Anti Social Behaviour Orders – A Point of view…

Introduction

An ASBO (in the UK) is a civil order made by the court to protect the public from anti-social behaviour defined as ‘behaviour that causes harassment, alarm and distress’. They are applicable to anyone over 10 years old and will involve the court making an open-ended order that restricts the actions and behaviour of the individual with a view to protecting the community from further anti-social acts. Although an ASBO is a civil order, breaking it is a criminal offence, which can be punished by imprisonment for up to five years.

Anti Social Behaviour Orders have become central to the response of the political system to the problem of anti social behaviour. The Minister for Children Brian Lenihan and his Department in conjunction with the Department of Justice has announced its intention to introduce Anti Social Behaviour Orders.

The Minster has more recently commented that a two tier system should be introduced which treated young people and others differently along with integrating ASBOs with the Childrens Act 2001. With a look at the intention of the Children’s Act 2001, which aims to divert young people from the criminal justice system, this seems to be contradictory in itself.

The current proposal points out that:

•The provisions for children will be fully integrated into the Children Act 2001 and will attract all the safeguards of that Act

•The proposals will provide for anti-social behaviour orders for children in two categories, those aged 14 years and over and those between 10 and 14 years of age

•Only senior Gardai could apply for ASBOs

•Guidelines for the courts and Gardai were to be drawn up

•A number of warnings would have to be given to a young person

Criminalising Young People

ASBOs serve to criminalise young people for activities, which are not in themselves criminal. Rather than tackling the causes of people engaging in so called “Anti Social Behaviour”, ASBOs will criminalise them, and further alienate them from their communities.

The Children Act 2001 is designed to provide a modern framework for the youth justice system which diverts young offenders and those likely to offend away from the criminal justice system and from custody. Introducing ASBOs on top of this legislation, threatens the potential that the Act presents to reform the area of children at risk in Ireland. It will also pose significant challenges not just to young people and their families who are already marginalised and disadvantaged, but to the agencies with responsibility in this area including the Health Executive, the Probation and Welfare Service and other youth services in general.

Violation of international commitments

According to experts it is possible that ASBOs violate the European Convention on Human Rights and could be challenged in our own courts under the ECHR Act 2003 as they do not respect due process under ECHR and our own Constitution.

The UN Convention Rights of the Child sets out the commonly accepted international standard for the treatment of young people, Article 3 sets out the principle of the “Best Interests of the Child”, Article 40.1 deals with children in conflict with the law saying they must be treated with dignity. Article 15 provides for free assembly and Article 31 recreational activities. ASBOs may breach all of these articles.

Conclusion

It is believed that ASBOs are contrary to modern diversionary approach to youth justice that has received expression in Garda Diversion Projects, Community Policing and the Children’s Act 2001. The ASBO’s also involve a worrying mix of criminal and civil law, which have different standards and codes. Young people may serve longer sentences for ASBO violation than those convicted of more serious criminal offences.

There is no conclusive evidence that there has been any major recent increase in anti-social behaviour. However provisions do exist to deal with such situations under a variety of pieces of legislation such as:

•Children’s Act2001

•Public Order Acts

•Intoxicating Liquor Act

Anti Social Behaviour has its root in a variety of reasons. The provision of an adequate resourced youth & social service plays a vital role to combat the undoubtedly negative impact Anti Social Behaviour has on communities and society in general. The government is good advised to spend more funding into such services. At the same time it should listen to experts and professionals on the ground because they are dealing with Anti Social Behaviour on a daily basis.