The Magistrate's Blog (2005-2012)

This blog has migrated to www.magistratesblog.blogspot.co.uk This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

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Location: Near London, United Kingdom

The blog is written by a retired JP, with over 30 years' experience on the Bench.

Monday, January 31, 2005

ASBO - Ex Westminster Semper Aliquid Novi

The Anti-Social Behaviour Order (ASBO) is one of the new weapons in the armoury of those trying to keep the unruly citizenry under control. In essence it is a way of aggregating a lot of low-level offences and then ordering the offender to stop doing them. The Orders had a slow start, but their numbers are now climbing rapidly. The court may only order something not to be done, so there is none of the nonsense that you see from grandstanding judges in some countries where they sometimes order all kinds of bizarre add-ons to a sentence in order to humiliate the offender, and to please the local press. The ASBO may be applied for by the prosecution, by the local authority, or by the court of its own motion following conviction.

At best, the ASBO is a useful tool, and a good example is a case I heard last year. A young man threatened a neighbour with a wooden club, and during the trial it became apparent that there was a history of some householders in that area being threatened and assaulted. There was a significant racist undercurrent (a high proportion of people in that neighbourhood are from ethnic minorities).

We convicted and sentenced the defendant, and awarded compensation to the victim who had suffered a serious fright, but no injuries. We then decided (much to the surprise of the defendant as well as his lawyer) to make an ASBO. We checked the law with our legal adviser, and, after legal argument, made an ASBO for two years forbidding the offender from harassing his victim and from going within half a mile of the place where it all happened. We felt that went some way to protecting and reassuring the victim.

So far so good. Unfortunately, some Police and CPS people are trying to scatter ASBOs like confetti and we have to be careful to examine their applications. If someone has been a vandal in my town, but has never previously been within thirty miles of it, why should we make an order banning him from the town? There is no established pattern of behaviour, and no evidence nor even suspicion that he will come back.

The real sting in the tail is when an ASBO is breached. If you have committed a lot of petty pain-in-the-arse type of offences (and I do not minimise the effect on victims) none of which is worth more than a low-level sentence in the range of a fine or a Conditional Discharge, an ASBO breach pushes you into the Either-Way band where you might be sent to the Crown Court, which can send you to prison for several years.
We have already had to put our foot down when the CPS asked us to send a serial nuisance to the Crown Court, when the worst feature of her breach was telling a policeman to fuck off (albeit loudly and often). If we had indeed sent her upstairs, she could have got a year or more for a string of offences that were individually petty, but collectively a nuisance at worst. So we refused.

An ASBO that works is great. An ASBO that goes wrong risks pushing petty, disturbed offenders further up the scale of punishment than they deserve. It makes one think very hard indeed, and on my patch ASBOs will have to be argued for and fully justified before we will grant them.