ASBOs and young people

This article is intended to assist those practitioners consulted by under 18s facing an antisocial behaviour order (ASBO). Its purpose is not to give you a definitive guide to Part I of the Antisocial Behaviour etc (Scotland) Act 2004; it is more in the way of a synopsis of the provisions, potential avenues for avoiding and defending such an application and the provision of some food for thought in what at first glance may seem a straightforward piece of legislation.

BACKGROUND

The Act introduces a range of statutory provisions regarding antisocial behaviour, criminal justice, child welfare and connected purposes. Part II replaces the relevant provisions of the Crime and Disorder Act 1998. It comes with a range of statutory guidance, much of which focuses on the need to prevent and tackle behaviour which is likely to reach criminality and adversely affects local communities. There is an expectation that local authorities will have in place and develop provisions to meet these community needs. ASBOs do not replace other more appropriate criminal or civil proceedings but can it appears run in tandem.

For young people “the Children’s Hearing system should continue to be the primary forum for dealing with anti-social behaviour or offending behaviour by under 16s. A court based order should only be pursued for a small minority of persistently young people for whom alternative approaches have not been effective in protecting the community" (Guidance on Anti-Social Behaviour Orders ISBN 0-7559-4378-3).

Part I commenced on 28 October 2004.

THE BASICS

•    An ASBO can be granted by a sheriff in relation to a person who is at least 12 years of age (s4).
•    An application can be made by a “relevant authority”, i.e. a local authority (LA) or a registered social landlord (RSL) (s18).
•    Prior notification in writing should be given to the proposed defender of the intention to apply for an order (para 104, SE Guidance to the Act ISBN 0-7559-4378-3).
•    Application is by summary application.
•    A person ("A") engages in antisocial behaviour if A “(a) acts in a manner that causes or is likely to cause alarm or distress; or (b) pursues a course of conduct that causes or is likely to cause alarm or distress to at least one person who is not of the same household as A; and antisocial behaviour shall be construed accordingly.”
•     Conduct includes speech; a course of conduct must involve conduct on at least two occasions (s143).
•    “Child” means a person under the age of 16 years (s18).
•    There has to be anti-social behaviour towards a “relevant person” and the order has to be necessary to protect the relevant person from further antisocial behaviour (s4).
•    Disregarded is any act or conduct which is shown to be reasonable in the circumstances  (s4).
•    “Relevant person”
   – in a LA application is a person within the authority area
   – in a RSL application is a person residing in or likely to be in property provided by the RSL; or a person in or likely to be in the vicinity of such property (s4(13)).
•    In an application against a child the sheriff “shall before determining the application" seek advice from the children’s hearing and the sheriff has to have regard to that advice – re under 18s (s4 and SE Guidance).
•    The order prohibits either indefinitely or for a specified period the person named from doing anything described in the order and the provisions that can be imposed are only those necessary for the purpose of protecting the relevant person(s) from further antisocial behaviour. They can also include provisions in relation to “affected persons” (s4).
•    Where the defender is in court the sheriff has to explain in ordinary language the effect and prohibitions proposed, the consequences of failure to comply, his powers and the rights of appeal (s4(8)).
•    The LA and RSL have to consult before making an application – the LA consults the Chief Constable, other affected LA areas and the Principal Reporter; RSLs consult the Chief Constable, the LA and the Principal Reporter.
•    The LA, RSL and person subject to the order may seek to vary or revoke same –
    –The Sheriff has to seek the Principal Reporter's view if in relation to a child
    –Consultation has to take place (s5)
    –No such application is competent during the appeal process (s6)
•    Interim ASBOs can be granted:
   –A prima facie case has to be made out
   –The view of the Principal reporter shall be taken into account
   –The order has to meet the necessity test
   –See Glasgow Housing Association Ltd v O’Donnell (24/8/2004 SCA website)
•    An order is an appealable interlocutor and the standard appeal provisions apply (s7(8)).
•    Orders are intimated by the sheriff clerk to all parties to the action (s8).
•    The LA has to keep a record of all orders and has authority to disclose these to various agencies (s15).
•    Breach of an ASBO is a criminal offence liable to summary or solemn prosecution –
    –Summary penalties – up to six months' imprisonment or a fine not exceeding the statutory maximum
    –Solemn penalties – imprisonment up to five years and/or a fine
    –Separate offences – for the considerations to be taken into account by the sheriff and preliminary objections, see s 9(4) and (5).

•    There can be arrest without warrant for breach (s11).
•    The sheriff can where an ASBO is granted in relation to a child refer the child to a hearing (s12) and he can also grant a parenting order (ss13 and 103).
•    On a criminal conviction the sheriff can grant an ASBO (s118).
•    Those discharging functions under the Act have to have regard to any guidance issued by the Scottish Executive (s16).
•    There is a presumption that applications and appeals relative to children under 16 will be held in private but the court can direct otherwise (s138).

TYPES OF BEHAVIOUR

The definition in the Act is very broad and is only limited by any one person's imagination. However each LA area’s strategy will contain a definition of what they consider to be antisocial behaviour, which I suspect will largely mirror those suggested by the SE guidance. Until publication of the strategies, for a possible definition and ideas on prevention and intervention tactics that the LA may or may not be adopting see Guidance on Anti-Social Behaviour Strategies (ISBN 0-7559-4377-5).

POTENTIAL DIFFICULTIES FOR THE YOUNG

•    An enhanced disclosure certificate may well disclose an ASBO and preclude them from obtaining certain fields of employment in later life.
•    Breach dealt with either through a hearing or in court and accepted, found established or proved raises Rehabilitation of Offenders Act 1974 issues.
•    SCRO will hold a record of ASBOs granted as part of a criminal conviction.
•    Section 35 of the Housing (Scotland) Act 2001 gives a public sector landlord the power to convert a tenancy to an SSST where the tenant or someone resident with the tenant has an ASBO. The security of the tenancy is then an issue; however supports have to be provided.

TOOLS OF THE TRADE AND FOOD FOR THOUGHT

A good start is to read the O’Donnell case. Apart from the basic defences of denial of the facts, narrating the contra-facts, issues with the extent of the order sought and lack of necessity you may wish to consider some of the following –

•    All alternative approaches have not been exhausted.
Jointly the LA and police in consultation with the reporter and others have to prepare, publish and review a strategy for dealing with antisocial behaviour. This requires to set out an assessment of the extent of antisocial behaviour, the types, and to specify the range and availability of services for under 16s and others designed to deal with the behaviour, its consequences and prevention (s1). The first strategy has to be in place by 31 March 2005. The guidance clearly envisages the use of acceptable behaviour contracts (ABCs), restorative justice (RJ), mediation, youth justice services (YJS), drug and alcohol services (DAS) and the development of other child, family and community services to meet the child’s and community's needs.
  –Have the housing, education, leisure and recreation, environmental departments, YJS, DAS and others provided a service, if so, what and when? Was it sufficient and appropriate? Should other services have been made available? Were any ABCs appropriate, proportional and realistic? Can an ABC be used now?
   –Be inventive. Come up with alternatives to address the issues.
•    Have the persons discharging functions under the Act done so without discrimination e.g. based on sex, race, marital status, disability etc (s140)?
•    Are there criminal or civil proceedings that would or should be more appropriate?
•    If not already on supervision should the child be referred to the reporter based on e.g. lack of care or beyond control grounds?
•    Would the granting of the order sought amount to a breach of the young person's human rights:    
    –Art 3 - inhuman or degrading treatment or punishment
    –Art 8 - respect for private and family life, home and correspondence
    –Art 9 - freedom of thought, conscience and religion
    –Art 10 - freedom of expression
    –Art 11 - freedom of peaceful assembly and association
    –First Protocol, art 1 – right to property
    –First Protocol, art 2 – right to education?
•    Does the behaviour amount to a lifestyle choice by the child or family?
•    Is the behaviour part of a person’s ethnic background or religious beliefs and observance?
•    Would the granting of the order infringe the UN Charter on the rights of the child: does it impinge on
    –Art 3 - best interests of the child
    –Art 5 - parental responsibilities, rights and duties
    –Art 8 - family relations
    –Art 13 - freedom of expression
    –Art 14 - freedom of thought, conscience and religion
    –Art 15 - freedom of peaceful assembly and association
    –Art 16 - privacy, family, home or correspondence?
•    Would the order interfere with the child’s development, education, health needs?
•    What is the appropriate standard of proof? Although a civil process the consequences are criminal. Support for the proceeding being regarded as quasi-criminal is found in the House of Lords case of R (McCann) v Manchester Crown Court [2003] 1 AC 787, where it was decided that the criminal standard applies to the allegation in the writ and the question of necessity is one for the exercise of the sheriff's judgment and evaluation. On the question of the sheriff being satisfied and the question of necessity see the O’Donnell case.
•    Although the guidance suggests that mens rea is not an issue, if the Scottish courts are persuaded to adopt a criminal standard then the lack of intention to cause alarm and distress can reasonably be argued both with regard to sufficiency of evidence and to bolster an argument against the necessity for the order sought.
•    Have the applicants complied with the consultation process prescribed in the Act?
•    Are the applicants able to establish that the effect or likely effect of the behaviour on the relevant person is sufficient to make the behaviour antisocial? Have they pled a relevant case in this respect? It is anticipated that applicants will need professional witnesses to address this.
•    Do the welfare and minimum intervention principles of the Children (Scotland) Act 1995 have any relevance? The initial answer to that on looking at s16 of the Act is probably no, but this does not mean an argument on a welfare basis cannot be advanced as a matter of fact. However, is the application for an ASBO consistent with the LA's duties to a looked-after child in terms of s17 of the 1995 Act? Their paramount concern is clearly stated to be the welfare of the child, with the need for the provision of services, the duty to provide advice and assistance, and consultation with the child and family. They cannot act inconsistently with their duty unless it is for the purpose “of protecting members of the public from serious harm (whether or not physical harm)”. Serious harm and the definition of antisocial behaviour could well be poles apart.

PRESSING NEED

Essentially emergency applications can be made where there is “a pressing need to protect the community” and there can be a shortened induciae.This of itself does not obviate the need to consult, take views, and otherwise act as prescribed in the Act. It remains to be seen whether or not applicants will seek to argue otherwise.

PRACTICAL CONSIDERATIONS

•    Mandates from your client should enable you to obtain information on past interventions etc.
•    A specification may be needed to obtain information held by LAs, RSLs regarding the required consultations.
•    An application under the Freedom of Information Act may well allow you to obtain data held on antisocial behaviour by the LA, RSL etc.
•    Check the ASBO register to see if the complainer or any member of that household, family has an order against them.
•    Seek a direction from the sheriff on whether or not it is appropriate for the complainer to be advised of the making of the order – consider the age of the child, ECHR art 8 etc.
•    Seek an order from the sheriff, if appropriate, that the order remain confidential and is not a public order.

And finally some useful numbers at the Scottish Executive:

ASBOs – 0131 244 4919
Noise Nuisance – 0131 244 0393
Private Housing – 0131 244 7952
Community Justice – 0131 244 5438
Youth Justice – 0131 244 1676

Enjoy the challenge.

Trish Black is a partner in Trish Black Consultancy, Elgin