Anti-Social Behaviour Order - Criticism of ASBOs

Criticism of ASBOs

From their inception, ASBOs have been controversial. They have been criticised as being "without strong and principled justification", a distraction from the failure of the government's law and order policies, a "recipe for institutionalised vigilantism", and an "emblem of punitive populism". Andrew Rutherford has commented that the "ASBO provides a particularly striking example of the criminalisation of social policy." A MORI opinion poll published on 9 June 2005 found that 82% of the British public were in favour of ASBOs; however, only 39% believed they were effective in their current form. A 2012 survey by Angus Reid Public Opinion showed that only eight per cent of Britons believe ASBOs have been successful in curbing anti-social behaviour in the UK.

Andrew Ashworth is a notable critic of the ASBO's effect of criminalising behaviour that is otherwise lawful. Other parties have voiced concerns about the open-ended nature of ASBO penalties – that is, there is little restriction on what a court may impose as the terms of the ASBO, and little restriction on what can be designated as antisocial behaviour. Critics have reported that only around 3% of ASBO applications have been turned down. In July 2007 the Local Government Ombudsman published a report criticising Manchester City Council for serving an ASBO based purely on uncorroborated reports of nuisance by a neighbour, and the Council agreed to pay £2000 in compensation.

A 2005 memorandum submitted by the National Association of Probation Officers (NAPO) asserted that "there is ample evidence of the issuing of ASBOs by the courts being inconsistent and almost a geographical lottery. There is great concern that people are being jailed following the breach of an ASBO where the original offence was itself non-imprisonable. There is also evidence that ASBOs have been used where people have mental health problems where treatment would be more appropriate. In NAPO's view the time is right for a fundamental review of the use and appropriateness of Anti-social Behaviour Orders by the Home Office."

In 2002 Home Office data stated that in the cases where information was available, there was a high proportion where some mitigating factor appeared to have contributed to their behaviour. Almost a fifth had a drug abuse problem and a sixth a problem with alcohol. Overall 44% had a substance abuse problem or learning disability and a further 16% included persons with psychological and behaviour problems in the family. Similar results are found in Scotland. A casefile review showed that 55% of those given ASBOs had substance abuse, mental health or learning disability problems. ("The Use of ASBOs In Scotland", H. Pawson, School of The Built Environment, Heriot-Watt University, Edinburgh, 2007.)

A survey of Youth Offending Teams by the British Institute for Brain Injured Children in 2005 showed that 38% of ASBOs went to young people with significant mental disorders. Problems included clinical depression/suicidal tendencies, autism, psychosis, personality disorders, learning disabilities, and ADHD. By contrast, the same survey of ASBO teams gave only a 5% reported incidence of mental impairment. This massive difference suggests that most ASBO teams do not take into account mental health problems even though the Home Office safeguards for vulnerable people in the ASBO process require it.

ASBO effectiveness has also been questioned. In a House of Commons reply it was stated that 53.7% of ASBOs were breached in England in 2005; 69.4% in 2006; 70.3% in 2007. In large cities rates can be higher: the breach rate in Manchester reached 90.2% in 2007. This level of breaching raises an interesting issue. The first test to justify the issuing of an ASBO is that ASB has been proved to the criminal standard. The second test is that the order is necessary to prevent future acts of ASB and provide protection to the victim. However the criminal standard is not applied to the second test. Indeed Lord Steyn (House of Lords in R (on the application of McCann) v. Manchester Crown Court, 1 AC 787,812, para 37) said

The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation.

With English national breach rates of 70%, higher in some cities, and an approximately 98% success rate in granting ASBO applications, such 'judgments' in practice must frequently be faulty.

According to government evaluations (e.g. Housing Research Summary No. 230; DfCLG) in the 'ASB Intensive Family Support' (Sin Bin) projects introduced to supplement ASBOs, 80% of the families targeted had serious mental/physical health and learning disability problems; One in five families had children affected with Attention Deficit Hyperactivity Disorder, 60% of the families were recognised as victims of ASB. Project managers described many families as 'easily scapegoated' in neighbour disputes. HRS 230 calls for a review of ASBO policy and investigation procedures to make the whole process fairer.

A later study of 53 projects by the National Centre For Social Research noted that 42% of children with mental health problems were reported to have ADHD or hyperactivity, and 29% depression or stress. Amongst adults, 69% had depression.

A later comprehensive review of Family Intervention Projects over a decade found little objective evidence for significant, sustained reduction in ASB in the families, and concluded that underlying mental health and disability problems remained largely unaddressed.

In the UK, there has been criticism that an ASBO is sometimes viewed as a badge of honour by youth.

Nacro, the biggest criminal justice-related charity in England and Wales, has published two reports: the first claiming that ASBOs were a failure due to being costly and slow to obtain; and the second criticising their use by the courts, saying that they are being used too hastily, before alternatives have been tried.

In May 2012, the government proposed replacing the ASBO with a "criminal behaviour order" (nicknamed "crimbo" in the media), and a "crime prevention injuction".