19. Memorandum submitted by Napo
ANTI-SOCIAL
BEHAVIOUR ORDERS—ANALYSIS
OF THE
FIRST SIX
YEARS
(a) Introduction
Anti-social Behaviour Orders were introduced
in April 1999 as part of the Crime and Disorder Act 1998. It is
a community based order which can be applied for by the police
or local authorities in consultation with each other against an
individual, or several individuals, whose behaviour is anti-social.
The behaviour must cause alarm, distress or harassment to one
or more people not in the same household as the offender. Applications
are made to the Magistrates Court acting in a civil capacity.
The court, if the order is made, can impose additional restrictions.
However, controversially, breach of an order without reasonable
excuse is a criminal offence tryable either way with a maximum
penalty of five years in prison. Home Office notes published at
the time the Act was introduced state, "the prohibitions
and the order must be such as are necessary to protect people
from further anti-social acts by the defendant in the locality.
It is intended that the order will be targeted at criminal, or
sub criminal, behaviour, not minor disputes between neighbours
or matters which can be dealt with effectively under existing
legislation."
(b) Orders made
The number of orders made has escalated over
the six-year period that ASBOs have been available. During the
first eight months in 1999, only 104 orders were made. However,
there has been a significant escalation with more than 2,600 orders
made since November 2003. The Parliamentary Answers reveal that
the breach rate has been 39% for 10-15-year-olds, 38% for 16-20-year-olds,
and 31% for those aged over 21. However, figures are only available
on numbers jailed for the years 2001 and 2002. In 2001, 114 persons
breached by the courts following the imposition of an ASBO were
jailed out of 322 issued. In 2002, 212 were jailed out of 403
issued. These figures would suggest that around 50% of those who
are the subject of an ASBO eventually end up in jail.
(c) Abuse of intention
Napo believes that the original purpose of the
ASBO has been abused in some areas. In many incidents, individuals
are receiving a custodial sentence where the original offence
was not itself imprisonable. This includes people banned from
begging or prostitution. The ASBO is clearly, therefore, moving
offenders up tariff and resulting in the inappropriate use of
custody. ASBOs are being used against young people whose behavour
may be anti-social but not necessarily threatening. It is being
used to deal with nuisance which could be dealt with in other
ways. There is also ample evidence that the ASBO merely moves
the anti-social behaviour to a different district. There is also
evidence to suggest that many of the young people involved eventually
end up in Young Offender Institutions.
In Napo's view, it is time the Home Office thoroughly
reviewed the role and purpose of the ASBO and sentencing discrepancies.
An individual is far more likely to be the subject of an ASBO
in Greater Manchester than in Merseyside. In the first six months
of 2004, 155 persons were the subject of an ASBO in Greater Manchester
compared with just 27 in Merseyside. Similarly the number of individuals
subject to an ASBO in West Yorkshire, during the same period,
was 128 compared with just 22 in South Yorkshire. Again, during
the first six months of 2004, 38 ASBOs were issued in Lancashire
compared with just four in Leicestershire.
INCONSISTENCIES IN USE OF ASBOs 2003-04
| Magistrates Courts Committee/ Police Force area
| 1 January 2003 to31 December 2003 |
1 January 2004 to30 June 2004 |
| Derbyshire | 4 | 10
|
| Devon and Cornwall | 7 |
10 |
| Essex | 13 | 16
|
| Gloucestershire | 5 | 7
|
| GLMCA/Metropolitan Police | 93
| 102 |
| Greater Manchester | 189 |
155 |
| Lancashire | 38 | 38
|
| Leicestershire | 2 | 4
|
| Merseyside | 37 | 27
|
| South Yorkshire | 28 | 22
|
| Suffolk | 20 | 23
|
| West Midlands | 68 | 39
|
| West Yorkshire | 79 | 128
|
| North Wales | 11 | 8
|
| South Wales | 29 | 13
|
| Total England and Wales ALL Magistrates Courts
| 958 | 952 |
| | |
(d) Case studies
Napo has collected a number of case studies over the last
12 months which illustrate the difficulties:
1. Earlier this year an application was made in Manchester
for an ASBO on a female prostitute. It was alleged she was causing
a nuisance in Manchester by accosting men and generally causing
offence. The Magistrates agreed to an ASBO. One of its conditions
was that she was prohibited from carrying condoms within the given
area. Unfortunately her drug clinic was within the restricted
area and one of the services it provided was the provision of
free condoms as part of its harm-reduction strategy. She has now
breached the order, has been put on probation and is facing the
possibility of prison.
2. An 18-year-old youth was recently made the subject
of an ASBO in the same city with a condition not to congregate
with three or more other youths. He was subsequently arrested
for breach of his order when he was entering a local youth club
on the grounds that there were more than three youths in the premises.
This was a successful club with a good reputation providing a
valuable service to young people locally, and on the particular
evening the session scheduled for the youths was how to deal with
anti-social behaviour.
3. Again this year, in Manchester, the Council used
its powers to obtain an ASBO to stop mobile soup vans operating
in the city centre. These vans provide food and assistance regularly
each evening to about 100 homeless people. The Council however
argued that after the vans had left there was a mess all over
the place and people had complained. Probation staff argued that
the same could be said about every kebab shop, pub, chip shop
and off-licence in the city.
4. A probation officer recently visited a 20-year-old,
long term, prisoner in the North East to finalise his release
plan. He expressed the wish to return to his grandmother's flat
two weeks hence. He had been her registered carer since he was
about 12 years old. She wasn't well and needed assistance. However,
the day before his release the Council obtained an ASBO on him
which included a condition that he was banned from entering the
estate where his grandmother lived because of previous activities
in the area.
5. A drug addict faced jail if he was caught sleeping
in the street or begging in "an earnest or humble way".
Greater Manchester police obtained an ASBO against Peter Broadbent
aged 36 after he pleaded guilty to rough sleeping under the Napoleonic
Begging Laws. He was found under the Mancunian Way surrounded
by needles and now faces up to five years jail if he breaches.
During the year, another homeless man, Leonard Hockey, who begged
in a non-aggressive way in Kendal's car park was ASBOed. He was
later breached and jailed and died before finishing his sentence.
Broadbent's ASBO prevents him from sleeping rough contrary to
Section 4 of the Vagrancy Act 1824 and asking "earnestly
or humbly" for money in a place to which the public have
access. He is also banned from selling the Big Issue without a
license.
6. A youth recently appeared in Court in Manchester
for breach of his ASBO. The Order had been made in the youth's
absence without his being able to give his side of the story (one
of the main concerns about ASBOs and one that can lead to misuse).
The day after the Order was made someone came to his house to
"serve" it on him. This consisted of his being handed
a copy of what was a fairly bulky document running to several
dozen pages with no attempt to explain it or even to ascertain
if he was literate enough to read it. The Order included an restriction
preventing him entering a particular estate nearby and another
preventing him from associating with certain others. Unfortunately,
he went out before reading the Order and beached it twice that
day. The next day he went out again and breached it three times
by mistake as he had not read the part covering the particular
restriction. He now faces possibly custody although he has never
been convicted of a criminal offence.
7. A 40-year-old woman made over seven hundred 999
calls from various phone booths in her town over a four to five
month period. The police applied for and obtained an ASBO banning
her from the booths and from making 999 calls. She made a further
999 call within days of the ASBO being made and was subsequently
given two weeks imprisonment.
8. A 26-year-old homeless beggar from Birmingham
was banned from begging in various car parks in Birmingham. He
breached almost immediately and was, according to his solicitor,
given 24 months custody. He was discharged earlier this year having
served about eight months and was breached again for returning
to begging and on this occasion got three years' jail. His solicitor,
therefore, says he received a total of five years' imprisonment
for an offence that itself is non imprisonable.
9. A 50-year-old man with numerous convictions for
shoplifting, clearly ill and a kleptomaniac, was banned from going
into certain shops. If he entered other shops the condition of
the ASBO was he told the shopkeepers of his conviction and the
condition.
10. A teenage boy in the Oldham area has been banned from
displaying the name of a gang anywhere on his body. The ASBO was
issued to Damien White which banned him from the district of Sholber.
The order prevents him from displaying a gang name "Mayhem"
on any part of his body or publicly displaying any mark or words
to identify himself with any gang or group of youths causing a
criminal act or anti-social behaviour.
11. A 13-year-old was served an order banning him from
using the word "grass" anywhere in England and Wales.
(Source—Statewatch ASBOwatch)
12. In May 2004, a 16-year-old boy was banned from behaving
in an anti-social manner at school. The five year order covers
the whole of England and Wales and came as a response to his disruption
of a science class (Source—Statewatch ASBOwatch)
13. In February 2003, a 16-year-old boy was banned from
showing his tattoos, wearing a single golf glove, or wearing a
balaclava in public anywhere in the country. He was also forbidden
from congregating in public places in groups of more than three
people. (Source—Statewatch ASBOwatch)
14. In July 2004, a conman convicted at Harrow Crown Court
was served an ASBO which orders him "not to call on any residential
premises (by way of doorbell, knocking or phone call) without
the prior permission of the occupier". (Source—Statewatch
ASBOwatch)
15. In May 2003 a 19-year-old was banned from entering
his own home on his release from prison. (Source—Statewatch
ASBOwatch)
16. In December 2003 a 19-year-old convicted of graffiti
damage to a tube depot was served an order banning him from carrying
any graffiti related materials for a period of five years. He
was also banned, over this time, from associating with any of
those he committed the original offence with. (Source—Statewatch
ASBOwatch)
17. In October 2004, a profoundly deaf girl was served
an order for spitting in public. Having broken it she is currently
in prison on remand. (Source—Statewatch ASBOwatch)
18. In September 2004, on the same day as he was released
from prison, a 21-year-old found himself back in court being served
with an interim order which banned him from entering any car park
in England and Wales, touching any car without the owners permission,
and riding a bicycle. On the full application hearing, the Council
also managed to have him banned from wearing all forms of headwear
in public. (Source—Statewatch ASBOwatch)
19. The oldest recipient of an order to date is an 87-year-old
who among other things is forbidden from being sarcastic to his
neighbours (July 2003). He was subsequently found guilty of breaking
the terms of his order on three separate occasions. He awaits
sentencing but the judge has already made it clear that "there
will be no prison for an 88 year old man". (Source—Statewatch
ASBOwatch)
20. In July 2004, a 15-year-old from Surrey received an
order banning him from drawing graffiti anywhere in England and
Wales or to be in a public place with spray paint, marker pens,
etching materials or any other articles related to the practice
of graffiti. (Source—Statewatch ASBOwatch)
21. In August 2004, a 57-year-old homeless alcoholic was
banned from carrying or consuming alcohol in a public place and
entering licensed premises. Unsurprisingly he breached the order
within two weeks. (Source—Statewatch ASBOwatch)
22. Again in August 2004, 47-year-old was banned from
buying or consuming alcohol anywhere in England and Wales. Having
breached it he was sentenced to eight months in prison but walked
free because of the time spent on remand. (Source—Statewatch
ASBOwatch)
23. In July 2004, a 51-year-old was served with an order,
and has since breached, banning him from consuming or being under
the influence of alcohol in any public place on Merseyside and
using abusive or insulting language. (Source—Statewatch
ASBOwatch)
24. In October 2004, a 15-year-old was served an order
for playing football in the street. (Source—Statewatch
ASBOwatch)
25. In October 2004, two brothers aged 10 and 11 were
banned from, among other things, congregating in a group of more
than two people, riding as a driver or passenger on a motorcycle,
setting foot on any school premises unless attending a lesson
and entering any domestic or commercial property without consent
of the owner. (Source—Statewatch ASBOwatch)
26. In December, Brian Hagan from Norfolk became the first
farmer to be the subject of an ASBO when he was ordered to keep
his swine and geese under control after people living near to
his farm complained of damage. The order was made on Monday of
the week beginning 13 December, but on Tuesday he was charged
with allegedly breaching the order after reports that his pigs
had escaped again. A breach of the order could lead to up to five
years in jail.
27. A 26-year-old West Lothian man has been made the subject
of an ASBO after playing the Band Aid single "Do they know
it's Christmas" dozens of times daily to the annoyance of
neighbours. He has been banned from "playing loud music,
stamping his feet and dropping objects." (Source—BBC
News)
BBC News)
29. The endless blazing rows of a couple in Blackburn
led to their being made the subject of an ASBO barring them from
contacting each other. The 47-year-old man was additionally ordered
not to go within 50m of his fiancé's home. He argued this
was completely over the top and Blackburn magistrates eventually
backed down and overturned the order. (Source—BBC News)
30. A West Midlands woman was the subject of an ASBO banning
her from using a pay as you go mobile, using a mobile phone that
is not in her name, or using a mobile to make nuisance calls for
five years after she tried to convince the parents of a former
school friend that their daughter had been kidnapped and forced
into prostitution. Police said an investigation into the kidnapping
allegations had used 640 hours of police time before the young
woman was tracked down. (Source—BBC News)
31. A 43-year-old Port Talbot woman was also made the
subject of an ASBO after making 765 nuisance calls to the emergency
services in less than a year. On one occasion she complained she
was having difficulty tuning in her television. She received an
interim ban stopping her from calling the emergency services unless
there really is a crisis. (Source—BBC News)
32. A 17-year-old Birmingham youth as been banned from
travelling on the top deck of buses. The conditions of his ASBO
are that he cannot travel on a bus unless he sits where the driver
and other passengers can see him. (Source—BBC News)
33. A 17-year-old from Oldham has been banned from using
the word "grass" as a term of abuse against people who
"stood up to him" and from other abusive language and
throwing missiles. (Source—BBC News)
34. In Harrogate, police wanted to ban persistent criminals
from entering the town. They asked magistrates to consider an
ASBO preventing known offenders for crimes like burglary from
setting foot in the town. (Source—BBC News)
(e) Conclusion
The number of anti-social behaviour orders has escalated
markedly since November 2003. 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.
31 January 2005
|
