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described the social problem that S.1 of the 1998 Act was designed to address. He referred to
the fear, misery and distress that might be caused by outrageous anti-social behaviour,
usually in urban areas, often by young persons and groups of young persons. He said:
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“In recent years this phenomenon became a serious problem. There appeared to be a gap in
the law. The criminal law offered insufficient protection to communities. Public confidence
in the rule of law was undermined by a not unreasonable view in some communities that the
law failed them.”
- There are various procedures which can lead to the making of an ASBO, in particular,
that which involves an application by a relevant authority (e.g. a local authority) to a
magistrates’ court. We are concerned with the power to make an ASBO following conviction
for a relevant offence, a power granted to avoid the need to invoke the procedure in the
magistrates’ court and thus a further hearing. The power was granted by s. 1C of the Crime
and Disorder Act 1988 (“CDA 1998)”, as inserted by s.64 of the Police Reform Act 2002 and
amended by s.86 of the Anti-Social Behaviour Act 2003. However, the principles are the
same irrespective of the procedural route.
- Section 1 C (2) of CDA 1998 provides:
“If the court considers—
1. that the offender has acted, at any time since the commencement date [1st April 1999] in
an anti-social manner, that is to say in a manner that caused or was likely to cause
harassment, alarm or distress to one or more persons not of the same household as himself;
and
2. that an order under this section is necessary to protect persons in any place in England and
Wales from further anti-social acts by him,
it may make an order which prohibits the offender from doing anything described in the
order.” (Underlining added)
- An ASBO is an order prohibiting a person from doing the “thing” described in the
order.
- We deal first with some procedural points. In McCann the House of Lords held that
the proceedings on complaint by a relevant authority under s. 1 of CDA 1998 were civil in
nature, that hearsay evidence was admissible, that the magistrates’ court had to be satisfied to
the criminal standard that the defendant had acted in an anti-social manner, The test for
whether the order was necessary required an exercise of judgment or evaluation and did not
require proof beyond a reasonable doubt. In W. v Acton Youth Court [2005] EWHC 954
(Sedley L.J. and Pitchers J.) confirmed that proceedings under s. 1C are civil proceedings.
- In that case Pitchers J. said that:
“The actual and potential consequences for the subject of an ASBO make it particularly
important that procedural fairness is scrupulously observed.”
- (Shane Tony) [2004] EWCA Grim 287; [20041 2 Cr. App. R. (S.) 63 (p.343)
Henriques J. giving the judgment of the Court (presided over by Lord Woolf C.J.) said
(para.[34]):
“In our judgment the following principles clearly emerge:
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R. v DEAN BONES AND OTHERS