Comment, Comics and the Contrary.
A short while ago I mentioned, in passing, my concern with the legal phenomenon of Anti-Social Behaviour Orders (ASBOs). I’d like, here, to lay out some of the causes of my concern. I have no doubt that, in a certain sense, they ‘work’. But, ‘working’ is not identical to something being ‘just’, nor is a demonstration that a procedure can ‘work’ in itself a guarantee that it will, firstly, continue to do so or, secondly, that it will not be abused.
“Asbos can be served against children over 10 years of age or against adults if they have behaved “in an anti-social manner that caused or was likely to cause harassment, alarm or distress”, and that the order is “necessary to protect persons from further anti-social acts”…
“Most asbos are imposed after an application by a local authority or the police. Asbos are made by magistrates' courts after civil proceedings and may be made on the basis of hearsay evidence.
Breaching an asbo is a criminal offence, carrying a penalty of up to five years' imprisonment, even when the original offence was not an imprisonable one. Around half of all asbos have been served on children and young people, who can be given detention training orders lasting up to two years.” (from ASBO Concern
The problem of a legal phenomenon such as this should be obvious.  An ASBO can be applied for on the basis of behaviour that is not in itself criminal.  The range of behaviour that can be the basis for an ASBO is (deliberately) elastic.  ASBOs are granted after a civil hearing in which hearsay evidence (of non-criminal behaviour) is allowed and the behaviour need not be proven in the sense that we demand in criminal cases.  An ASBO, when granted, transforms non-criminal behaviour (which is all that ever need to ‘proven’ in court at any stage) into an imprisonable offence.
There is a final, general problem that ASBOs present that is a product of all four of these. That is that ASBOs are applied for by the police or local authority and granted by magistrates. In other words, they are entirely at the discretion of the local establishment.
I need not present a list of bizarre or barely amusing ASBOs. That is not, in itself, the point. If we, as a society, decide that such acts as answering the front door in one’s underwear should be criminalised, or if we, as a society, decide that criminal acts should be punished by legally binding orders that prevent to proven offender from performing otherwise legal acts, then these is something that we should argue against (or, indeed, defend). If these were what were decided, and if these were subject to being proven beyond reasonable doubt, then our arguments would be conducted on the basis of which acts we ought to criminalise and in what way we ought to punish such acts. But that is not the argument that should be had over ASBOs, and to join such debates when discussing ASBOs is to both miss the point and to hand victory in the debate to illiberal voices proposing an unjust legal process. These examples are valuable in so much that they highlight the elasticity of the types of behaviour that can be described as being “in an anti-social manner that caused or was likely to cause harassment, alarm or distress”. This can include behaviour that our democracy has explicitly decided is not criminal and/or imprisonable, such as prostitution, attempted suicide or behaviour arising from mental illness. But that the definition of anti-social behaviour is dangerously elastic is plainly obvious, and even if there had been no bizarre or unusual ASBOs, only the most naïve would suggest that this was not only an accident of history. This is the first plank of my opposition to ASBOs, with an associated plank constructed from the fact of the enormously elastic discretion given to judges in determining the content of the order.
But the second, and major, plank of my objection is this: I argue that even in the cases in which the behaviour that is the basis on which an ASBO has been granted is, by general consensus, anti-social to the degree that it should be criminalised, the process by which the ASBO has been granted and by which punishment served is, nevertheless, unjust. The end result of an ASBO can be five years imprisonment. The initial granting of an ASBO can be made on the basis of behaviour that is not criminal. That this behaviour has even occurred need not be proven in any conventional legal sense. After this, all that need be proven is that the normally non-criminal, yet personally criminalised, behaviour has been penalised. This is necessarily problematic, in terms of providing a just legal process.
It would be little improvement if the elasticity of the behaviour that can be ‘defined’ as anti-social were tightened, or if the discretion over the content of the order were narrowed. Demanding this is a side-point – easy to argue and with a ready well of public sympathy to draw upon. But this would still leave what is essentially a legal short-cut to criminalisation open. Many will instinctively argue that ASBOa allow the imprisonment of people who are a serious menace to society. But we would not allow such a legal short cut to imprisonment in even more serious cases. We would not, collectively at least, demand the imprisonment of accused murderers, or rapists, or kidnappers, without first proving the case against them beyond reasonable doubt in court. And we should not allow such a serious punishment as five years imprisonment to be held over people on the basis of unproven non-criminal behaviour, regardless of the hearsay and/or the accusation of the local establishment.
We ought to ‘prove’ cases of criminal behaviour. We ought to criminalise behaviour on the basis of explicit democratic decision making. But this reactionary removal of rights at the very point at which they are most necessary – in court – is dangerous, and is actually a move away from what we understand as ‘rule of law’ (as opposed to an ordered and disciplined society), however appealing it may be.