduced in England, Scotland and Wales by the Crime and Disorder Act 1998. Later legislation strengthened its application: in England and Wales this has largely been via the Anti-social Behaviour Act 2003, in Northern Ireland through an Order-in-Council and in Scotland with the Antisocial Behaviour etc. (Scotland) Act 2004.[8] Scotland, however, has an existing tribunal charged with dealing with children and young persons who offend, the Children's Hearings System.

In a press release of 28 October 2004, Tony Blair and David Blunkett announced further measures to extend the use and definition of ASBOs. The remit would include:

  • Extension of the Witness Protection Programme in anti-social behaviour cases.
  • More courts dealing with cases.
  • More offences including dog-fouling, litter, graffiti, and night-time noise liable for Fixed Penalty Notices.
  • Giving parish councils the power to issue fixed penalty notices for infringements.

The press release concluded by remarking: "In the past year around 100,000 cases of anti social behaviour have been dealt with. 2,633 ASBOs and 418 dispersal orders have been issued in the same period."

On 25 October 2005, Transport for London announced its intent to apply for a new law giving them the authority to issue orders against repeat fare dodgers, and increased fines. The first ever ASBO was given to offender Kat Richards for repeated drunk and disorderly behaviour. As of 31 March 2004, 2455 ASBOs had been issued in England and Wales. On 30 March 2006, the Home Office announced that 7,356 anti-social behaviour orders had been given out since 1999 in England and Wales.

Why ASBOs are issued

Applications for ASBOs are heard by magistrates sitting in their civil capacity. Although the proceedings are civil, the court must apply a heightened civil standard of proof. This standard is virtually indistinguishable from the criminal standard.

The applicant must satisfy the court "so that it is sure" that the defendant has acted in an anti-social manner. The test for the court to be "satisfied so that it is sure" is the same direction that a judge gives to a jury in a criminal case heard in the Crown Court. This is also known as satisfying the court "beyond reasonable doubt": R v Kritz [1950] 1 KB 82, approved by the Privy Council in Walters v R [1969] 2 AC 26 at 30.

As a matter of law, the burden of proof remains on the applicant and the standard is, effectively, the criminal standard. A court may not order an anti-social behaviour order unless it is satisfied so that it is sure that the defendant has committed one or more of the anti-social acts alleged.

Pursuant to section 1(1) Civil Evidence Act 1995, an applicant (and a defendant) has the right to rely on witness statements without calling the makers of those statements - known as hearsay. If a party proposes to rely upon a hearsay statement, then the other party is entitled to ask the court for permission to call that witness for cross examination: section 3 Civil Evidence Act 1995 and Rule 4 Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999.

If the court refuses to grant such an application, then the defendant will be unable to challenge the makers of the hearsay statements. Nevertheless, it is open for them to submit that the court should place little or no weight upon material that has not been tested by way of cross examination.

Section 4(1) Civil Evidence Act 1995 states that:

...in estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.[13]

The High Court has emphasised that the use of the words "if any" shows that some hearsay evidence may be given no weight at all.[14] For an ASBO to be made, the applicant must prove beyond all reasonable doubt that the respondent has behaved in an anti-social manner. The applicant can rely on hearsay evidence. However, the Court of Appeal has stated that it does not expect a court to find that the criminal standard has been reached by relying solely on hearsay evidence. The Civil Evidence Act 1995 itself makes clear that courts should consider what weight, if any at all, attaches to hearsay material. In Cleary, the Court of Appeal again restated that courts should consider attaching no weight at all to such material, in accordance with the words of the statute: Cleary v Highbury Corner Magistrates & (1) Commissioner of Police of the Metropolis and others (2007) 1 WLR 1272; [2006] EWHC 1869.[citation needed]

It is for the court to decide what weight to give the hearsay evidence. The Court of Appeal has stated that the high standard of proof is difficult to meet if the entirety of the case, or the majority of it, is based upon hearsay evidence.[15] The proper approach will be for a court to consider to what extent the hearsay evidence is, amongst other things, supported by other evidence, the cogency and similarity of supporting instances of hearsay evidence and the cogency and reliability of contradictory evidence supplied by a defendant.

Where, for example, ten anonymous witnesses who are unrelated to each other each provide a witness statement as to the defendant's anti-social behaviour where each statement refers independently to the same particular events and where this is supported by a witness statement from a non-anonymous witness, such as a housing officer, who confirms that residents have made complaints about a particular person over a period of time then the court may be justified in according the statements a fair degree of weight.