Scottish Government

C hapter Five - ASBO Outcomes and Effectiveness

Introduction

5.1 This chapter considers outcome measures for ASBOs and attempts to ascertain their effectiveness. It considers legal aid and appeals, as well as breaches (using a variety of data) and examines instances in which ASBOs have had successful as well as unsuccessful outcomes.

Legal Aid and Appeals

5.2 The survey data provides details on the proportion of cases where legal aid was applied for, granted, and where the application was objected to by the pursuant (Table 5.1.) Legal aid was granted in around one in ten cases across 2004/05 and 2005/06. While earlier surveys did not reveal the level of legal aid application levels, 2005/06 survey data revealed that legal aid applications were made in 29 per cent of all ASBOs applied for (with around one-third of these leading to legal aid being granted).

Table 5.1. Legal aid

Source: DTZ Email Survey 2003/04, 2004/05 and 2005/06.
Note: Changes to question wording mean that data is not comparable across years. 2004/05 data is expressed as a proportion of full ASBOs granted and 2005/06 data is expressed as a proportion of all applications. No question on legal aid was included in the 2003/04 survey.

5.3 According to discussions with practitioners, there were a number of cases where actions were initially defended only to be later withdrawn due to refusal of legal aid.

5.4 Appeals to the court are rare. No appeals were notified in survey returns to the 2003/04 survey. The total number of appeals fell between 2004/05 and 2005/06 despite a rise in the overall number of Orders granted. The proportion of total appeals upheld by the courts also fell between 2004/05 (when 55 per cent of all appeals made were upheld) and 2005/06 (when just 17 per cent of all appeals made were upheld), but the proportion where the Order was varied increases (from 9 per cent of all appeals in 2004/05 to 50 per cent of all appeals in 2005/06). However, it should be pointed out that we are dealing with relatively small numbers of cases in these comparisons.

Table 5.2. Number of appeals to Court

Source: DTZ Email Survey 2003/04, 2004/05 and 2005/06

ASBO Breaches

Proportion of ASBOs breached

5.5 The 2004/05 and 2005/06 DTZ surveys sought to collect meaningful information on breach by placing the number of Orders breached in the context of the number of the number of Orders in force on 31 March (i.e. the final day) of the year in question. This is a crude measure since some of the Orders in force on 31 March may have been breached outside the financial year covered by the survey and some Orders breached in the course of the year may no longer have been in force on 31 March. However, it was considered to be the best method available. Using this measure, over these two years, the proportion of ASBOs breached rose slightly across Scotland: from 26 per cent to 31 per cent. There was considerable variation in the breach rate across individual local authority areas: varying between 0 per cent and 100 per cent in each of those two years.

5.6 The case review attempted to identify cases where further complaints or alleged breaches of specified conditions had been reported following an Order being granted. Not all complaints resulted in an allegation of a breach being made. Overall, it was found that further complaints were recorded in 60 per cent of cases. Where such complaints were made to the council rather than directly to the police, the matter was normally referred to the police to determine whether it should be investigated as a possible breach. This reflects the fact that such breaches are technically criminal offences.

5.7 The alleged breach rate is somewhat lower than the complaint rate, with around half of cases being allegedly breached. This lower figure relates to the fact that not all complaints were reported as an alleged breach, either because they were minor in nature or because there was not enough evidence to support the complaint.

5.8 Interim Orders appear to have a lower than average level of complaints and breaches. This may be because they had been in place for a shorter period of time prior to the review taking place.

Table 5.3. ASBO complaints and alleged breaches

Source: Case file review
Base = 105 cases were ASBO granted

5.9 Information on the number of breaches was unavailable for eleven cases. In these cases, we have assumed the number of breaches to be only one. On this basis, the average number of individual instances of breach per breached ASBO was two. However, due to the estimate used and the fact that consultees (e.g. LA investigating officers) were often unsure of the precise number of breaches occurring in each case, it is likely that this understates the true extent of breaches.

5.10 It was felt by some consultees that the police do not take action as often as they could in instances of breach of ASBO. This was thought to be the case if there was no corroboration of the behaviour, i.e. the police must witness the breach or there must be more than one witness evidence of the breach in order for the police to charge the individual with breach of ASBO. In these consultations, a number of procedural flaws were highlighted in dealing with breaches, which included delays in ASBOs being recorded on the police database if the documentation was mailed, or delays occurred in certification by the Sheriff Clerk.

Action taken following alleged breach

5.11 The action taken following an alleged breach may indicate the seriousness of the breach incident itself. In the majority of cases, breach led to form of action, e.g. a report to the Procurator Fiscal; appearance in court; a visit from police; or a police charge. No action was taken in only a very small proportion of breaches. The proportion of alleged breaches where the outcome was not known was only 3% in 2003-04 and has fallen over the three years of the DTZ survey, suggesting good and improving information sharing among partners and data recording on breach among organisations making ASBO applications.

Table 5.4. Breaches

Source: DTZ Email Survey 2003/04, 2004/05 and 2005/06
Notes to Table 5.4.
1 Some ASBOs may have been breached more than once, so the number of alleged breach incidents is likely to exceed the number of ASBOs breached
2 2003/04 and 2004/05 data is shown as a proportion of alleged breach incidents, 2005/06 data is shown as a proportion of Orders allegedly breached. This variation is due to changes in survey questions.
3 Where multiple breaches of a single Order had occurred, the survey recorded data on the most serious action in response to each Order breached in 2005/06.
4 2005/06 data is local authority only, due to inconsistencies in RSL returns.
5 Figures may not sum to 100% due to rounding
6 A dash indicates options that were not presented in the questionnaire in a particular year.

5.12 Evidence from the case reviews show that, normally, instances of alleged ASBO breaches were handled by the police, who also took the ultimate decision on what action to take in these circumstances.

5.13 Information on sentencing in cases of proven ASBO breaches was available in 41 of the cases. Of these, only three cases resulted in no action being taken. The majority of cases were therefore heard in court and resulted in some type of charge. This suggests that breaches were taken seriously by housing providers, by the Police (who make the report to the Procurator Fiscal), and by the courts (who determine the sentence).

5.14 In only four of the 41 cases where information was available had breach of ASBO led to imprisonment. In a few other instances, however, cases may have been incomplete at the time of the fieldwork and imprisonment might still have occurred subsequently (e.g. cases recorded in Table A17 as 'on bail' or 'on remand').

Table 5.5. Action taken with respect to proven ASBO breaches

Source: Case file review
Base = data on 50 cases involving allegedly breached ASBOs. Note: 'detention' relates to young people under 21 held in custody.

Analysis of courts data

5.15 This section analyses Scottish Executive data from the criminal justice proceedings database. Table 5.6 (below) details proven charges for breach of ASBOs in the Scottish courts. It can be seen from this data that breach convictions are becoming less geographically concentrated. In the years 1999/2000 to 2002/2003, the three sheriff courts with the largest proportion of Scottish convictions together constituted 62% of Scottish activity, but this fell to 26% in 2005/06. In 1999/2000, 23 courts oversaw no convictions in this four-year period, but there were only three such Sheriff Courts (Lerwick, Oban and Peterhead) in 2005/06. This data only covers the number of proven breaches by each Sheriff Court and does not provide any information on the outcome of these cases.

Table 5.6. Proven breach of ASBO convictions

Source: Criminal Justice Proceedings Database
Notes to Table 5.6.
1 Figure for 2000-01 includes one case recorded against Aberdeen City District Court.
2 Figure for 2002-03 includes three cases recorded against Fife District Court.
3 Data is presented on a financial year basis
4 Totals may not sum to 100% due to rounding

Success and Effectiveness

5.16 Through both case file reviews and discussions with agencies, we have sought to gauge the impact of ASBOs on perpetrator behaviour. Information was available for 88 cases in total (68 tracked cases and 20 untracked cases), while the outcome for 17 cases was unknown.

5.17 The review found that in 29 cases (27 per cent) interviewees perceived an improvement in perpetrator behaviour following the Order being granted. This meant that the ASB had either ceased or had been significantly reduced.

5.18 Perhaps more noteworthy is the significant proportion of cases (over one-fifth) resulting in either an eviction or the termination ²³ of a tenancy. In all of these cases, the original ASBO application had been triggered by ASB taking place either within or near the perpetrator's own home. Indeed, tenancy terminations are far more common than eviction (17 terminations compared to only 5 evictions). This highlights the fact that an ASBO can have a major impact upon housing choices, with some choosing to leave their home rather than address their behaviour. During the case file review, it was suggested that this issue was even more prominent in areas of low demand housing. In areas where housing quality was poor and there was an alternative supply of private rented housing, there was thought to be little incentive to maintain tenancies when subject to an ASBO.

5.19 Unacceptable behaviour was thought by the consultees to have been displaced (rather than ended) in two out of the 88 cases where outcome information was available.

5.20 In four cases, perpetrators had moved into institutional settings (see Table 5.7 for more detail). In all of these cases, a continuation of ASB in breach of Orders granted had resulted in this action.

5.21 In 31 cases (29 per cent), the staff involved considered that there had been no marked improvement in perpetrator behaviour.

5.22 For the remaining 17 cases, consultees felt it was too early to judge whether there had been a change in the behaviour, or were otherwise unable to make an assessment. In all of these cases, either complaints had continued following the Order or breaches had been identified.

Table 5.7. Perpetrators subject to Orders: perceived subsequent change in behaviour

Source: Case file review
Note: The point at which perceived subsequent change in behaviour was assessed varied on a case-by-case basis, however is only reported where there is clear evidence to support the assessment. For the 10 "don't knows" we were unable to determine the outcome from the casefile or by talking to the lead agency. In the 7 "too early to say" cases the casefile review often took place within only a few months of the ASBO being granted.

5.23 While Table 5.7 attempts to quantify the effectiveness of ASBOs, such an assessment is simplistic in nature and masks the difficulties in defining 'success'. This was acknowledged by staff consulted during the review. An example given was for cases where the perpetrator was evicted from their tenancy. Such instances certainly brought relief to the communities being affected by the ASB and in this sense the ASBO was a 'success'. However, it was argued that, in at least some of these cases, household movement can mean that the problems associated with the ASB are not being adequately addressed and may simply be displaced elsewhere. An example of serious noise nuisance in Edinburgh illustrates this point:

'They [the perpetrator] were given a range of warnings … basically she was having fun [having constant parties] and knew it would have to end eventually. At the time, an ASBO was the right decision, we gave her the opportunity to change. She chose not to, and at least if she returns we can try and help again. We see this case as partly successful. It was the only real option for us and her behaviour could not continue as it was.'

5.24 The same dilemma can be seen in the case of eviction in Dundee:

'There was no change in behaviour following the Order. In fact, it got worse and became violent and threatening. After the eviction, the household presented as homeless and they were referred to the Dundee Families Project'.

5.25 The situation is slightly different when a perpetrator subject to an ASBO voluntarily leaves their tenancy because this carries no implication that repossession proceeded due to continuing unacceptable behaviour. Nevertheless, some such instances might involve displacement of ASB. Of the 17 Orders involving termination of tenancy other than through eviction, seven involved further complaints being recorded prior to the move. Some of the perpetrators concerned may be simply moving before any repossession action is initiated.

5.26 The review suggested that where perpetrators chose to leave their tenancy, it was not possible for the LA to monitor their location:

'Shortly after the ASBO was granted, both the complainers and the perpetrator (and family) moved away. The Council does not know where they are. This was arguably a successful outcome for the complainer in that it stopped the behaviour.'

5.27 A similar scenario was evident in the Edinburgh cases involving prostitutes: here the behaviour was reported to have been displaced. While the outcome of these cases was successful for the perpetrator's immediate neighbours, the ASBO may have resulted in prostitution in non-residential areas, which is less safe for the street workers themselves. However, the Council was aware of these issues and was working closely with support agencies and the Police to help prostitutes with health and safety issues:

'[In these cases] the ASBO is being used primarily as a mechanism for giving relief to local residents than necessarily providing support or help to the sex worker. The support available would have been offered whether or not an ASBO was being used.'

5.28 The problem with defining and measuring effectiveness is also true when examining cases where there has been no improvement in the behaviour. While in 31 cases, those interviewed felt that the Orders had had no positive impact on the ASB, it cannot be concluded that the ASBO is ineffective. The review has shown that action is being taken against ASBO breaches. Therefore, while the perpetrator's behaviour may not have improved, the Order has furnished the LA and its partners with the ability to respond to the ASB.

5.29 It is also important to emphasise that recorded consultee views about ASBO impacts reflected the position at the time of the most recent research fieldwork. Whether the behaviour of perpetrators will improve at some point in the future is uncertain.

5.30 Finally, it is useful to make some mention of breaches with respect to 'success'. In around one-third of breach cases where there has been an overall improvement in behaviour, these have been subject to further complaints or a breach. Breached ASBOs, therefore, do not necessarily imply no positive impact.

Table 5.8. Cases where subsequent complaints recorded: change of behaviour by incidence of complaint or alleged breach

Source: Case file review

5.31 Below are two examples of ASBOs which were initially breached, but which have ultimately resulted in a positive change of behaviour.

'After the full ASBO was granted there was a request to extend the terms on ASBO due to complaints of further harassment. Now, in the longer term, the ASBO has worked. They [the perpetrator] are still in the same property and there is evidence that the behaviour has changed for the better. The situation now is that the ASB has stopped and neighbours appear to be happy for the ASBO to be revoked.'

'The ASBO helped [the perpetrator] to address the issues she is facing. The jail visit [which was the sentence she received as a result of ASBO breach] made her realise that she needed to do something to change. As she was a victim of domestic violence, we were able to rehouse her and provide support through an SSST. During the period of the SSST, we will continue to monitor the tenancy, including neighbour complaints. Estate officers will visit, in addition, to support and to check how they are getting on. In this way, they can be proactive about any new emerging issues'.

5.32 As shown in this second case, the provision of support is an important component of ensuring longer term success. Therefore, while the ASBO is a tool for enforcement, support can assist in helping the household address problems relating to their ASB.

Summary of Main Findings

• Legal aid was granted in around one in ten cases across 2004/05 and 2005/06. While earlier surveys did not reveal legal aid application levels, the 2005/06 survey data reveals that legal aid applications were made in 29 per cent of all ASBOs applied for (with around one-third of these leading to legal aid being granted). The case file review showed a number of cases where actions were initially defended only to be withdrawn due to refusal of legal aid.
• Appeals to the court are rare. No appeals were notified in returns to the 2003/04 survey. The total number of appeals fell between 2004/05 and 2005/06 despite a rise in the overall number of Orders granted.
• Over 2004/05 and 2005/06, the estimated proportion of ASBOs breached rose slightly across Scotland: from 26 per cent to 31 per cent. The breach rate across individual local authority areas varied between 0 per cent and 100 per cent in each of those two years.
• It was found that further complaints were recorded in 60 per cent of cases. Where such complaints were made to the council rather than directly to the police, the matter was normally referred to the police to determine whether it should be investigated as a possible breach. This reflects the fact that such breach of ASBO is a criminal offence.
• Breach of ASBO was taken seriously, by housing providers, by the police (who make the report to the Procurator Fiscal) and by the courts (who determine the sentence). In four of the 41 cases where information was available, breach of ASBO led to imprisonment.
• The review found that in 27 per cent of cases, interviewees perceived an improvement in perpetrator behaviour following the Order being granted.
• Over one-fifth of the cases considered resulted in either an eviction or the termination of a tenancy. In all of these cases, the original ASBO application had been triggered by ASB taking place either within or near the perpetrator's own home.
• Where the perpetrator was evicted from their tenancy, such instances certainly brought relief to the communities being affected by the ASB and, in this sense, the ASBO could be called 'a success'. However, household movement can mean that the problems associated with the ASB are not being adequately addressed and may be displaced elsewhere.
• In 29 per cent of cases examined, it was considered that there had been no marked improvement in perpetrator behaviour.
• In around one-third of cases where there has been an overall improvement in behaviour, these had been subject to further complaints or a breach. Breached ASBOs therefore do not necessarily imply no positive impact.
• The provision of support is an important component of ensuring longer term success, while an ASBO is tool of enforcement, support can assist in helping the individuals or household address problems relating to their ASB.