Perhaps the best way of judging the success of the ASBO is to look at its intentions, its objectives and the ideology behind it and to review the extent to which this is being reflected in the application of the ASBO. Firstly, what is the ASBO dealing with? The concept of antisocial behaviour as statutorily defined has been discussed above, but, in terms of criminology, what is it the ASBO has to contend with?
The element of society is key: antisocial behaviour by dictionary definition may be more helpful – behaviour that is opposed or harmful to society, which can perhaps best be described as deviance from typical or acceptable social behaviour. In this light, it is possible to adopt a functionalist approach, which looks at crime and deviance as a part of society, not something beyond or outside of it. A basic argument of this is that there is nothing abnormal about deviance, it is necessary to establish and sustain morality, and in doing so delineates moral boundaries.
Emile Durkheim purported the idea that deviance actually promotes social unity through people's response to it6, typically with 'collective outrage'7, which has more recently been expressed through the media. This idea, though originating in the 19th Century, can be seen at work today. The problem of antisocial behaviour remains a contentious topic, particularly in the newspapers, where ASBOs are often criticised as being an insufficient measure.
Looking at the Birmingham example outlined above, a newspaper sub-headline stated "Teenage thugs who brought terror to a street are let off with an Asbo"8 and contained quotes from street residents, the police and a politician berating the behaviour, with the article itself driving the point that the ASBO is an insufficient punishment (in cases of this severity). This exemplifies the desire to galvanise people into formulating the same anti-ASBO opinion, and at the very least will stir emotions regarding the antisocial behaviour concerned.
However, in following Durkheim's theory, "we will always have to live with deviance because it is bound up with the very conditions of social order". So in this light the ASBO can only be seen as a means of controlling the level of antisocial behaviour, not a means of eradicating it. I do not believe this functionalist approach can be wholeheartedly applied to the ASBO, nor can it truly be said that this was the ideology behind it, as in my opinion the ASBO has more functions and a wider facility than simply looking to deal with antisocial behaviour as and when it occurs by requiring offenders to stop what they are doing.
This is the obvious primary aim of the ASBO, but in addition it has two other significant dimensions: to 'name and shame' the offender and to deter others from behaving in a similar way. Arguably the former is an essential component of achieving the latter. The shaming of an offender is an integral part of informal sanctions in checking crime9, and in the case of an ASBO may come in the form of the publicising of the Order in the region in which the offender is based and the offences have been committed.
An ASBO can be publicised without reporting restrictions10, which enables the victims of the antisocial behaviour to see that action is being taken as well as encouraging the community to assist the police in enforcing the ASBO by noting its conditions and reporting any subsequent breach. The side effect of the publicising of the Order is that it becomes common knowledge that the offender has been issued with an ASBO – i. e. 'naming and shaming', which may even lead as far as national newspapers.
A British Government Social Survey revealed that whilst only ten per cent of youths ranked 'the punishment I might get' as the most important consequence of arrest, fifty-five per cent said either 'what my family' or 'my girlfriend' would think about it, with a further twelve per cent selecting 'the publicity or shame of having to appear in court'11. This idea is proposed by John Braithwaite, who argues that whilst punishment erects barriers between the offender and punisher by creating a relationship of power assertion and injury, whereas shaming produces a greater 'interconnectedness'12.
This builds on the theories of Tittle, who argued that "the extent [to which] individuals are deterred from deviance by fear, the fear that is relevant is most likely to be that their deviance will evoke some respect or status loss among acquaintances or in the community as a whole"13. So in light of this theory, I believe the ASBO can be interpreted slightly differently, or rather it has a further aspect to its ideology.
It is preventative in that it aims to stop repeat offenders by laying down what they cannot do, but it also aims to both stop repeat offenders and deter would-be offenders by saying if you are found guilty of the offence(s) and an ASBO is issued upon you, everyone will know about it – building on this idea that people fear the publicity and shame of courts and publicised Orders, perhaps in many cases more than punishment such as a short term of imprisonment or fine.
Ultimately of course if this publicity does not act as a deterrent, repeat offenders will run the risk of criminal proceedings anyway – so the presence of two very different deterrents within the ASBO should act as some sort of double safeguard. The idea of deterrence, whether through the terms of the Order, the eventual threat of criminal proceedings or in the form of the 'naming and shaming' concept discussed above, is clearly prominent in the ideology behind the ASBO, and demonstrates elements of the classical school of thought in criminology.
The classical approach aimed to develop a rational and fair system for organising punishments and control, with less of a focus on the offender per se and more of a desire to establish a more just social order. This included a move away from capital punishment (the theory dates back to the 18th Century) and a desire to apply punishments in a now recognised two-fold manner: obviously to punish, but also to deter.
The concept of punishment was central to the development of the classic theory, and with it the idea of deterrence, and its origins lay in the work of Cesare Beccaria14. Importantly, it was felt that punishments would only deter if they were proportional to the crime, meaning that the severity of the punishment should correspond to the severity of the harm done by the crime and that the type of punishment resembles the crime.
It was key that punishment be "public, prompt, necessary, the least possible in the given circumstances, proportionate to the crimes and dictated by the laws". Taking this a step further, the utilitarian philosopher Jeremy Bentham argued of the need for the "greatest happiness of the greatest number" which would be achieved by administering punishments proportionate to the damage done to the public interest. These concepts are extractable when looking at the ideology of the ASBO, but they have arguably been slightly misshaped along the way.
There is a clear desire to improve the social order and to do so by administering a punishment that considers the circumstances and aims to be as lenient as is realistically possible: there is an arguable shift of focus from punishment to rehabilitation, or at the very least prevention. Elements of retribution or excessive punishment are not present. The issuing of an ASBO aims to appease the whole community, or to correspond with Bentham's ideas the 'greatest number' by demonstrating that action is being taken and that the behaviour of the offender is being labelled as wrong – effectively further similar behaviour becomes a criminal offence.
Unfortunately, as with so many ideologies and concepts, when put into practice the success rate is not as high as one would hope. A difficulty here lies in the sheer range of behaviour that the ASBO covers and the problem of applying any criminological theory to such a diversity will prove fruitless – the offender's mindset in being excessively noisy will be different to that of the drug dealer or the prostitute.
Their circumstances are different, and as such their reasons or intentions will of course not follow any consistent pattern. Any study would have to take each category of antisocial behaviour in isolation to establish any true success rate. It is worth noting however that the ASBO is largely applied to youths, and whilst statistics remain difficult to obtain to the contemporary nature of this legislation, 74 per cent of the ASBOs granted between 1st April 1999 and September 2001 were on those aged 21 years and under.
The British Crime Survey of 2000 reported that the most commonly cited antisocial behaviour was young people being rude or abusive (cited by 20% of respondents), and more recently the 2003 Crime and Justice Survey commented that 14- to 16-year olds were more likely to commit antisocial behaviour than other age groups, with two-fifths of them reporting at least one act of antisocial behaviour in the previous year.
In light of this I believe an important determining factor of the form that the prevention of antisocial behaviour takes comes to light, that is consideration has been given to the fact that 10- to 21-year olds are a 'target group' of the legislation, and to punish them criminally will lead to more problems than the civil measure that has been adopted. The punishing of young offenders through institutionalisation and criminal proceedings in general carries with it a fear of pushing the individual into a life of crime that perhaps he or she would not otherwise have continued in.
The idea of labelling them as a criminal, it is perceived, will only encourage them to live up to it. Minor offences, perhaps abusive language and behaviour, can fall into the category of 'primary deviance', as proposed by Edwin Lemert, or a 'passing episode'. Labelling the offender, making a 'big deal' of his indiscretions, may push him further into this behaviour, initiating 'secondary deviance' – a result of the stigma and punishment making the deviance "become central facts of existence for those experiencing them, altering psychic structure …
and self regarding attitudes". With this in mind, it is clear that the ASBO offers a favourable alternative to imprisonment which is so much more synonymous with the concept of 'the criminal'. The ASBO offers the offender an opportunity to reform: to stop what he or she is doing and conform to acceptable social behaviour. Is this opportunity taken up by the offender? In other words, is the ASBO having a positive effect in reducing the level of behaviour it set out to tackle?
As different local authorities will value the ASBO to varying extents, it is again difficult to judge the impact that the ASBO is having on communities, and methodologies of review remain far from universal. An important statistic is that a Home Office Review of ASBOs, prior to the Police Reform Act of 2002, found that 36 per cent of the Orders were breached within just nine months of being granted (in some instances up to five times). In 2000, over half of those sentenced in court for the breach of their ASBO received a custodial sentence.
These figures would suggest that whilst some progress is being made, it remains slow. Perhaps the best indicator of this is that it remains such a popular topic for the media and politicians. It is important to remember that the ASBO remains a fairly new instrument, and its results cannot be expected to be instantaneous. I would suggest that a primary objective of the ASBO is to appease the community, to make its members feel safe, to assure them that the threat which was once posed is no longer present.
There is a constant pressure on any Government to illustrate that 'something is being done'. This, I believe, is indeed proving to be a result of the ASBO, with Brighton & Hove City Council reporting the benefits of a reduction in the behaviour targeted and increased feelings of safety in the community and of empowerment by the community to report and deal with their anti-social behaviour problems. A Government website offers case studies, which report "significant improvements in the situation" and "witnesses [reporting] feeling safer".
Of course only positive outcomes are likely to be reported on an official website, but it does offer an insight into what the ASBO is in place to achieve, and a glimpse at what it is actually achieving. In conclusion, I believe that the ASBO is proving to be a valuable tool in some the circumstances for which it is designed, but as with any area of law there will be times when it is applied too leniently or too rigidly, whether that truly be the case or the opinion of the media or the injured party.
It aims to nip certain behaviour in the bud, rather than condemn the individual for acts deemed not to be worthy of criminal status and punish them disproportionately. Ultimately, the ASBO is in no way infringing on the criminal law – if the police feel that the offender is in fact committing a criminal offence they surely will charge them of it. The ASBO provides a valuable option and offers some discretion to the criminal justice process.
However, to truly tackle antisocial behaviour, a rehabilitating element to the ASBO may be more indicative of a preventative approach, particularly in the case of young offenders. The length of the ASBO seems somewhat intimidating, and perhaps if there was some further discretion which enabled some compromise should the offender demonstrate a successful adoption of acceptable social behaviour, this would further encourage the offender to rid him or herself of the behaviour that has got them into this situation.
Finally it is important to note that as with any legislative measure, there is a degree of political influence. Whilst I have outlined the ideological elements behind the ASBO above, it is imperative to remember that as such a popular topic of discussion and concern amongst the general public, the issue of antisocial behaviour becomes one which is used by political parties to try to gain an advantage over their rivals. The importance of this issue to the country can perhaps best be identified by the fact that both major parties recognise a need for something to be done.
Unfortunately, it is the political debate that has perhaps exposed the lack of true ideological concerns behind the ASBO, revealing it as a means of punishment as opposed to anything else. The Home Secretary (at the time) David Blunkett stated this quite clearly, "they [the 'specialist prosecutors'] will lead the response of the criminal justice system … with a firm resolve to ensure offenders receive the punishments they deserve"15 and this desire was echoed recently following the afore-mentioned Birmingham ASBO case by the Conservative Party's vice-chairman, "this group of yobs deserve serious punishment …
this is happening all across Britain … society is getting out of control"16. I believe that the ASBO does exhibit some of the ideologies expressed above, but perhaps most of all a keen desire to deter and to prevent antisocial behaviour being a precursor to criminal behaviour, as the report on the 2003 Crime and Justice Survey identifies, "given the link found between antisocial behaviour and other offences, tackling the former should help prevent young people progressing to more serious offending".
As part of a wider antisocial behaviour policy, the ASBO is an effective preventative measure, but arguably the work is to be done in assessing the root causes of the particularly serious aspects the ASBO covers (drug abuse, prostitution, racial abuse) and dealing with them (education, upbringing, poverty). It may then be possible to truly nip antisocial behaviour in the bud, just as the ASBO attempts to do with crime.
A Guide to the Anti-Social Behaviour Orders and Acceptable Behaviour Contracts The Home Office (2002) Blackstone's Guide to the Anti-Social Behaviour Act 2003