Annex I Antisocial Behaviour Orders
Background
1. The power of a court to grant an Antisocial Behaviour Order ( ASBO) is contained within section 4 of the Antisocial Behaviour etc. (Scotland) Act 2004 ('the 2004 Act'), while an interim order is contained within section 7. An order may be granted if the defender is at least 12 years old, has engaged in antisocial behaviour ( ASB) and the order is necessary for the purposes of protecting others from further offending. ASB is that which causes or is likely to cause alarm or distress to someone not of the same household as the perpetrator. Both local authorities and registered social landlords can apply for ASBOs.
Antisocial Behaviour Review
2. Research suggests that ASBOs are largely used in an appropriate, proportionate and timely manner in most local authorities. The number of cases resulting in ASBOs represents only a very small proportion of the total number of ASB cases dealt with. While in a very small number of cases an ASBO is used early in the process, mostly they come after a series of other interventions have been tried and failed. Figure 1 overleaf illustrates a typical process through which ASB is dealt with. This, however, does not mean that there is currently sufficient support provided to individuals subject to the orders that are granted.
3. Despite the media attention, the main focus of ASBOs is not on young people. In Scotland, only one-fifth of ASBOs have been given to people under the age of 18. Far more have been issued to young people in England and Wales and this is perhaps what has led to them being referred to as 'badges of honour'. With only 14 granted for 12-15 year olds since 2004 (up to March 2008), it is difficult to see how the 'badge of honour' critique is applicable in Scotland. As one ASB Coordinator interviewed indicated, the focus should not be on the bravado of the perpetrator, but on whether it changed their behaviour and led to a positive outcome for the victim of the behaviour.
4. The success of ASBOs should not be judged with reference to the number of times orders are granted or on the proportion of orders that are breached. Given the range of earlier interventions that can and should in most cases be used before an ASBO is considered, low usage of ASBOs is likely to be a sign that ASB strategies, built around a balanced PIER* approach are working effectively. While many ASBOs will be breached, this does not mean they have not been successful as the seriousness or frequency of the offending may have reduced significantly as a result of the order.
Figure 1: Overview of Use of ASB Measures
5. Any assessment of the effectiveness of ASBOs should consider the extent to which the threat of an ASBO deters perpetrators from further offending, the extent to which the multi-agency process of considering a possible ASBO helps mobilise further support and alternative solutions, and the extent to which, once used, ASBOs bring relief to the local community.
6. In consultation with various bodies, including the Antisocial Behaviour Lawyers' Forum ( ASBLF), the Antisocial Behaviour Officers' Forum ( ASBOF) and the Scottish Community Safety Network ( SCSN), together with key officers from local authorities and police forces, some issues with the ASBO process were identified as being problematic and requiring of further guidance. These included the need to:
- clarify the standard of proof to be applied by the court in when considering an ASBO application;
- allow variations of interim and full ASBOs without the need to require a new application;
- allow the service of ASBOs to be carried out by the Pursuer in the action, rather than by the Sheriff Clerk;
- clarify whether personal service is needed;
- clarify, in light of the apparent hiatus between an interim ASBO and the granting of a full ASBO, whether or not the original interim order remains in force until the full order is served;
- consider whether Interim to ASBOs may need to have a finite lifespan;
- clarify the law in relation ASBOs which cross local authority boundaries; and
- provide guidance regarding the enforcement of ASBOs and the prosecution of breaches of ASBOs.
National Action
7. The Scottish Government is keen to address these issues and proposes to do so by issuing further guidance and by amending the 2004 Act where necessary. As indicated in the National Actions in the Prevention chapter (chapter 3; see also Annex D), we will consult on these proposals before the end of 2009. An implementation plan will be published in summer 2009 and this will set out in more detail the exact nature of the proposals for changes to the legislation and the revision or provision of guidance.
8. The Scottish Government believes that while ASBOs can be a useful tool for tackling ASB, they cannot alone deliver long-term solutions for communities. It is only by providing support and education that we will be able to address the underlying causes of ASB and prevent it from happening in the first place or from escalating to serious levels.
9. A major flaw with ASBOs to date is that, despite original intentions, they are in themselves purely focused on prohibition, and support is not required to accompany them. The Scottish Government wants to ensure enforcement is accompanied by support where appropriate and, as also set out in the National Actions in chapter 3, we will consult on the best means of ensuring such support is provided when necessary. That means that we will encourage local agencies, through statute or guidance, to indicate at the time of applying for an ASBO what support they have already provided and/or what support they will provide alongside the order.
Criminal Antisocial Behaviour Orders ( CrASBOs)
10. The power of the court to make an ASBO as either the whole or part of a criminal sentence is contained within section 118 of the 2004 Act. This type of order has become commonly known as a " CrASBO". The court can make this type of order against someone of at least 12 years old who has committed an offence whilst engaging in ASB and the court is satisfied that the making of an order is necessary to protect other persons from further offending.
11. Research has indicated that these types of orders are viewed as being a useful and flexible form of sentence. However, the usage of them varies greatly throughout Scotland. Orders of this type appear to have been mainly granted within the Borders area and in Peterhead.
12. In other areas, where their use would have been expected, little or no use is made of these orders. The court appears to be reluctant to grant these orders as part of a sentence as there is often insufficient information placed before the court to allow it to draft appropriate and proportionate prohibitions.
13. Where greater usage is made of CrASBOs, there appears to be good partnership working between the local Procurator Fiscal, the police and the local authority ASB which is often in question is repeat offending - either in type or locus, or both.
14. The court will not necessarily be privy to the kind of information referred to above, nor will it be aware of the wider community issues which often arise due to the behaviour of the offender. Research has indicated that it would be helpful for the court to have wider access to this information.
15. As outlined in the National Actions within the Integration chapter (chapter 4) of this Framework, the Scottish Government, in conjunction with the Crown Office and Procurator Fiscal Service ( COPFS) and other partners, will publish guidance clarifying the procedure to be used. This will aid the drafting and inform the granting of these orders. The guidance will be informed by the good practice used within the Scottish Borders local authority area.