ASBOS Are A Lazy, Populist Response To A Complex Problem

In the last issue I wrote about the determination of Michael McDowell to introduce Anti-Social Behaviour Orders or ASBOs into the Irish justice system, and how An Taoiseach, Bertie Ahern, supported their introduction with the view that young people needed a bit of a rough time from the Gardaí.

Any discussion of ASBOs has to begin at the beginning, which is with the phenomenon of anti-social behaviour. In some areas it’s very bad. It takes many forms. For anyone encountering bullying, harassment or intimidation life can be dreadful, sometimes just not worth living.
So anti-social behaviour is out there, sometimes in spades. But let’s be clear. Nobody, including those who are resolutely opposed to ASBOs, is denying either its existence or prevalence, nor how upsetting or terrifying it is for victims.
Nor, to the best of my knowledge, are they suggesting that anti-social behaviour shouldn’t be vigorously tackled. The argument is over how this should be done, whether ASBOs are an effective approach and whether any success justifies the risks they bring to civil liberties.
But all political parties favour ASBOs, so why would anyone oppose their introduction? There are five key reasons.
• First, ASBOs threaten civil liberties. This is because they initially make offending behaviour a civil rather than a criminal matter. They can derive from a complaint by another person. If a person breaches an ASBO, however, s/he is guilty of a criminal offence. So, ASBOs criminalise non-criminal behaviour and thereby widen the net of criminality.
It is also a serious concern that, as a result, they lower the age of criminal responsibility – in the UK, children as young as 10 years old have been given an ASBO.
Perhaps the most unpleasant aspect of ASBOs, if the UK experience is anything to go by, has been the degree to which they open up children to exposure in the press. There, because of the civil nature of ASBOs, reporting restrictions are less rigorous than they would be in criminal cases. So the press has gorged itself on naming and shaming…
• Secondly, ASBOs aren’t based on objective or shared criteria for offending. What is anti-social in the Minister’s constituency might be quite acceptable elsewhere. Is swearing in public an anti-social act?
As the leading academic Professor Phil Scraton of Queen’s University puts it, "in definition and in context antisocial behaviour has remained loose, resulting in inconsistent and occasionally bizarre interpretations and applications in the courts."
In one UK case, a girl was ordered, among other things, not to wear a scarf or hood that might obscure her identity. As she left the court she pulled up her hood to guard against the press photographers thereby immediately breaking her ASBO.
• Thirdly, the operation of ASBOs is not even-handed. Indeed, the anti-social behaviour tends to be closely associated with the so-called problems of working class areas. Experience in Ireland is likely to shadow that in the UK. There, ASBOs largely affect young working class males. Insofar as they are used against adults, they tend to target dysfunctional or non-functional families and individuals. It is easy to see how a drift into targeting and scape-goating can occur.
• Fourthly, ASBOs aren’t very effective. We are told that they will be preventive and will keep people out of the courts and prisons. Well, in the UK, one-third of ASBOs were breached and half of those who broke them ended up in custody. As the Cork-based academic Dr. Ursula Kilkelly told the Irish Times, "the number of young people in custody in Britain has increased by 10 per cent since January" – an increase attributed to ASBOs. So much for prevention…
• Fifthly, while politicians point to complaints about anti-social behaviour as a justification for the introduction of ASBOs, critics counter-argue that the reason why the behaviour in question continues is that the Government has not implemented its own Children Act.
Had it done so, they claim, much of the offending behaviour would have been addressed. The Government should also make sure that there’s a meaningful police presence wherever it’s needed. Which, right now, there isn’t.
There’s real substance to this argument. The Children Act was introduced by Michael McDowell’s predecessor as Minister for Justice, John O’Donoghue. Before it was passed the world was combed, literally, for examples of best practice.
Perhaps the most effective approach to anti-social behaviour and youth offending is the restorative justice model, pioneered in New Zealand. This is a structured process, in which the perpetrator must meet and make peace with the victim. Far from being a wishy-washy liberal regime, it’s tough, structured and, while intended to bring about a mutually acceptable conclusion, also uncompromising.
But even though the Children Act was passed four years ago, parts haven’t been put into effect. As for policing, as Pat Rabbitte pointed out recently, only 86 gardaí and eight sergeants are involved in the juvenile liaison scheme, which itself has a very high success rate in its interventions with young people who have been involved in the early stages of criminality.
That’s why, instead of putting its own best practice system in place, the present Government is looking to the lazy, publicly popular ASBO system.
In the UK, Blair’s Labour government promised that ASBOs would be an exceptional measure, not one that targets large numbers of working class children and young people. We are likely to get the same promises here. They’ll prove as inaccurate as those in the UK.
We’ll all lose in the end.