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Charlotte McMurchie, partner Dickinson Dees
Antisocial behaviour orders (ASBOs) are headline news and the media often reports - or misreports - on the effectiveness of ASBOs in protecting and preserving our communities. Indeed, ASBOs have become integral to the Government's policy on law and order.
Legislation to address antisocial behaviour first appeared in the late 1990s with the Protection from Harassment Act 1997 and the Crime and Disorder Act 1998. This was followed by the Police Reform Act 2002, the Anti Social Behaviour Act 2003, and the Serious Organised Crime and Police Act 2005.
The legislation was aimed primarily at curbing verbal and physical misdemeanors by juveniles aged between 10 and 17-years-old. The Crime and Disorder Act 1998 defines antisocial behaviour as behaviour which causes or is likely to cause harassment, alarm or distress to one or more people. This behaviour can take several forms and includes graffiti and vandalism, abusive and intimidating language, excessive noise, drunken behaviour and dealing drugs.
Although remedies against antisocial behaviour are obtainable in both magistrates' and county courts, civil rules apply. There is also a criminal-related ASBO (CRASBO), ordered by the court at the end of a criminal trial.
An ASBO can only be applied for by local authorities, police authorities, British transport police, housing associations and housing action trusts. ASBOs cannot be applied for by individuals.
The authority applying for the ASBO needs to be able to prove both that the proposed perpetrator has caused, or is likely to cause, harassment, alarm or distress, and that those actions require an order to protect other people.
The ASBO contains prohibitions - for example restricting movement or freedom of speech - and is in place for a minimum of two years. In the case of juveniles, however, proportionality is taken into account by the court - a two-year term for a 10-year-old is a substantial length of time. Some local authorities take a very hard line and others use recourse to the courts as a last resort.
Allegations in the press abound that ASBOs are indiscriminately applied for in respect of seemingly trivial complaints. There is a common misconception that the purpose of an ASBO is to address criminality per se. A further misconception is that applications for ASBOs can be made on a whim and on flimsy evidence which is not true.
Magistrates, court clerks and district judges sitting in the county court require training in matters of law and evidence. The practitioner puts together a case that shows the alleged behaviour has caused or is capable of causing harassment, alarm or distress and that the only solution is to curtail the individual's freedoms. Although this is a civil remedy, the evidential burden for the applicant authority is that the case must be made out beyond all reasonable doubt - the criminal standard of proof is required.
The press has highlighted the appropriateness of granting an ASBO in respect of individuals with mental health issues. Clearly investigations need to be undertaken as to an individual's mental health issues, but the needs of the community also have to be taken into consideration.
It is our duty as practitioners to guide the court and ensure that all relevant issues connected with an application for an ASBO are addressed and that the court is fully conversant with the relevant law, authorities and evidence produced in support or in defence of the application.
Some will view the curtailment of individual liberties as draconian and there will inevitably be decisions which are successfully challenged. The aim of the legislation is to improve community living so that the few do not blight life for the many.