News analysis Lawyers claim Asbos are well out of order

4 Nov 04
What do baseball caps, surgical masks, footballs, Eminem, noisy doorbells, and excessive sarcasm have in common?

05 November 2004

What do baseball caps, surgical masks, footballs, Eminem, noisy doorbells, and excessive sarcasm have in common?

They are all reasons why antisocial behaviour orders (Asbos) have been issued by local authorities against individuals over the past year.

OK, that wasn't a great joke. But critics say that Asbos – the government's fast-spreading wheeze to stamp out loutish and unruly behaviour – are no laughing matter either. If lawyers get their way in the High Court this month, ministers might have to rethink plans to extend the Antisocial Behaviour Act 2003, under which Asbos are issued, to cover a wider range of nuisances.

Introduced in 1999 (and redefined for wider use in 2003), Asbos are described by the Home Office as 'statutory measures that aim to protect the public from behaviour that causes or is likely to cause harassment, alarm or distress'. Put simply, they are powers granted to police and local authorities prohibiting local nuisances from specific acts (such as wearing a baseball cap to prevent identification on CCTV) or entering defined areas for a minimum of two years.

Asbos are merely one of the tools used to stamp out loutish behaviour under the Act. Others include dispersal orders, designed to stop gangs congregating. But there has been a temptation to refer to all antisocial behaviour tools in terms of Asbos.

On October 28, Prime Minister Tony Blair and Home Secretary David Blunkett gave fresh impetus to their pre-election plan to convince voters that Asbos are among the most effective crime fighting tools since Inspector Morse. They promised parish and town councils powers to issue on-the-spot fines for such offences as littering, dog-fouling and graffiti.

The Home Office also identified 50 areas in England and Wales blighted by antisocial behaviour that would receive extra funds to issue Asbos (each costs about £5,000 to enforce).

Blair called on police and local councils to use Asbo powers 'relentlessly' to curb nuisances.

A Home Office audit report indicates that 2,633 orders were granted between October 2003, when the orders were 'beefed up', and September 2004 – more than the total between 2000 and 2003.

But Barry Hugill, a spokesman for human rights group Liberty, told Public Finance there were 'serious concerns' over the rise, because Asbos were increasingly being used to tackle behaviour they were not designed for, such as serious crimes and the break-up of demonstrations.

Moreover, Liberty claims human rights laws could be being violated.

Asbos are civil orders, but a breach of one is a criminal offence. About a third are breached, leading in many cases to imprisonment. The maximum penalty is an unlimited fine and up to five years in prison.

Liberty claims such incarcerations are disproportionate to the 'crimes' committed. Asbos often involve curfews so, theoretically, a person could be imprisoned simply for being outside after a specified time.

Hugill said: 'Our biggest concern is that Asbos could become a back-door way of imprisoning people using fickle burdens of proof. The only proof currently required is a breach of the Asbo. Legally speaking, extending the remit of Asbos is a very dangerous route for the government to go down, particularly when ministers are trying to manage prison numbers.

'Asbos are attractive to politicians because they make it look as though the government is getting tough on crime. But they were designed to combat low-level nuisances. Serious crimes should be dealt with entirely through criminal courts, and there are other laws that could be used to prevent demos and the congregation of individuals – such as the Criminal Justice Act.'

Liberty is backing a legal challenge to the ASB Act in the High Court this month. The London Borough of Richmond upon Thames has introduced a curfew preventing children aged under 16 from entering the town centre unaccompanied after 9pm – 'effectively outlawing 15-year-olds', Hugill says.

Lawyers acting for a 15-year-old will contend that this prevents youngsters from undertaking legal actions, such as watching a certificate 15 film that finishes after 9pm, and breaches the right to freedom of assembly.

If the challenge is successful, Hugill says it could 'raise question marks over the use of Asbos and dispersal orders anywhere'.

Tony Blair and David Blunkett will watch with interest. Their pre-election anti-crime drive is increasingly dependent on it.


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