Uses An ASBO can be issued in response to "conduct which caused or was likely to cause harm,
harassment, alarm, or distress, to one or more persons not of the same household as him or herself, and where an ASBO is seen as necessary to protect relevant persons from further anti-social acts by the defendant." In England and Wales, they were issued by
magistrates' courts; they are issued in Scotland by the
sheriff courts and in Northern Ireland by
magistrates' courts. The British government introduced ASBOs through the
Crime and Disorder Act 1998. In the UK, a
CRASBO was a "criminally related" ASBO. One local authority published photos of those given ASBOs on an Internet site. Anti-social behaviour included a range of behaviours, such as: •
abandoning cars •
arson •
begging •
casteism •
dangerous driving •
defecating/
urinating in public •
disturbing the peace •
dogging (exhibitionistic public sex) •
drug dealing/consumption of controlled recreational drugs •
drunken behaviour •
fare evasion •
intimidation •
littering/
fly tipping/
dog fouling •
loitering (with intent) •
noise pollution •
paedophilic activity •
racism and
xenophobia •
rioting •
rudeness •
smoking in public places •
spitting •
stealing/
mugging/
shoplifting •
urban exploration •
vandalism/criminal damage/
graffiti Standard of proof Applications for ASBOs were heard by magistrates sitting in their civil capacity. Although the proceedings were civil, the court had to apply a heightened civil
standard of proof. This standard was virtually indistinguishable from the criminal standard. If the court refused to grant such an application, then the defendant would be unable to cross examine the makers of the hearsay statements. Nevertheless, it was open to them, in accordance with the Civil Evidence Act, to submit that the court should place little or no weight upon material that had not been tested by way of cross examination. Section 4(1) Civil Evidence Act 1995 states that: The High Court has emphasised that the use of the words "if any" shows that some hearsay evidence may be given no weight at all. For an ASBO to be made, the applicant had to prove beyond all reasonable doubt that the respondent had behaved in an anti-social manner. The applicant could rely on hearsay evidence. However, the Court of Appeal has stated that it does not expect a court to find that the criminal standard has been reached by relying solely on hearsay evidence. The Civil Evidence Act 1995 itself makes clear that courts should consider what weight, if any at all, attaches to hearsay material. In
Cleary, the Court of Appeal again restated that courts should consider attaching no weight at all to such material, in accordance with the words of the statute. It is for the court to decide what weight to give the hearsay evidence. The
Court of Appeal has stated that the high standard of proof is difficult to meet if the entirety of the case, or the majority of it, is based upon hearsay evidence. The proper approach would be for a court to consider to what extent the hearsay evidence is, amongst other things, supported by other evidence, the cogency and similarity of supporting instances of hearsay evidence, and the cogency and reliability of contradictory evidence supplied by a defendant. To obtain an ASBO, a two-stage test had to be satisfied by the applicant authority (see: s.1(1) Crime and Disorder Act 1998). The first test was that the defendant had committed acts causing or likely to cause harassment, alarm, or distress within six months of the date of issue of the summons. The second test was that an order was necessary to protect persons from further anti-social behaviour. The applicant had to satisfy the court that the individual had acted in an anti-social manner—that is to say, in a manner that caused, or was likely to cause,
harassment, alarm, or distress to one or more persons not of the same household as themself. A court could order an ASBO only if such an order was "necessary". Further, each prohibited act would usually be an act preparatory to a criminal offence, rather than the offence itself—but not always (see:
Rabess v Commissioner of Police of the Metropolis [2007] EWHC 208 (Admin)). In addition, each prohibition itself had to be necessary. An order had to be tailor-made for the individual defendant. The ASBO represented "a form of personalised criminal law." It had to be relevant to their particular anti-social behaviour. Orders should not have been drafted too widely or imprecisely. Each prohibition had to be necessary. An ASBO was very similar to a civil injunction, even though the differences are important. First: the injunction was supposed to protect the world at large, in a given geographical area, rather than an individual. Second: breach of an ASBO was a criminal offence to be tried in a criminal court, applying the criminal standard of beyond all reasonable doubt. A power of committal to prison was available for breach of a civil injunction, but a court was unlikely to exercise that power. A person subject to an anti-social behaviour order where it did not follow a criminal conviction had an automatic right of appeal against both the making of the order and its terms to a higher court. There was also the availability of an appeal to the High Court by way of "case stated". There was no appeal against the variation of orders, and variation was used to add extra conditions, and to extend the duration of ASBOs. An application for an ASBO was considered by the courts in its civil jurisdiction, and was a civil order. However, breach of an ASBO was a criminal offence, and conviction could result in up to five years' imprisonment (two for a minor). Subsequent legislation compelled magistrates to make a Parenting Order, where a person under the age of 16 breached their ASBO. Other examples: • Abusive behaviour •
Begging •
Flyposting •
Harassment •
Suicide attempts •
Theft •
Vandalism Uncommon ASBOs Unconventional uses of ASBOs, as listed by a report to the
Home Office to illustrate the broad applicability of the civil order, include: • Two teenage boys from east
Manchester forbidden to wear one golf glove, as it was a symbol of membership of a particular gang. • A 13-year-old forbidden to use the word "
grass" as a term of abuse in order to threaten people. • A 15-year-old forbidden to play
football in his street. • A farmer (the first to be given an ASBO) who was instructed to keep his
geese and pigs from damaging his neighbour's property. • An 18-year-old ordered not to congregate with three or more other youths. He entered a local youth club that had a good reputation, and was arrested because there were more than three youths on the premises. He was intending to attend an event there on how to deal with anti-social behaviour. ==Ireland==