Consider whether the Criminal law and the procedures and principles which underpin it, are being undermined by new procedures aimed at anti-social behaviour? Anti-Social Behaviour Order's were introduced by the government in the 1998 Crime and Disorder Act1. Contrary to the vast majority, I believe that the procedures and principles which underpin our Criminal law are not at all undermined by new procedures aimed at anti-social behaviour. In fact I vehemently argue that they actively support the current Criminal justice system, as well as being a proven method of reducing crime and establishing safer communities.
The function of Criminal law was established around 800 years ago and thus operates the same way as our common law system, designed to encompass the constant change in society and constantly develop. It is implemented to set the standard of behaviour in society, to educate and persuade what standard of behaviour is acceptable, to deter unlawful behaviour by threat of punishment and to punish those who commit crime (those who are not deterred). Each one of the functions will be discussed in the context of the Anti-Social Behaviour Orders and illustrate that in fact both procedures and principles complement each other as opposed to undermining.
Set Standards of Behaviour Establishing effective law and order in society has been a burden of many a government going back to the 12th century. Garland in my view comes close to outlining the criminal procedures and principles combining the roles of government, punishment and education in modern society as: "established frameworks for the satisfaction of needs, the resolution of disputes and the regulation of life in a particular social sphere. Having developed as a means of managing tensions, arbitrating
between conflicting forces, and getting certain necessary things done, social institutions typically contain within themselves traces of the contradictions and pluralities of interest which they seek to regulate2" ASBO sets the acceptable standard of behaviour in society. The wording used by the parliament in the statute as seen in 'ref 1' clearly defines the boundaries that need to be crossed before ASBO is issued "Acting in the manner that caused or was likely to cause harassment".
The new procedures aimed at anti-social behaviour are purely a stepping stone in the seemingly endless and changing battle against crime. This was nearly a century ago, four generations apart, but exactly the same message and the same problem. Parents were held as being responsible for administering the 'educative and the persuasive' part as well as the 'threat of punishment' of Criminal Law. This was a totally impractical approach and society had endured it all these years until 1998 when something was implemented.
I put it to you that if reported crime figures were decreasing, the cost of crime prevention was falling, communities were deemed to be getting 'safer' there would be absolutely no need to introduce ASBO's or in fact any of the procedures introduced in the Criminal Justice Act 1998 or 2003. The fact is all the figures reported were going the opposite way so maybe it's time that we started addressing the problem the opposite way too. ASBO was meant for exactly that, and far from undermining the Criminal Law.
The responsibility became shared between parents and the local authorities. In tackling this issue by establishing strict procedures and guidelines which are in place for the whole community, the government is seen as setting down a sociological trend for the long term. In introducing this new approach, taking a bold stance and showing willingness to adapt the government is simply using the Criminal law in a wider context but keeping the same procedures and principles. To deter by threat of punishment
One of the features that distinguish Criminal law and all other law are the sanctions that are employed to support the law, in introducing the ASBO and the subsequent procedures the government has clearly maintained the same principles as Criminal law to ensure results. This was partly due to the findings of the Law Commission, Audit Commission and the Woolf report on existing measures. These established weaknesses with the current procedure as being too slow, too expensive and too unresponsive. The child as was 'passive' while being taken through the prolonged complicated procedure.
The task of the local authority in obtaining an ASBO was facilitated by the courts following three decisions. Firstly, in R v Manchester Crown Court, ex parte McCann and Others, the Court of Appeal confirmed that proceedings to obtain such an order were civil and, as such, not subject to the stricter criminal rules of evidence; a balance of probabilities test would be applied upon application. The rationale is clear – the overriding purpose of this Act would be defeated if strict criminal rules were applicable, but deterrence and retribution are preserved by the threat and use of punishment.
Whereas intimidation of victims might previously have been an obstacle to witness testimony, this should no longer be the case. Further clarification has been provided by Clingham v Kensington and Chelsea London Borough Council. Here it was held that hearsay evidence comprising statements made by persons not available for cross-examination could also be included as evidence in any application. This overcame the Audit Commission findings of victims who were unwilling to give evidence for fear of reparations, and that burden of proof beyond reasonable doubt leads to reduced effectiveness.
"……. to ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probative ness is quite capable of satisfying the requirements of section 1(1)4". In essence, therefore, we have a civil legislation providing criminal sanctions upon breach, with penalties ranging from six months imprisonment or a fine upon summary conviction to a five year sentence or a fine for conviction on indictment.
In my view the process of incorporating civil procedures with criminal principles makes ASBO a formidable force in preserving the Criminal Law and its procedures and principles. The fact that the government was willing to adapt and implement this revolutionary principle is another example that contrary to undermining the Criminal law, ASBO's and the new procedures are in fact working in tandem for the same cause. To Punish Those Who Commit Crime (Those who are not Deterred)
"Victims of crime are not different, not cursed or gifted with particular qualities that mark them out in advance. They are any one of us. 5" ASBO can be issued for up to 2 years and violation can lead to up to 5 years in prison. However the success of ASBO's cannot be judged on the figures and statistics of how many may have been issued, when, where, why, or how many have been broken or enforced. We have to look at the bigger picture.
The argument put forward by some is that because there has been minimal ASBO's issued (466) in last 3 years as opposed to governments predicted 5000 a year6, they are ineffective is unreasonable. We must remember one of the principles of criminal justice is only to use punishment when the threat of punishment fails, in ASBO's we have exactly that. It will always be a fact that a lot higher proportion of crimes would have been prevented before ASBO's have had to be used because criminals are aware of the threat they face.