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Could Current ASBO Reforms Create a New Brand of Criminal?

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

Legislative reforms to the existing ASBO are currently going through Parliament. S.1 of the Anti-Social Behaviour, Crime and Policing Bill 2013-2014 will replace the current Anti-Social Behaviour Order (ASBO), with an Injunction to Prevent Nuisance and Annoyance (IPNA).

Several alterations are at work, most noticeably the change in definitions. The definition of anti-social behaviour provided for by the ASBO is “conduct which caused or is likely to cause harassment, alarm of distress”. The IPNA refers to anti-social behaviour as “conduct capable of causing nuisance or annoyance to any person.”

Breach of the IPNA is referred to as a civil contempt of court, and is thus a civil matter, unlike the criminal conviction implicated by breach of an ASBO. Labour has argued that this makes the IPNA weaker as it removes the criminal conviction; however, with the threshold being severely lowered, this preconception seems misguided. Issue of an IPNA will be more common. Additionally, the breach of an IPNA will incur the same possibility of custody as that of an ASBO. For those over 18, breach of an IPNA could result in up to two years imprisonment, or, an unlimited fine. If serious, a court can also impose detention for those under 18.

Should the Anti-Social Behaviour be more extreme, a Criminal Behaviour Order (CBO) will be available, which entails a criminal conviction if breached. This can result in criminal sanctions such as up to five years imprisonment for adults, and up to a two year detention and training order for under-18s. However a CBO can only be applied for on conviction of a criminal offence. This article will primarily focus on the role of an IPNA; however, many of the controversies are applicable to both.

Evidently, these reforms will have mass social implications. K.J. Brown, outlines the various political issues entangled in his article, “Replacing the ASBO with the injunction to prevent nuisance and annoyance: a plea for legislative scrutiny and amendment”. These include the implications on the young, disabled, and poor, as discussed below.

To begin with, the ASBO concerned anti-social behaviour which caused “harassment, alarm or distress.” What may previously have been thought of as typical young, boisterous behaviour will now fall under the category of “nuisance or annoyance”. Following an enlargement of actions that could fall under the scope of an IPNA, there is likely to be a severe increase in the number of youths being punished.

Whilst a robust attitude by the government can act as a deterrent, the ability to educate youths should not be undermined. Whether these youths are made aware of their legal stance under the current ASBO is doubtful. Given the wider scope of the IPNA, there is a necessity to make youths fully aware of the consequences their actions could have. Youths may be building up unnecessary criminal records from an early age, which will of cause haunt them into their adult lives. How teenagers are expected to know which behaviour they are legally able to exercise is similar to their understanding of the current English legal system.

Politicians are aiding this issue with a less than suitable method. S.49 of the Children and Young Persons Act 1933, which disallows reporting of proceedings for young people, will not apply to IPNAs. Parliament hopes that it will raise public awareness of inappropriate behaviour and the consequences. However, what may aid awareness, will in turn subject young people to an attack of liberties. Controversies regarding privacy and child protection will be brought to light.

Once brought into the media’s eye, children as young as 10 will be essentially branded as societies’ criminals regardless of the lack of criminal conviction. This is a social label which Parliament offers no cure.

With regards to disabilities, two main concerns come to light. Firstly, there is no ‘mens rea’ requirement. Those with learning disabilities may be issued an IPNA, regardless of not fully comprehending the consequences of their actions. Secondly, the Bill gives local authorities the discretion to decide what they consider to be anti-social behaviour. Those with learning disabilities often wrongly have less political influence in society and are at risk of communities branding their behaviour as anti-social due to a lack of a true understanding of their psychological behaviour. We can only hope that a court would take such considerations into account before issuing an IPNA.

The arguments against the Bill all stem from a ‘nature vs. nurture’ debate. Unlike the ASBO, the IPNA can carry positive requirements such as participation in reforming programmes. These programmes are designed to be approached with self-awareness, and a willingness to change. Being coerced into them by the law, in order to become the ‘ideal citizen’, will not have the desired effect.

JUSTICE, an independent human rights organisation, has voiced concerns to Parliament that both the IPNA and CBO are excessively detrimental specifically to the under 18s affected. Various recommendations have been offered; for example, applying the criminal standard of proof rather than the civil, replace the “nuisance and annoyance” test with the pre-existent “harassment, alarm or distress” test currently underway, and only using the heavily-loaded CBO for over 18s when reasonable. In light of the above-mentioned concerns, Parliament must accept it as wise to adopt these proposals.

The number of ASBOs issued is increasing. 1,414 were issued in 2011, as opposed to the 350 in 2001. Nevertheless, this Bill does not seem to offer a reasonable response. Instead of being penalised, vulnerable groups in society should be supported. This could be through a greater encouragement to seek help and support from their local communities. Reforming programmes are immensely beneficial if approached with the right state of mind. This could be further endorsed through a more adequate education of the English legal system. If youths know from a young age what their rights, liberties, and social obligations are, it would certainly be interesting to observe how they progress. With regards to the Bill itself, either the threshold should be raised, as to not come down on cases only considered “capable of nuisance or annoyance”, or those implicated with such an offence should not then go on to become society’s latest victims through forced programmes, social labels, and the media. The Bill is wrongfully making the assumption that individuals always act deliberately with awareness of the implications. They should not be cast into the public’s judgemental eye for this lack of understanding and appropriate education.

Further Reading

K.J. Brown, Criminal Law Review (P623 2013), “Replacing the ASBO with the injunction to prevent nuisance and annoyance: a plea for legislative scrutiny and amendment”.

gov.uk, Fact sheet: Replacing the ASBO

Justice.org.uk, Anti-Social Behaviour, Crime and Policing Bill: JUSTICE submits briefing to the Public Bill Committee..

Jean Parkinson, Injunction to Prevent Nuisance and Annoyance.

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Tagged: Criminal Law

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