Civitas Blog

The CPS claimed he boy had breached this term of his Asbo when he was apparently caught on a CCTV camera attempting to take a motor scooter from someone’s garden.

In his original trial, the judge dismissed this charge against the boy on the grounds that the term in his Asbo which the CPS claimed he had breached by his alleged behaviour was too vague and general to admit of being enforceable and was therefore void. Although the appeal court judges found the original trial judge not entitled to strike down that paragraph in the boy’s Asbo, they also shared his misgivings about its vagueness, and agreed the boy should not be prosecuted for having allegedly breached it.

In arriving at their verdict, the appeal court judges appeared to have accepted an argument advanced on behalf of the boy by his counsel that the terms of the paragraph in his Asbo for having breached which he was charged ‘were not sufficient to enable him to know what he could or could not do.’

On the strength of Tuesday’s decision, it seems that, to be enforceable in future, Asbo’s will have to spell out in precisely which forms of anti-social conduct those issued with them must not engage. In the past, such specific forms of conduct which past recipients of Asbo’s have been ordered not to engage have included, ‘using the word “grass” anywhere in England or Wales [issued against a 13 year old boy]…, and wearing a single golf glove and congregating in a place of more than three people’ [issued against a 16 year old].

Make of all this what you will, there is one aspect of the appeal court judge’s ruling that is most disturbing. According to the Government’s own definition of the term, ‘anti-social behaviour’ covers any form of behaviour ‘which causes or is likely to cause harassment, alarm, or distress to one or more people who are not in the same household as the perpetrators’. Surely, to be judged competent to be issied with one, any potential recipient of an Asbo must be judged able to understand that they were being issued with it for doing what they did because it caused or was liable to cause harassment, alarm, or distress to persons other than those with whom they live. Unless they are supposed able to understand in such general terms what was wrong with some species of conduct in which they engaged in the past, how can they be reasonably expected to understand why they should refrain from engaging in any such a form of conduct in future?

This being so, how could the fifteen year old boy in the case under discussion be thought to have been unable to appreciate that the general terms of his Asbo that required him to refrain from anti-social behaviour applied to his taking away a motor scooter belonging to someone else and riding it, when under-age?

It becomes especially difficult to see how he might not be thought to have been able to appreciate this, given that, in his original trial, the boy pleaded guilty to the separate charge, presumably arising from the same incident, of having interfered with a motor vehicle, and for having been convicted of which he received a 12-month supervision order and a month’s curfew from 9pm to 7am.

By pleading guilty to this charge, surely the boy in effect had admitted -- and, by his accepting his plea, the court had implicitly recognised -- that, at the time of the incident which led to his trial, he knew his taking away the motor-scooter to be not only unlawful and as such something he was supposed not to do, but also anti-social and as such prohibited under the terms of his Asbo?

You might wonder why it should matter, given that he was punished for attempting to take away the scooter. But it does. Breach of an Asbo carries a maximum custodial penalty of five years, considerably more severe than the penalty he received for the offence to which he pleaded guilty. Had he been found guilty of having breached his Asbo, he stood to suffer a far greater penalty than he was liable to, for being convicted of all he pleaded guilty to. Was he advised to resist that greater charge because of risk of that greater penalty?

Beyond the specifics of this particular case, there is a more general issue it raises. If to be binding, in future, Asbo’s must spell out in precise terms from which forms of conduct their recipients must refrain, how are they ever to be expected to have to form, from any Asbo’s they might receive, any abstract general idea of which sorts of conduct they must avoid?

If the purpose of Asbo’s is to stamp out anti-social behaviour, how can they achieve that purpose if recipients of them are never expected to have to figure out what is expected of them in their dealings with others? Such knowledge must necessarily go beyond any specifics to the general idea that they are not to do anything that they know would cause or be liable to cause harassment, distress or alarm to others.

It might be that a general stipulation in Asbos that their recipients refrain from anti-social behaviour will never be enough to enable them to know all that they must avoid doing to escape risk of prosecution for breaching the terms of one. It does not follow that there are not some things that the recipients of any Asbo that includes such a general provision cannot reasonably be thought to know that they must refrain from engaging in as a result of being so instructed. As such, there remains some point and value in the inclusion of such general terms in Asbos. if there is any point or value in Asbos at all.

Irrespective of whether or not Asbo’s are a good thing and should stay, for as long as they remain, there seems no valid reason why their terms should not on occasion be made as general as those that the appeal court judges decided were too general and unspecific to warrant holding anyone to account for having breached.