The British government introduced ASBOs by the Crime and Disorder Act 1998. In the UK, a CRASBO is a "criminally related" ASBO. One local authority has published photos of those given ASBOs on an Internet site. Anti-social behaviour includes a range of problems including noisy neighbours, abandoned cars, vandalism and intimidating groups.
ASBOs were first introduced in England, Scotland and Wales by the Crime and Disorder Act 1998. Later legislation has strengthened its application: in England and Wales this has largely been via the Anti-Social Behaviour Act 2003, in Northern Ireland through an Order-in-Council and in Scotland with the Antisocial Behaviour etc. (Scotland) Act 2004. Scotland, however, has an existing tribunal charged with dealing with children and young persons who offend, the Children's Hearings System.
The press release concluded by remarking:
In the past year around 100,000 cases of anti social behaviour have been dealt with. 2,633 ASBOs and 418 dispersal orders have been issued in the same period.
On 25 October 2005, Transport for London announced its intent to apply for a new law giving them the authority to issue orders against repeat fare dodgers, and increased fines. The first ever ASBO was given to offender Kat Richards for repeated drunk and disorderly behaviour. As of 31 March 2004, 2455 ASBOs had been issued in England and Wales. On 30 March 2006, the Home Office announced that 7,356 anti-social behaviour orders had been given out since 1999 in England and Wales.
An anti-social behaviour order is an Order of the Court which tells an individual over 10 years old how they must not behave. Under 10s can be given a BASBO. An Order can contain only negative prohibitions. It cannot contain a positive obligation. In order to obtain an ASBO a two-stage test must be satisfied by the applicant authority (see s.1(1) Crime and Disorder Act 1998). The first is that the defendant has committed acts causing or likely to cause harassment, alarm or distress within six months of the date of issue of the summons. The second is that an order is necessary to protect persons from further anti-social behaviour.
The applicant has to prove in a court of law that the individual has 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 himself, Although the proceedings are civil, not criminal, the court must apply in relation to this test the criminal standard of proof. The applicant must prove that the respondent has acted in such a manner beyond all reasonable doubt. A court may order an ASBO only if such an order is 'necessary'. Further, each prohibited act must be an act preparatory to a criminal offence rather than the offence itself. In addition, each prohibition itself must be necessary. It would be inappropriate for a condition to be not to spray graffiti – the final act. It would be more appropriate for the order to prohibit the carrying a paint-spray can in a particular area, marked on a map. This would only be necessary if it could be proved beyond all reasonable doubt that the respondent continually created graffiti with spray-cans in a specific area.
An order must be tailor-made for the individual respondent. It must be relevant to the anti-social behaviour. Orders must not be drafted too widely or imprecisely. Each prohibition must be necessary. The fact that some of the evidence is hearsay without the possibility of cross-examination does not have the automatic result that the proceedings are unfair. The court will have to consider what weight to give to 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.
Hearsay evidence is admissible by Civil Evidence Act 1995. Section 4(1) states that...
"in estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence."
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. In order for an ASBO to be ordered by a court, the applicant must provide beyond all reasonable doubt (the criminal standard of proof) that the respondent has behaved in an anti-social manner. The applicant can 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.
An ASBO is very similar to a civil injunction even though the difference are important. First, the injunction is supposed to protect the world at large, in a given geographical area, rather than an individual. Second, breach of an ASBO is 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 is available for breach of a civil injunction but a court is unlikely to exercise that power. A subject of an anti-social behaviour where it does not follow a criminal conviction has an automatic right of appeal against both the making of the order and its terms to a higher court. There is also the availability of an appeal to the High Court by way of "case stated".
An application for an ASBO is considered by the courts in its civil jurisdiction and is a civil order. However, breach of an ASBO is a criminal offence and conviction may result in up to five years' imprisonment (two for a minor). An ASBO may contain any prohibition even if the same is not an anti-social act, e.g. can include a prohibition in entering an area or speaking to named persons. Cases of orders have included:
Some critics of the ASBO system argue that it criminalises behaviour that is otherwise lawful. Other parties have voiced concerns about the open-ended nature of ASBO penalties – that is, there is little restriction on what a court may impose as the terms of the ASBO, and little restriction on what can be designated as antisocial behaviour. Critics have reported that only around 3% of ASBO applications have been turned down. In July 2007 the Local Government Ombudsman published a report criticising Manchester City Council for serving an ASBO based purely on uncorroborated reports of nuisance by a neighbour, and the Council agreed to pay £2000 in compensation.
A 2005 memorandum submitted by the National Association of Probation Officers (NAPO) asserted that "There is ample evidence of the issuing of ASBOs by the courts being inconsistent and almost a geographical lottery. There is great concern that people are being jailed following the breach of an ASBO where the original offence was itself non-imprisonable. There is also evidence that ASBOs have been used where people have mental health problems where treatment would be more appropriate. In NAPO's view the time is right for a fundamental review of the use and appropriateness of Anti-social Behaviour Orders by the Home Office."
Problems included clinical depression, autism, psychosis, suicidal tendencies, personality disorders, learning disabilities, and ADHD. By contrast the same survey of ASBO teams gave only a 5% reported incidence of mental impairement. This massive difference suggests that most ASBO teams do not take into account mental health problems even though the Home Office safeguards for vulnerable people in the ASBO process require it. Even more remarkable according to the government's own evaluation reports (e.g. Housing Research Summary No. 230; DfCLG) in the 'ASB Intensive Family Support' (Sin Bin) projects introduced to supplement ASBOs, 80% of the families targeted had serious mental health and learning disability problems. 60% were recognised as victims of ASB. Project managers described many families as 'easily scapegoated' in neighbour disputes. HRS 230 calls for a review of ASBO policy and investigation procedures to make the whole process fairer.
The biggest criminal justice-related charity in England and Wales, NACRO, has published two reports, the first claiming that ASBOs were a failure due to being costly and slow to obtain, and the second criticising their use by the courts, saying that they are being used too hastily, before alternative remedies have been tried.