Scottish Government

ISBN 0 7559 4722 3

This document is also available in pdf format (800k)

Introduction

This guidance has been produced for operational practitioners, predominantly local authority staff and police tackling antisocial behaviour at local level, by the Scottish Executive and utilising the relevant Crown Office guidance. It includes a briefing note at Annex 1 describing how the first ASBO on conviction was obtained and at Annex 2 a number of Frequently Asked Questions.

Because the statutory guidance on ASBOs published in 2004 concentrated on civil orders, this guidance note seeks to complement it and address the questions that have been raised by practitioners about ASBOs made on conviction (sometimes called Criminal ASBOs or Cr ASBOs) since the power came into force.

Contact

If you have any queries about this guidance please contact Diane Janes, Scottish Executive, Justice Department on 0131 244 4917 or email diane.janes@scotland.gsi.gov.uk

The Law

1. Section 118 of Antisocial Behaviour etc (Scotland) Act 2004.

Part 10 - Further criminal measures amends Section 234A of the Criminal Procedure (Scotland) Act 1995 by inserting 234AA to introduce ASBOs in the criminal courts. Section 234AB covers serving the order and notification of the relevant agencies.

2. As with ASBOs imposed in the civil courts, ASBOs on conviction are intended to help prevent further antisocial behaviour, but specifically in relation to incidents which the police have reported to the procurator fiscal and criminal proceedings are taken. The sheriff or justice will have the power to make an ASBO as part of the sentence when the offence committed involves or is related to antisocial behaviour and an order is necessary to protect the public from further antisocial acts. There is a requirement for the sheriff to explain the effect of the order and the consequences of failing to comply "in ordinary language".

Guidance on Antisocial Behaviour Orders - Scottish Executive 2004
http://www.scotland.gov.uk/library5/social/asbsg-00.asp

3. The 2004 guidance focused on ASBOs made in the civil court. However the following paragraphs from it should be noted in connection with this guidance:-

Para 5: discussion of circumstances in which the court may choose to impose an ASBO and evidential requirements (specifically hearsay evidence cannot be considered in criminal proceedings);
Para 23: Scottish Criminal Record Office recording of order;
Para 100: Joint working with the police;
Para 146: Local authority to maintain records of ASBOs made on conviction;
Para 155: Courts duty in relation to serving orders and notifying relevant agencies.

Applying for an ASBO on conviction

4. ASBOs on conviction are not applied for by any authority, or the procurator fiscal. It is a matter for the court based on the evidence given at trial or the Crown narration in court. However, this note provides guidance on options to consider where agencies are aware that an individual is going to be prosecuted for an offence involving antisocial behaviour and it is considered that an ASBO is needed to protect people from further antisocial behaviour.

The power is available in either the district court or the sheriff court. The court must be satisfied that:

• the person had committed an offence;
• they were over the age of 12 when it was committed;
• it was an offence involving antisocial behaviour; and
• the court was satisfied that it was necessary to grant the ASBO to protect persons from further antisocial behaviour by the offender.

5. The court must be satisfied, on the balance of probabilities that the making of an order is necessary for the purpose of protecting other person(s) from further antisocial behaviour.

6. Hearsay evidence cannot be considered in criminal proceedings, but the court will take into account previous convictions tendered by the Crown at the point of sentencing. The court can ask for additional information about the previous convictions as it may not always be clear if they include an antisocial element.

7. In committing the offence for which they have been convicted, the person must have acted in a manner that causes or is likely to cause alarm or distress or pursued a course of conduct that causes or is likely to cause alarm or distress. Conduct includes speech, and a course of conduct must involve conduct on at least two occasions. However, the requirement in respect of conduct on at least two occasions is not the only test of antisocial behaviour. Acting in a manner that has caused or would be likely to cause alarm or distress may involve only one incident.

Civil and Criminal Options

8. There is no definitive guidance on whether a civil ASBO should still be pursued if a criminal case is pending. The statutory guidance on antisocial behaviour orders states at paragraph 16 that:

"An ASBO is not intended to be a substitute for criminal proceedings where these are appropriate, and is intended to be complementary to other civil procedures such as interdict (where use of these is appropriate). Joint working and effective information sharing locally is important to ensure the most appropriate action is taken in the circumstances."

9. Local authorities and registered social landlords applying for civil ASBOs may use incidents which have been reported to the procurator fiscal as alleged criminal incidents. The authority could also decide to await the outcome of the criminal case before applying for a civil order.

10. Decisions will have to be made on a case by case basis but the priority should be ensuring that action is taken to protect people from further antisocial behaviour. Through effective joint working and sharing of information authorities can decide at what point to pursue a civil ASBO if a criminal case is pending. It may be appropriate, for example, to seek an interim ASBO, if there is likely to be a significant delay in the criminal case being concluded.

11. In considering what action is most appropriate, authorities will be aware that the fiscal may decide not to proceed with the case. Even if the fiscal decides to prosecute, there can be no guarantee that an ASBO will be made on conviction. The accused person could be acquitted, a plea could be taken by the fiscal which would exclude the possibility of an ASBO, or the court could choose to impose another disposal.

Partnership Working

12. As part of an ongoing, partnership approach to dealing with antisocial behaviour, local authorities, police and other relevant agencies should be monitoring antisocial behaviour cases in their area.

13. Local antisocial behaviour strategies provide the framework of a co-ordinated approach to dealing with antisocial behaviour. Through joint working and effective information sharing involving police, local authorities, registered social landlords and other bodies working to reduce crime and antisocial behaviour, cases can be identified where an ASBO on conviction might be appropriate. This should be considered alongside other approaches, including application for an ASBO through the civil court and alternatives such as warnings, mediation and Acceptable Behaviour Contracts.

14. Disclosure and sharing of information is of major importance in taking effective and appropriate action to prevent crime and antisocial behaviour. Section 140 of the Antisocial Behaviour etc (Scotland) Act 2004 makes specific provision on information sharing relating to antisocial behaviour and this is backed up by statutory guidance. http://www.scotland.gov.uk/library5/social/asbi-00.asp

Criminal Cases Involving Antisocial Behaviour

15. Where information from the police reveals that a person has outstanding criminal cases due to call in court involving behaviour of an antisocial nature, consideration should be given to whether the possibility of an ASBO on conviction should be raised.

16. The police and the relevant authority should collate relevant information on the antisocial behaviour of the person ensure that it can be shown that the behaviour was antisocial and that an order is necessary to prevent further antisocial behaviour.

17. Where this can be established the police and/or relevant authority should contact the procurator fiscal to discuss the potential for raising the option of an ASBO in court. Raising the option of an ASBO on conviction will not always be the most appropriate action. Consideration should be given to the status of a possible civil action and whether or not other options such as an Acceptable Behaviour Contract are more appropriate. However, in the interests of preventing crime and antisocial behaviour and cutting legal and court costs it is good practice to liaise with fiscals on handling of cases where an ASBO is being considered and a criminal case is pending.

18. If the fiscal agrees that the court might wish to consider an ASBO as a possible sentencing option, the police or solicitor of the relevant authority should prepare a draft set of possible craves, along the lines of a civil application for an ASBO. This can then be submitted to the fiscal, together with background papers to show the links between the person's behaviour and the incident/s relating to the criminal case.

19. When the case is called for sentencing, the fiscal can suggest to the sheriff or the justice of the peace that they may wish to consider an ASBO as a possible sentencing option for the case. While procurator fiscals do not have a role in sentencing as such, they can and do make suggestions for disposals, which take account of the needs of victims, for example, in the case of compensation orders. ASBOs on conviction provide a parallel to this as the court would be being asked to consider the impact on the community when sentencing. Of course, the decision as to whether or not an ASBO should be made on conviction as the sentence or as a part of the sentence is entirely for the court.

20. Where the court is considering making an ASBO on conviction, the sheriff/ JP may defer sentence, to enable the offender's solicitor to consider this option and to identify whether any arguments should be presented against it. ( See Case Study.)

21. Social Enquiry Reports are unlikely to be required by sheriffs. By the time offenders have reached this stage it is likely there would already be a good deal of information on them available. It is also likely that ASBOs on conviction will mostly address cases at the less serious end of the criminal spectrum so Stand Down reports rather than full social enquiry reports may be more appropriate in these circumstances when additional information is required for sentencing as they would not incur the amount of work or time needed to prepare a full social enquiry report.

22. The Lord Advocate has issued guidelines to the police [Lord Advocates Guidelines to Chief Constables] about the information to be included in police reports about incidents involving antisocial behaviour. In these cases, procurator fiscals should therefore have a full police report containing relevant background information about other related incidents of antisocial behaviour and any resulting action taken or due to be taken by local authorities or registered social landlords. A police report will, however, not always contain information which would allow the depute in court to "prompt" the court to consider making an ASBO. There is scope for the police to include in a police report the views of local authorities and/or registered social landlords, or indeed the police's own views as to when an ASBO may be appropriate in the event of conviction and what it's terms could be which would allow the procurator fiscal, on occasion, to "prompt" the court by indicating that the Crown may be able to assist with further information if an ASBO is being considered by the judge.

The Role of the Fiscal

23. Procurator fiscals do not have a statutory role in applying for an ASBO on conviction. However, they can put before the court, either in written form or via Crown narration, information that is directly related to the offence/s of which the accused has been convicted or has pled guilty to. Previous convictions cannot be raised before a person is convicted. Guidance has been issued to fiscals emphasising the importance of complying with requests from the judiciary, as far as possible, for further information when an ASBO is being considered.

24. If there are previous convictions of a similar nature to the offence before the court, the procurator fiscal cannot refer to the circumstances of the incidents to which the previous convictions relate. The sheriff or justice of the peace will have a schedule of previous convictions which show what kind of offence the accused was convicted of, the date of conviction and sentence, and the sentence imposed. It will not necessarily be evident from the schedule that the accused was engaged in antisocial behaviour and that an order was necessary.

25. This is because most sentences in antisocial behaviour cases would simply be listed as, eg "breach of the peace", so the precise nature of the behaviour and whether it was similar or related to the current case would not be obvious to the court. The sheriff or justice of the peace could call for additional information from the procurator fiscal about the offence before the court to inform a decision, but this would be at the discretion of the sheriff.

26. Unless a sheriff or justice of the peace calls for additional information to inform a decision about an ASBO, the most likely way in which an ASBO on conviction would be used would be when there are a number of charges which disclose a number of antisocial incidents. There may also be a number of outstanding cases for the one accused which are deferred to the same date for sentence which display a particular course of conduct justifying imposition of an ASBO.

27. Where it is relevant to the narration of the circumstances of an offence, the procurator fiscal can provide the wider context to a particular case, and this may be a factor which persuades the sheriff to impose an ASBO on conviction.

28. Authorities will not be able to put evidence of other related incidents before the court via any route when it does not comprise part of the evidence/narrative before the court related to the offence/s to which the accused has pled or been found guilty.

The Terms of the Order

29. The ASBO granted by the court should detail provisions relating to the offence/s committed by the accused. It may also contain provisions to prevent further antisocial behaviour in the community.

30. Where the court has sufficient information, the sheriff/justice of the peace may be content to draft prohibitions at the point of sentencing on a similar basis to making conditions in a probation order or a bail order. The sheriff/justice of the peace is more likely to be in a position to do this if criminal cases have been taken together at the one hearing.

31. If suggested prohibitions are drafted by the police or a relevant authority, the draft prohibitions should be given to the fiscal, the court and the offender/their defence agent before sentence is given. This is in the interests of fairness and helps ensure Equality of Arms as required under Article 6 of the European Convention on Human Rights.

Variations and Revocations

32. The person against whom the ASBO is granted can ask for it to be varied or revoked. The fiscal can also ask for it to be varied or revoked. Effectively it is appealing the sentence. Local authorities or RSLs cannot apply for variation or revocation other than via representations to the fiscal as they have no locus (legal standing) in the case.

33. The Scottish Executive Adviceline for practitioners can also provide information and advice and can be reached on:

0800 850 500

ANNEX 1 Case Study

1.. Scottish Borders Council and Lothian & Borders Police jointly obtained the first ASBO made on conviction at Jedburgh Sheriff Court on 3 March 2005. They have since obtained further ASBOs on conviction.

2.. The following study shows how they went about it. Key points are:-

• Fiscal played a key role and gave the court and defence plenty of notification that an ASBO on conviction would be suggested to the sheriff;
• Fiscal informed the defence agent;
• As a result of this preparatory work the sheriff adjourned the case so he and the defence were able to give the case due consideration;
• Good communication and information sharing between all relevant agencies was vital to ensuring success.

3. Briefing Note on ASBO obtained under Section 118 of the Antisocial Behaviour etc (Scotland) Act 2004 (prepared by Inspector Kenneth Simpson, Lothian and Borders Police)

As part of the overall strategy for dealing with antisocial behaviour in the Scottish Borders, representatives from the Scottish Borders Council, Lothian & Borders Police, local Registered Social Landlords, the Children's Reporter and other relevant agencies meet around every two months or so, to identify issues affecting the Scottish Borders area and to decide how best to implement the provisions of the 2004 Act.

This working group delegates responsibility to a sub-group known as the antisocial behaviour core group which consists of the Council's Antisocial Behaviour & Mediation Manager, the Lothian & Borders Police Local Authority Liaison Officer, the Council's Community Wardens Manager and a solicitor from the Council's Legal Services section. The group also calls in representatives from other agencies as and when required.

The remit of the group is to discuss specific instances of antisocial behaviour and this is done with reference to a "monitoring list" prepared by Lothian & Borders Police. The members of the group go through the list, identifying potential antisocial behaviour cases and determining how these may best be dealt with:-

• Further monitoring;
• Written warnings - from RSLs to antisocial tenants, from police, etc;
• Face-to-face meetings - usually involving the Antisocial Behaviour & Mediation Manager, the local police inspector, a representative from the RSL (if the perpetrator is a tenant) and the person carrying out the antisocial behaviour. They are entitled to bring along a representative, such as a support worker, if necessary;
• Case conferences - where antisocial behaviour is identified, involving a person who may have other issues to be taken into account - mental health difficulties, etc. In these instances, the group seeks to work co-operatively with mental health careworkers, etc;
• By proceeding with an application for an antisocial behaviour order ( ASBO).

In this particular case for which a section 118 ASBO was obtained, the core group identified that the subject of the ASBO had been causing problems with his antisocial behaviour around the town of Kelso. The behaviour was in particular centred around a number of readily identifiable locations.

He had received a number of verbal warnings as to his behaviour, all of which were to no avail. It was therefore considered appropriate by the group that an ASBO was the way to proceed in dealing with his behaviour. The nature of his behaviour was a cause of concern and it was felt that a speedily obtained ASBO was necessary. In addition, the person's peripatetic nature, drifting from various different accommodations, was felt to necessitate acting quickly, to ensure that the requirements of service of court documents, etc could be carried out.

Information from Lothian & Borders Police revealed that the person in question had outstanding criminal cases due to call in Jedburgh Sheriff Court involving behaviour of an antisocial nature. The section 118 procedure was felt appropriate therefore, to try and expedite matters as swiftly as possible.

The Police Local Authority Liaison Officer and the Council's Mediation Manager collated all available information on the antisocial behaviour of the person, to identify patterns in his behaviour and to ensure that it could be shown that it was:-

(a) causing alarm and distress to others; and
(b) necessary to prevent further antisocial behaviour against others.

Once this was clarified, the Mediation Manager and Council solicitor met with the Procurator Fiscal to discuss the potential for use of the section 118 ASBO procedure as a means of dealing with the person's antisocial behaviour.

The Fiscal agreed that the court might wish to consider an ASBO as a possible sentencing option and accordingly the Council's solicitor prepared a draft set of possible craves, along the lines of a civil application for an ASBO (which was to be pursued in any event, if the section 118 ASBO was unsuccessful). This was submitted to the Fiscal, together with background papers to show the links between the person's behaviour, to identify a course of antisocial conduct.

When the case called in the Sheriff Court for sentencing, the Fiscal was then able to suggest to the Sheriff that he might wish to consider an ASBO as a possible sentencing option for this case. Given the novelty of such an option, the Sheriff agreed to a two week deferral of sentence, to enable the accused's solicitor to consider this option and to identify whether any arguments would be presented against it.

After two weeks, the case called again and the Sheriff made his decision to sentence the accused to a two year ASBO, with an additional custody period of three months. There was no objection from the defence solicitor to any part of the sentence.

It is considered that the provisions of the new section 234AA as brought in by section 118, at subsection (2) are satisfied in this case, namely:

• The person had committed an offence;
• They were over the age of 12 when it was committed;
• It was an offence involving antisocial behaviour; and
• The court was satisfied on the balance of probabilities that it was necessary to grant the ASBO.

The ASBO granted by the court detailed provisions relating to the offences committed by the accused, but it also contained provisions to prevent his antisocial behaviour in other locales in Kelso. This is considered to be in line with the provision of subsection (5), namely:-

"the prohibitions that may be imposed by an ASBO are those necessary for the purpose of protecting other persons from further antisocial behaviour by the offender".

The behaviour of the person now subject to the ASBO will continue to be monitored.

For information contact:-

KScott2@scotborders.gov.uk (ASB Manager)
NFraser@scotborders.gov.uk (Solicitor)
Kenneth.simpson@lbp.pnn.police.uk (LALO)

ANNEX 2
Frequently asked Questions