Scottish Government

CHAPTER SEVEN: BREACHES OF ANTISOCIAL BEHAVIOUR ORDERS

Introduction

7.6 This research considers the breach-rate for ASBOs in Scotland. It uses court 'conviction' data to provide a national breach-rate for all ASBOs since they were introduced. It also tracks a sample of ASBOs through criminal justice data systems to provide a more detailed account of breaches. It considers the views of ASB co-ordinators (presented in accompanying research) to establish what ASBO breach means and how it may or may not be used to demonstrate the effectiveness of ASBOs.

The ASBO breach rate in Scotland 1999-2007

7.7 From their introduction in 1999 until March 2007 (latest available figures), 1370 individuals were made subject to ASBOs in Scotland. Of these, 1359 individuals were adults and 11 were under-16s.

Table 7.1: ASBOs granted 1999-2007

Source: Scottish Government returns April 2008

7.8 Of the 1370 people with ASBOs, 485 (35.4%) were prosecuted at least once for a breach of their ASBO and 392 (28.6%) people were convicted of at least one breach.

7.9 The rate of proven breaches for all ASBOs 1999-2007 (28.6%) is lower than the breach-rate in England and Wales which is 49% ⁴⁹ (Home Office, 2008). England and Wales has however historically seen far greater use of " ASBOs on conviction" where ASBOs are awarded as a sentence for another criminal offence. This may inflate the breach rate if those attracting ASBOs on conviction have a more entrenched pattern of offending. There is also far greater use of ASBOs for young people: 20% of ASBOs in England and Wales are given to people aged under 16 compared to less than 1% in Scotland. In England and Wales, 40% of ASBOs are given to people aged under 18 (Home Office, 2008) compared with around 13% in Scotland ⁵⁰ (Scottish Executive, 2007.) While the higher proportion of young people attracting ASBOs in England and Wales might not necessarily inflate the breach rate, it does suggest that comparisons north and south of the border should be made with caution.

7.10ASBO breaches cannot be prosecuted if the perpetrator is prosecuted for a separate offence which took place at the same time as the breach e.g. if someone commits an assault or a breach of the peace in an area which their ASBO forbids them to be. In cases like these the ASBO breach would instead be added as an aggravation. There are therefore likely to be a substantial number of breaches where the accused has been prosecuted for other offences and where their ASBO breach has been added as an aggravation rather than as the main charge. These cases will not be included in the conviction statistics. In England and Wales, ASBO breaches can be prosecuted as well as other offences committed at the same time and this may be one reason for differences in conviction rates.

7.11 Table 7.2 shows the financial years in which the 392 breached ASBOs were first breached. The cumulative breach-rate shows an increasing rate of ASBO breach. This rise is to be expected because many ASBOs are of long or infinite duration. The annual breach rate includes both ASBOs that were awarded and breached in the same year as well as ASBOs from previous years that had been breached for the first time.

Table 7.2: ASBO breach convictions 1999-2007 by financial year of first breach conviction

Source: Scottish Government Court Proceedings Database

7.12 A large proportion of individuals with ASBOs (71.4%) have never been convicted for breach.

7.13 Table 7.3 shows the number of convicted breaches for each individual who was convicted of at least one breach. Of these, 56% were convicted for one breach, 22% were convicted for 2 breaches and 22% were convicted for 3 or more breaches.

Table 7.3: Number of convicted breaches per individual

Source: Scottish Government Court Proceedings Database

Note: Percentages do not add up to 100 due to rounding

7.14 Table 7.4 shows the age of offender on the date of their first conviction for breach. Although 43.8% of people were under 25 when they first breached their ASBO this group have also received more ASBOs. The latest available figures said that 42% of ASBOs were given to people aged 25 and under (Scottish Executive, 2007.) This suggests that this age group are breaching ASBOs at a similar rate as other age groups. The average age of offenders at first breach conviction is 31.

Table 7.4: Age at First Conviction for Breach

Source: Scottish Government Court Proceedings Database

Note: Percentages do not add up to 100 due to rounding

Court disposals for breach

7.15 Table 7.5 shows the sentences for all individuals' first breach conviction and for all breach convictions. These show that ASBO breach is attracting a high use of custody, either in prison or in a young offenders' institution. On first conviction, this is the disposal used in just over a quarter (27%) of cases. When all cases are included it is the disposal used on just over a third of occasions (35%.) This indicates that the severity of sentence is increased for repeat breaches of the same order. There is also a notably high use of admonishment indicating a wide divergence in sentencing. This divergence may perhaps be explained by the fact that the severity of the court disposal following a conviction for ASBO breach is influenced by the circumstances of the breach. Court disposals may include sentences given for other offences for which the offender has been found guilty at the same time. Data on convictions is also limited in its usefulness because it does not contain the specific information about the individual cases. Sentences need to be understood relative to individuals' past offending behaviour and other criminal behaviour which may have taken place at the same time as the ASBO breach.

Table 7.5: Sentences for individuals' first breach and all breach incidents

Source: Scottish Government Court Proceedings Database.

Note: The percentage column does not add up to 100 due to rounding

7.16 The next section looks at other data sources from local authorities and the police to provide a more detailed account of ASBO breach.

A more accurate measure of 'breach rate'

7.17 As well as court data on proven breaches this study looks at the rate of "alleged" breach incidents. These are occasions where people with ASBOs have been involved in incidents which police have recorded as a breach of an ASBO. These incidents will not necessarily have resulted in prosecutions or convictions but were simply occasions where police recorded the occurrence of an ASBO breach.

7.18 There are procedural reasons why a recorded breach may not result in prosecution or conviction. For example, as already explained, in Scotland if an individual with an ASBO commits another offence such as a breach of the peace or an assault and this separate offence is prosecuted, the ASBO breach cannot be prosecuted and will instead be added as an aggravation. Also, an ASBO breach may be narrated as part of a prosecution but then 'pled out' as part of a plea bargaining tool. These facts mean that conviction statistics may not present a wholly accurate picture of the frequency of ASBO breaches.

7.19 To provide a better understanding of ASBO breach incidence and the processes that follow, a sample of ASBOs granted in a 12 month period (April 2004 - March 2005) were taken. These ASBOs were individually tracked for the 2-3 years afterwards (to autumn 2007) through different information systems including local authority, police and courts databases. This showed how often ASBOs were "alleged" to have been breached and which of these incidents were then prosecuted and convicted.

ASBOs granted in 2004-2005

7.20 256 ASBOs granted in 2004-05 were tracked. Of these: 215 were "full" ASBOs, 74 were converted from previously granted "interim" ASBOs and 41 ASBOs were "interim" ASBOs that have never been converted to full ASBOs. ⁵²

7.21 Table 7.6 below is based on police data from summer 2007 (2-3 years since the 256 ASBOs had been granted.) It shows alleged breach incidents for all 256 ASBOs.

Table 7.6: Police data on alleged ASBO breaches of ASBOs granted in 2004-05

Source: Police command and control data provided to SG, 2007

7.22 The police recorded breach incidents against 53% of the individuals tracked in this analysis. This rate of "alleged breach" is around 20 percentage points higher than the previously estimated rate of alleged breaches in earlier published research (Scottish Executive, 2007) and is 16 percentage points higher than the proportion of ASBOs that result in a breach conviction (as reported above) Previous research estimated the incidence of alleged breach based on data reported to local authorities and the researchers experienced difficulties estimating breach prevalence using these data (Scottish Executive 2007: 61.)

7.23 Table 7.7 shows the number of repeat incidents of each individual ASBO. Police recorded 3 or more breach incidents against 40% of all the people who allegedly breached their ASBO and in one case they recorded 21 breach incidents for one individual.

Table 7.7: Repeat breaches of orders granted in 2004-05

Source: Police command and control data provided to SG, 2007

Note: The percentage column does not add up to 100 due to rounding

Convictions for breach

7.24 Of the 136 people in the sample who allegedly breached their ASBO, 83 (61%) have been convicted for the breach in court. The 'convicted' breach-rate for the 2004-05 ASBOs is therefore 32%. This is slightly higher than the rate of proven breaches for all ASBOs granted 1999-2007 presented in Table 7.2 (28.6%.) This may be explained by the fact that the numbers of ASBOs granted began to accelerate in 2004-2005. Some of these ASBOs granted in 2005-2007 have been in force for a shorter period of time and may yet be breached.

7.25 Table 7.8 shows the number of repeat convictions for breaches of ASBOs for the 2004-05 sample. Sixty-one percent of people who were convicted of breach were convicted only once and 19% were convicted of breaching their ASBO three or more times.

Table 7.8: Repeat convictions for ASBOs granted in 2004-05

Source: Police command and control data provided to SG, 2007

Note: column percentages may not add to 100 due to rounding

Court disposals for breach

7.26 In total 22 individuals from the 2004-05 sample have been given custodial sentences. This is 26.5% of those convicted for ASBO breach and 8.5% of the people given ASBOs in 2004-2005.

7.27 Given that some of these individuals were convicted of ASBO breach more than once, we also identified the disposals for all ASBO convictions (as opposed to individuals). Table 7.9 shows the court disposals for all 162 breach convictions for the 83 individuals who were convicted of breaching their ASBO. Custodial sentences were the most common form of disposals for ASBO breach. "Imprisonment" or "Young Offenders Institution" was given following 36% (58 cases) of breach convictions.

Table 7.9: Sentences for convicted ASBO breach

Source: Scottish Government Court Proceedings Database

Note: Column percentages do not add to 100 due to rounding

Breach rate as a measure of success or failure of ASBOs

7.28 Research for the 2008 review of the national ASB strategy included qualitative research with police officers and local authority officials responsible for delivering ASB strategies. These officials were asked to describe where ASBOs fit into their approach for responding to local problems of ASB. The results of this work are presented separately but some of their comments were relevant to the understanding of breach-data and the evaluation of ASBOs.

7.29 Respondents generally felt that breach statistics were not useful for assessing the effectiveness of ASBOs. One of the reasons for this is that, once breached, the order can still be effective in moderating behaviour. ASB coordinators made the point that even where cases are breached, the problematic behaviour has often reduced to a level that represents a significant improvement for the community.

7.30 Evaluations of ASBOs also need to consider the use of ASBOs as a deterrent to continued ASB. ASBOs commonly feature at the 'higher-end' of a progression of non-criminal methods used by local authorities to tackle ASB. They also, however, contribute indirectly to the effectiveness of other measures such as warning letters and acceptable behaviour contracts by representing the 'next step' if the recipient's behaviour does not improve.

Conclusion

7.31 Research from previous annual reports of ASBOs (Scottish Executive 2007) showed that, in terms of numbers, ASBOs are generally used sparingly in Scotland compared to elsewhere in the UK. In a great majority of cases ASBOs have not been proven to have been breached and even when 'alleged' breaches are considered, ASBOs were complied with in almost 50% of cases.

7.32 Accompanying research carried out for the review of the ASB policy has shown also that ASBOs are often used as a last resort after other interventions have been tried and failed. It is perhaps not surprising therefore, given the past behaviour of the individuals concerned, that around a quarter of ASBOs result in convictions for breach.

7.33 The high percentage of detected breaches that go on to result in convictions and the high percentage of convictions that result in custodial sentences shows that the courts are treating ASBO breaches seriously and the threat of serious punishment is firmly attached to the imposition of an ASBO.

7.34ASBOs are used often in complicated and unique circumstances. Any assessment of their effectiveness needs to go beyond simple facts about compliance and breach.

REFERENCES

Home Office (2008) Antisocial Behaviour Order Statistics http://www.crimereduction.homeoffice.gov.uk/asbos/asbos2.htm

Scottish Executive (2005) Use of Antisocial Behaviour Orders in Scotland: Report of the 2003-04 Survey Edinburgh: The Scottish Executive

Scottish Executive (2005) Use of Antisocial Behaviour Orders in Scotland: Report of the 2004-05 Survey Edinburgh: The Scottish Executive

Scottish Executive (2006) Use of Antisocial Behaviour Orders in Scotland: Report of the 2005-06 Survey Edinburgh: The Scottish Executive

Scottish Executive (2007) Use of Antisocial Behaviour Orders in Scotland. Edinburgh: The Scottish Executive

Scottish Government (2007) ASB Use if the Measures, Statistics to the end of September 2007 http://www.antisocialbehaviourscotland.com/asb/files/Use%20of%20the%20Measures%20Statistics%20-%203rd%20anniversary%20stats%20-%20up%20to%20end%20September%202007%20(2).pdf