This was the first major piece of criminal justice legislation by the incoming labour government. On a positive note the l998 Act [S 81(1)] introduced the Sentencing Advisory Panel comprising inter alia distinguished academics such as Professors Wasik and Ashworth. Their remit is to provide expert guidance to the Court of Appeal and the Home Secretary on sentencing guidelines. S. 1 introduced the Anti-social Behaviour Order which can be made against anyone over the age of 10 years for causing or being likely to cause harassment, alarm or distress.
Places an intolerable burden on Local Authorities and the police to seek these Orders having duly consulted each other first. There appears to be a civil burden of proof rather than a criminal one with the alleged victim or victims not even having to give evidence, but if there is found to be any breach a Magistrates' Court may imprison the 'offender' for up to six months. In fact the police and local authorities seem very loathe to use this new power.
The government have admitted that only 140 have been made in the two years since the provision came into force and the Conservative opposition have pointed out that a 'Protocol' advising the Police service as to using the Orders was only issued in June this year. One of the reasons may be that the Police or local authorities could be in breach of the Human Rights Act l998 – Article 6 European Convention on Human Rights provides the right to a fair trial and it does not seem to be fair that someone can have such an order made against them without proper evidence that can lead to imprisonment.
No doubt they do not have the resources anyway which would involve surveillance and evidence gathering in problem areas. From the writer's conversations with police officers recently applying this provision does not even seem to occur to them. Clearly they can be forgiven for failing to keep pace with the remorseless changes when they are so undermanned. The government have not addressed the issue of training they just expect police, local authorities and lay magistrates to implement complex legislation which is clearly unrealistic.
In l994 Michael Howard refused to specifically deal with racist violence in the Criminal Justice and Public Order Act despite the vicious killing of Stephen Lawrence by five white youths in l993. This seems even more deplorable when considering the importance he clearly attached to protecting landowners from hippies and hunt saboteurs. To their credit the current government have dealt with this serious issue by increasing the sentences for assault under the Offences Against the Person Act 1861 [now S.
Powers of the Criminal Courts (Sentencing) Act 2000] where there is clear evidence of racial aggravation by two years and for common assault the penalty is increased from 6 months to 2 years imprisonment. Other enactments have also had the maximum sentences increased if racial aggravation is present – The Criminal Damage Act l971, Public Order Act l986 and Protection from Harassment Act l997 . In addition the Sentencing Advisory Panel have produced detailed guidelines in relation to such offences.
Youth Justice is still the major plank of the government's legislative programme with debates currently taking place in the House. Despite a vast range of measures in both the Crime and Disorder Act l998, Youth Justice and Criminal Evidence Act l999 and consolidation in the Powers of Criminal Courts (Sentencing) Act 2000 clearly they have not finished yet with further measures and amendments being proposed in the Criminal Justice and Court Services Bill.
Before giving the Police time to catch up with the Anti-Social Behaviour Order they are trying to give them more teeth by providing for whole areas to be subject to night-time curfews in relation to children. If this rather drastic measure comes into force parents had better beware – if they do not get them back before 9 p. m. after the swimming trip or whatever they could be in trouble. Again this is an example of the current government introducing the Human Rights Act l998 but then actively breaching the spirit of fundamental human rights by their own policies which in some respects are even more right wing than the conservatives.
In the minutes of Standing Committee G concerning the Criminal Justice and Court Services Bill the Home Office Minister Paul Boateng when asked by the conservative Mr Hawkins whether he has any concern that under the proposals 18-21 year olds will serve their custodial sentence in an adult prison promptly responded 'no I do not' subject of course to much qualification of this remark, but this is surely a drastic and retrograde step aimed at 'streamlining the prison service' which could be taken as an acknowledgement that as a result of government policy inherited from the conservatives the alarming number of persons now in prison is not likely to be reduced even in relation to 18-21 year olds. Sentencing aims have also become more right-wing due to the extreme politicisation of criminal justice with the emphasis now being very much on retribution and deterrence.
This combined with drug treatment and testing orders, parenting orders, child safety orders and community safety orders etc. etc. will clearly involve major state intervention with a punitive desire rather than a genuine desire to help families who need it most. The inevitable conclusion has to be drawn that due to the sheer weight and complexity of the legislation however well meaning it may be in some respects the criminal justice system cannot keep pace with the never ending changes aimed primarily at pleasing the electorate and whether even this goal is achieved is a moot point. There must after all be more than 140 instances where an Anti-Social Behaviour Order would be appropriate.