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ASBO Sentencing Guidelines

It's disturbing to read the Sentencing Guidelines Council's ‘definitive guidelines' on breach of anti-social behaviour orders, released 9 December 2008. These guidelines are issued in relation to the sentencing of offenders convicted of breaching an anti-social behaviour order (ASBO) who are sentenced on or after 5 January 2009.

Where the breach has caused 'serious harassment, alarm or distress' or where such harm was intended, the starting point for sentence is 26 weeks' custody. The sentencing range is custody to two years.

Where the breach causes a lesser degree of harassment, alarm or distress, where such harm was intended or where it would have been likely if the offender had not been apprehended, the starting point is six weeks' custody. The sentencing range is a medium community order to 26 weeks' custody.

For a young person, these custodial sentences are no triviality. Criminal law students will know already why I find these guidelines so alarming. There are, in my opinion, significant problems with the way ASBOs are imposed.

Firstly, the behaviour that an ASBO may be imposed for doesn't have to be criminal. So let's be clear here - the ‘offender' can get an ASBO for behaviour that isn't even against the law. By now, any criminal law student should be screaming ‘rule of law' at the page - equality, certainty anyone? No? Okay I'll go on.

The offending conduct that results in an ASBO may be carried out with no intention to cause harassment, alarm or distress. What?! So here you are, going along, minding your own business and doing what you usually do - nothing illegal - you know because you read every single statute book there is, as a diligent law student - and because someone else finds what you're doing offensive or feels threatened, you're slapped with an ASBO resulting in anything up to two years imprisonment if you break it. In a particularly sensitive community - such as the one in which I live which is predominantly made up of elderly retired people - there will be a different local subjective perception of what anti social behaviour is to other younger more tolerant communities. So what conduct results in a potential criminal penalty is suddenly dependent on where you are and who's watching/listening. Great!

A further concern is that where an Offender acts in a group, there is no requirement to prove that their conduct, if considered alone, would be sufficient to cause harassment, alarm or distress in itself. It is only the overall effect of the conduct on the victim's mind that is relevant. Again, this loose definition focuses on the impact of behaviour — rather than on particular forms of disorder or incivility — and so ASBOs may be used to regulate pretty much any behaviour that offends someone; and their use will therefore depend on the context and the tolerance levels in the community. It also means that when you're with a group of people and one of them manages to cause a disturbance, you may well end up with an ASBO even though you did very little to warrant it.

If you're not already a little worried, consider how ASBOs are dished out. Most law students will know that applications for ASBOs are heard by Magistrates in a civil court. As established in R (McCann) v Crown Court at Manchester [2002] UKHL 39, [2003] 1 AC 787, ASBO proceedings are civil; however, the court is required to establish the criminal standard of proof per the requirements in CDA 1998, s 1(1)(a). In ASBO proceedings, hearsay evidence is admissible. Consequently, the defendant is denied the ability to cross-examine all prosecution witnesses. Further, the court can decide what weight to give the hearsay evidence.

Whilst a ASBO hearing is ‘civil' (at least in name), the penalties for breach of an ASBO are criminal. The recent issue of sentencing guidelines permitting up to six months custody where no harm is intended by the breach, or up to two years where serious alarm was caused (even if not intended) just adds further weight to the argument that ASBO proceedings should be criminal, rather than civil in nature.

Further concerns arise from the way ASBOs are drafted, which frequently covers too wide a range of behaviour for the Offender to comprehend. The restrictions imposed by ASBOs may affect the Offender socially, or in terms of their education (although legislation limits this) or employment and keeping to the terms may therefore be near impossible. ASBOs rarely make sufficient consideration of underlying problems that caused the behaviour.

I could rant on for hours about how ASBOs are bad news but I'll leave any interested criminal law students to look up how many youths received custodial sentences for non-criminal behaviour in the House of Commons, Home Affairs Select Committee (2005) Anti-Social Behaviour, fifth Report of Session 2004–05. HC 80-1 (London: The Stationery Office) and reach their own conclusion

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