No go to the ASBO

This is essentially a rewrite from this Jan 2006 piece.

They have to do it. Brown's Ministers, each one more hapless than the last, have to show they are cracking the whip. Thankfully the aggressive rhetoric around ASBOs hasn't been seen for a while - but local papers round the country adore each latest installment of 'pond life watch', legitimised by the official sanction of ASBOs. Because you have to be tough in this dog eat dog world - and if the government doesn't eat its citizens perhaps they will eat it - and we simply cannot have that.

Take the Child Curfews. New Labour did everything they could to appear to be somewhere to the right of Herod on his first born policy - but in the end they were far better at producing press releases than they were at producing any change. Three years later, not a single child curfew is in place, but it did allow Blair to pose as the defender of law and order. Even if he's essentially defending you from the kids.

When Blair said all those years ago that he’d be tough on crime and tough on the causes of crime, he’d come up with a great sound bite. It appealed to an idea of community – it’s not on to duff up old ladies, but equally it’s not on to ignore the social exclusion and problems that led to the duffing up. It turns out though that Blair simply thought that the causes of crime were evil criminals and so set about stuffing the jails full to bursting, leaving many of the social problems that cause crime untouched.

Criminal justice groups criticised the "respect agenda" proposals for being packed with gimmicks and "undermining the natural principles of justice." Blair laid out his big stick and we were all meant to gasp and admire. But Shami Chakrabarti, the director of Liberty, was not impressed when she said; "When forcing people out of their homes is the latest gimmick, it's time to consider what 'Asbomania' is doing to the country. the vulnerable are swept up with the guilty and naming and shaming is rampant. The Prime minister 'batters' the values of British justice and calls it 'respect'."

If we look at how ASBOs have turned out we can see how little this style of proposal has to offer in terms of making communities nicer places to live. But, whilst many of us on the left see at a first glance that the introduction of ID cards, the victimisation of refugees or the new anti-terror legislation are part of a drive by government to give itself new police powers and undermine civil liberties, ASBOs are often opposed in far more cagey terms with caveats about how terrible working class estates are to live on and something must be done about rampaging yobs.

Those who hedge their arguments in this way are accepting one of the great lies that surround ASBOs – that they do something to tackle anti-social behaviour and make the poorest estates somehow easier to live in. Part of this lies in the great game of spin’s rule number one. Everything must have the right name.

When Bush wanted to introduce all sorts of completely unacceptable far right legislation he called it the Patriot Act and everyone who opposed it had to start saying how patriotic they were. They fell at the first fence. When Blair wants to detain Old Age Pensioners who heckle at Labour Party conferences he called it anti-terrorist legislation – it was not introduced as the “Shut up granddad bill”

If the Home Secretary had had an uncharacteristic fit of honesty the day they proposed ASBOs he would have named them the “Isn’t the law inconvenient sometimes – can’t we just do what the hell we like (to poor people)” orders. It would at least be useful for the sake of clarity. The fact is that ASBOs represent a massive undercutting of the legal safeguards that protect us from arbitrary arrest and detention. These were fought for hard and long and should not be given away as lightly as all that.

Everyone has heard of the weird and wonderful ASBOs that have been awarded – the boys who weren’t allowed to wear hats, or the fellow who has to use the back door to his house – but these horrible true life jokes are not the worst of it by a long shot. There are two key ways ASBOs are used that are completely unacceptable and genuinely make up the vast majority of cases. They are used against behaviour that is already illegal and they are used against people who are in dire need of significant help from society.

By giving an order to an individual not to commit an already criminal act there is a serious attempt to by-pass the criminal justice system. When a man was given an order not to attack his bin men he was essentially being told that the court could impose a heavier sentence on him, and require less proof, than is normally possible for his criminal acts (if any). For example, you could go to jail for a crime that carried no such penalty.

More importantly when receiving the ASBO the recipient has nothing like the ability to defend themselves and put their case as they would in a criminal court, despite the fact that once the ASBO is breached it becomes a criminal act (even if it is later rescinded through appeal). The burden of proof has fundamentally shifted. Of the young people who receive what is called an ‘interim’ ASBO last year (2005) 43% were given no notice that an ASBO was being considered and given no chance to attend the hearing in order to argue against an ASBO being imposed. The first they heard of it was when they were informed the ASBO was already in place.

That’s not all. Even when potential ASBOee’s are able to put their case their ability to do so on an even playing field is hopelessly undermined. Council officials can give evidence on behalf of witnesses who remain anonymous, which means these witnesses cannot be cross examined – so hearsay evidence suddenly becomes admissible in a way that no court would ever have previously allowed. You could go to jail for breaking an order only imposed due to rumour, speculation, malice or mistaken identity and without the necessity of one shred of proof.

The second group of people who are on the sharp end of ASBOs are those with mental health problems or neurological disorders. These cases are extremely common and often heart breaking. There was the case of the woman who, after a number of suicide attempts, was banned from going up the multi-storey car park or near the canal. A society that criminalises despair instead of offering help is one living in a moral vacuum.

When a 15 year old Midlands boy with Tourettes Syndrome was banned from swearing in public it can be seen as nothing else but criminalising his condition and imposing house arrest. When a lad with Aspergers was banned from “staring into his neighbours garden” it displayed an uncommon ignorance and placed conditions upon someone that they could not possibly fulfil or properly understand. Without the opportunity to give a defence and explain the nature of these conditions it is inevitable that gross injustices occur. ASBO's in particular have been used to try to criminalise behaviour rather than tackle the problems that lie behind it.

When you hear of the prostitute that was barred from carrying condoms you have to think “this is supposed to make her *more* socially responsible?” How many kids even understand the conditions of their ASBOs? The boy with learning disabilities who broke his ASBO conditions over twenty times by, among other things, playing five aside football in the park (he was banned from assembling with more than two people) ended up in severe distress attempting to hang himself in a police cell and self harming to the extent that he is permanently disfigured. Sometimes the local council has 'named and shamed' those who've received an ASBO and more than once the victims of these campaigns have been assaulted or harassed. In the case of under 16s naming and shaming would be illegal if they had been convicted of a criminal offence, but perfectly possible if they had received an ASBO and never been convicted of any crime.

The full scale of the undermining of civil rights is highlighted very well, I think, by the following example. A woman received an official letter threatening her son with an ASBO because he had been driving a scooter round the estate at all hours and had been making a general mischief of himself. Clearly an unwholesome specimen you’re thinking perhaps? The thing is her son was not born yet and the woman was the victim of a malicious hoax.

I know what you’re thinking – how does she know the foetus is not sneaking out at night causing mayhem without her knowledge – I suppose we’ll never know. But what we can know is that the police, the council or indeed any official body could never have had any dealings with her ‘son’ on any level what so ever, and yet were willing to threaten an ASBO on the simple word of possibly only one of her neighbours. In court this would be called hearsay and rightly be thrown out, welcome to the world of the ASBO.

Imagine for a moment that the woman’s son had been 15. On literally no evidence the council would have been happy to place an ASBO on him suddenly making acts like going into the town centre criminal ones. There is a swathe of bizarre and downright unjust ASBOs – it’s not down to one or two people making slip ups, its built into the ASBOs themselves. They are the removal of a whole series of protections against the indiscriminate use of the law and, as long as ASBOs exist, they will generate case after case of disgusting injustice.

The problems on working class estates stem from the fact that we have communities without a sense of community, and there is no law enforcement measure that can combat that. We need to look to social rather than policing solutions. Social centres, after school football and clubs, proper community facilities and real attempts to improve the quality of everyday life are tried and tested measures that are ignored because they don’t involve imprisonment or privatising something. They don't make for good by lines in the Daily Mail, but they are proven to really work - unlike authoritarian legislation.

As Will McMahon of the Crime and Society Foundation says "With each cranking up of the 'respect' agenda, the Government takes a further step away from its trumpeted goal of tackling the causes of crime. The sad fact is no political party has shown any real inclination to address the bedrock of poverty that underlies many of the social problems that the Prime Minister claims to care about."

By deliberately alienating and isolating people in this way we are going out of our way to ensure their behaviour spirals out of control. These orders give carte blanch to the government to criminalise the poor and that really is anti-social behaviour.

Check out the Carnival of Socialism this Friday over at Leftwing Criminologist