"It's time to move beyond the ASBO, we need a complete change in emphasis, with communities working with the police and other agencies to stop bad behaviour escalating that far." So said the Home Secretary, Theresa May in her recent speech delivered at the Coin Street Community Centre on 28 July of this year, confirming the coalition's intention to "bin" the ASBO regime. Her speech was pre-faced with the sentiment, "There is nowhere, not any single government policy, where we need strong, local community action more than in tackling anti-social behaviour . . . We must turn the system on its head. For 13 years, politicians told us that the government had the answer; that the ASBO was the silver bullet that would cure all society ills. It wasn't. Life is more complex than that."
Listing the perceived failures of the old regime, Mrs May alleged that sanctions were not followed through, ineffective orders were issued, then breached, and fines issued but not enforced. She concluded with "People got away with it and the victims knew it." Whether or not such a determination is based upon sound analysis is plainly a matter of conjecture. However it would appear that the much maligned ASBO is a dead duck. So what is next in the toolbox?
Enter the Gang Related Violence Injunction or GANGBO as it will inevitably become known. The relevant provisions, referred to below, were enacted in April of this year and will come into force on 31 January 2011. The GANGBO originally applied to those gang members aged over 18 but by section 34 of the Crime and Security Act 2010 ("the 2010 Act") its scope has now been extended to those aged 14 and over. Given Mrs. May’s criticism of the ASBO as being 'too complex and bureaucratic, too time consuming and expensive and they too often criminalised young people unnecessarily, acting as a conveyor belt to serious crime and prison’ it may be illuminating to consider, or be it briefly, some of the statutory requirements for obtaining a GANGBO and subsequent enforcement.
By section 34(1) to Part 4 of the Police and Crime Act 2009 "the 2009 Act" a court may grant an injunction if two conditions are met. The first condition is that the court must be satisfied, to the civil standard, that the offender has engaged in, or has encouraged or assisted in, gang-related violence. The second condition being whether the court thinks it is necessary to grant the injunction to prevent gang-related violence and/or to protect victims from gang-related violence.
By 34(5) of the 2009 Act ‘gang-related violence’ means violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that (a) consists of at least three people, (b) uses a name, emblem, colour or has any other characteristic that enables its members to be identified by others as a group, and (c) is associated with a particular area. Practitioners in this field will no doubt envisage considerable evidential difficulties arising.
Section 35(2) of the 2009 Act provides that an injunction may prohibit the offender from: being in a particular place; being with particular persons in a particular place; ever being in charge of a particular species of animal in a particular place (presumably in an attempt to address the prevalent menace of the ‘weapon dogs’); wearing particular clothing in a particular place or even using the internet to facilitate or encourage violence. Breach of a GANGBO could, inter alia, require the offender to report to the police regularly, obey a curfew enforced by an electronic tag or attend anger management courses.
Additionally, offenders may be required to notify their address to particular people, be at a particular place between particular times, present themselves to a particular person at a set place and time and even participate in particular activities. Specifically addressing the sanctions available against offenders aged under 18, by virtue of section 46A of the 2010 Act it is provided that where the court is satisfied, to the criminal standard, that the offender is in breach of any provision of the injunction, the court may make a supervision order or a detention order.
There are some limits to how far orders can go. Section 46A(4) provides that a person cannot be ordered to stay in the same place for more than eight hours in any day. Section 46A(5) stipulates that the prohibitions and requirements included in the injunction must, so far as practicable, avoid any conflict with the offender’s religious beliefs, work or education.
So there we have it then, a new statutory tool already in force, arguably replacing the principle elements of ASBO. Frankly, in my view, it is difficult to envisage a more complex, bureaucratic, time consuming and expensive process of achieving restraint of antisocial behaviour perpetrated by the young and not so young alike. Admittedly deficiencies and difficulties abounded in the operation of the ASBO framework, but notwithstanding such, those of us specialising in this area may soon look back with some affection at its relative simplicity and effectiveness. Given the prohibitions and conditions particular to the GANGBO, one may ponder as to whether the new provisions may be described as rehabilitating and restorative, as envisaged by Mrs. May, rather than criminalising and coercive.
By Brendan Mullee