Legislation Crime and Disorder Act 1998 s 1
Maximum length Until further order (CDA 1998 s 1(7))
Minimum length 2 years (CDA 1998 s 1(7))
Which court can make an order? Magistrates’ Court
These orders are another form of civil behaviour orders or ‘preventative’ orders imposed upon conviction (‘post-conviction ASBO’) or upon complaint (‘stand-alone ASBO’). A third form, the county court ASBO, is outside the scope of this guidance note. Of the three, post-conviction ASBOs are most common. Although a civil order, the criminal standard of proof applies.
The orders specify terms which prohibit the person subject to the order from doing certain things. The orders are targeted at anti-social behaviour such as noise nuisance, and are designed to prevent the commission of acts or offences which would cause ‘harassment, alarm or distress’ to others
ASBOs are preventative in nature, targeted at the behaviour of the person subject to the order. They are available in respect of individuals aged 10 and over where deemed ‘necessary’ to prevent anti-social acts.
Power to order
ASBOs can be applied for only by ‘relevant authorities’, most commonly the police and local authorities.
The power to order is a discretionary one.
Two conditions must be fulfilled:
- The applicant must prove that the individual has acted in an anti-social manner; ‘in a manner that caused of was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself’ (s.1(1)(1)), and
- The order is ‘necessary to protect relevant persons from further anti-social acts’ (s.1(1)(b))
A witness to the behaviour will usually give evidence as to the behaviour that caused harassment, alarm or distress.
Where a stand-alone ASBO is sought against a person under the age of 16, section 40 of the Crime and Disorder Act 2010 (not yet in force) will require a report to be made in respect of the family circumstances of that person.
Some of the behaviour in question must have occurred within six months of the information being laid (in compliance with the time-limits for summary offences, contained within s.127 of the Magistrates Courts Act 1980). However, R (Chief Constable of West Mercia Constabulary) v Boorman (2005) 169 JP 669 confirms that evidence of behaviour being carried out at an earlier date may be admissible as it shows the necessity of the order. Similarly, post-complaint behaviour can be used to evidence that the order is necessary: Birmingham City Council v Dixon  1 WLR 32.
Drafting the order
The Court of appeal has provided guidance as to the terms of an ASBO in P (Shane Tony)  2 Cr App R (S) 343:
- Must be necessary to protect the public
- Terms must be precise and capable of being understood.
- Findings of fact must be recorded
- The order must be explained to the offender
- The exact terms of the order must be stated in open court and the written order reflective of those terms
These five elements were further explored by the Court of Appeal in Boness  1 Cr App R (S) 690.
ASBOs cannot contain prohibitions which are too wide; a term prohibiting the offender from committing any criminal offence is too wide (R(W) v DPP (2005) 169 JP 435). Likewise, a term prohibiting the offender from acting ‘in an anti-social manner’, without further definition or limitation was also considered too wide (DPP v T  1 WLR 290).
CDA 1998 s.1(8) enables offenders to apply to the Magistrates’ Court to have the ASBO varied or discharged.
Appeals can be made to the Crown Court under CDA 1998 s.4(1) and the Magistrates’ Courts Act 1980 s.108(3).
Appeals can be made against the Order itself or the terms contained therein (R v Manchester Crown Court, ex parte Manchester City Council  ACD 53. The appeal is by way of a full re-hearing, and although in the Crown Court, the matter remains civil in nature.
The Crown Court is empowered to make ‘such orders as may be necessary to give effect to its determination of the appeal’ (s.4(2)(a)).
Summary 6 months and/or a fine not exceeding the statutory maximum
Indictment 5 years and/or a fine
Youth court (offenders aged 12 to 17): 2 year Detention and Training Order. If between 12 and 14 years old at the point of conviction, the court must consider the individual to be a ‘persistent offender’ before imposing a DTO.
The court cannot grant a conditional discharge (s.1(11) CDA 1998)
Statutory defence reasonable excuse – considered by the Court of Appeal in Nicholson  1 WLR 2857 – forgetfulness/misunderstanding as to the terms may afford the defendant the defence of reasonable excuse. In the Crown Court such a defence will go before a jury.
The Sentencing Guidelines Council Guideline provides detailed guidance. Click here to view the guideline.