Antisocial Behaviour etc. (Scotland) Act 2004: Guidance on Antisocial Behaviour Orders

Introduction
Contact
Taking a strategic approach
ASBOs: The Basics
Interpretation of antisocial behaviour
Equal opportunities
Standard of proof
Who can apply for ASBOs
ASBO Policies
Acceptable Behaviour Contracts
ASBOs for 12-15 Year Olds
Prevention
Initial intervention
Dealing with persistent antisocial and offending behaviour
Multi-agency consideration of cases involving under 16s
Managing the Application Process
Consultation on applications
Interim ASBOs
Local authority and RSL response to complaint or concern about antisocial behaviour
Private landlords
Owner occupiers
Joint working with the police
Disclosure and sharing of information
Making an application
Geographic scope of orders
Court proceedings
Sheriff's referral of case to Reporter
Action Following the Making of an Order
Informing the victims
Appeals
Reviewing of orders
Variations and revocation of orders
Tenancy and homelessness issues
Breach
Record of orders
Annex A - Summary Application Procedure
Annex B - Cases involving 12-15 year olds (flowchart)

INTRODUCTION
  1. Antisocial behaviour orders (ASBOs) are preventative orders intended to protect people in the community affected by antisocial behaviour from further acts or conduct that would cause them alarm or distress. An ASBO is a court order which prohibits, either indefinitely or for a specified period, a person from doing anything described in the order. Breach of an order is a criminal offence.
  2. ASBOs have been in operation in Scotland for persons aged 16 or over since April 1999 under powers introduced by the Crime and Disorder Act 1998.
  3. The Antisocial Behaviour (Scotland) Act 2004 ('the 2004 Act') extended ASBOs to 12-15 year olds and introduced some changes to improve the effectiveness of the orders. Part 2 of the 2004 Act, which relates to antisocial behaviour orders, replaces the relevant provisions of the Crime and Disorder Act 1998. The new provisions come into effect on 28 October 2004. The 2004 Act can be found at: www.hmso.gov.uk
  4. The 2004 Act also introduced at section 118 the power for a court to make an ASBO on conviction in the criminal court as part of the sentence. Section 118 amends the Criminal Procedure (Scotland) Act 1995 to insert a new section 234AA. The court must be satisfied that in committing the offence which lead to the conviction the person engaged in antisocial behaviour and an ASBO is necessary to protect persons from further antisocial acts. While ASBOs made in the criminal court will operate in the same way as ASBOs made in the civil court, this guidance focuses on the civil orders.
  5. It is important to note that ASBOs on conviction are not applied for by any authority, or the procurator fiscal. It is a matter for the court based on the evidence given at trial or the Crown narration in court. Hearsay evidence cannot be considered in criminal proceedings, but the court will take into account previous convictions tendered by the Crown. An example of when a court may choose to impose an ASBO, is where it considers that a pattern of behaviour has been established. This could be evidenced by the facts and circumstances of several charges on a complaint/indictment in respect of which the accused has been found or has pled guilty. In order for a court to find a course of conduct established, there must be more than one incident libelled on the complaint/indictment, sometimes of a similar nature, of which the accused is convicted. The court could also be satisfied that an order is necessary based on one charge. The criteria set out in statute stipulates that, amongst other things, the court must be satisfied that a person has acted in a manner that has caused or would be likely to cause alarm or distress.
  6. One of the changes in the 2004 Act is the introduction of statutory guidance in relation to antisocial behaviour orders. Section 16 provides that a person (other than a court) shall, in discharging functions by virtue of Part 2, have regard to any guidance given by the Scottish Ministers about-
  7. (a) the discharge of those functions; and
    (b) matters arising in connection with the discharge of those functions.
  8. Non statutory guidance (Police Circular No 3/1999 and Police Circular No 6/2003) has informed the use of ASBOs since they have been available. The 1999 guidance was updated in 2003 to take account of amendments to the statutory provisions on ASBOs in the Criminal Justice (Scotland) Act 2003. In particular, the introduction of interim orders and the extension of the power to apply for antisocial behaviour orders to registered social landlords. This statutory guidance will replace the earlier non-statutory guidance.
  9. Contact
  10. If you have any queries about this guidance please contact the Antisocial Behaviour Unit on 0845 774 1741 or e mail antisocialbehaviourunit@scotland.gsi.gov.uk
  11. In addition, as part of the wider programme of support for the implementation of the Antisocial Behaviour etc (Scotland) Act 2004, the Executive is funding a telephone advice line for practitioners. The service will provide telephone advice and support on a wide variety of technical issues such as how to apply for an Antisocial Behaviour Order, the process of granting a closure notice etc. This service will be available from the end of November 2004 and the number will be widely published in advance. If you want to find out more information about the advice line, you can contact the Executive's Antisocial Behaviour Unit by email at adviceline@scotland.gsi.gov.uk
  12. Taking a Strategic Approach
  13. Part 1 of the Antisocial Behaviour etc. (Scotland) Act 2004 requires each local authority and the relevant chief constable to prepare a strategy for dealing with antisocial behaviour in the authority's area. The strategies should include an assessment of the extent and types of antisocial behaviour in the authority's area and the range and availability of services designed to prevent and deal with antisocial behaviour. The local authority must consult the Principal Reporter, registered social landlords who provide or manage property in the authority's area and community bodies and other persons it considers appropriate. Separate guidance is provided on antisocial behaviour strategies.
  14. Use of ASBOs, whether an application is from a local authority or a registered social landlord, should be considered in the context of wider strategies to prevent antisocial behaviour and where it occurs to deal effectively with the causes and effects. Prevention is better than cure. Authorities will want to consider a range of options such as mediation, support services, voluntary agreements and diversion projects before deciding to pursue legal action.
  15. ASBOs are an important tool and have been used effectively by many local authorities since they were introduced for over 16s in 1999 and more recently by registered social landlords since the power to apply was extended to them in 2003.
  16. Joint working between agencies is vital and taking forward the use of ASBOs in the context of local antisocial behaviour strategies should be the basis for effective and appropriate use of orders. As outlined in the ASB strategies guidance, we envisage that in most local authority areas the appropriate structure for the wider ASB strategy will be the Community Safety Partnership. There should also be effective linkages with agencies on Safe City Centre Initiatives and other bodies working to reduce crime and antisocial behaviour.
ASBOs: THE BASICS
ASBO POLICIES
ASBO FOR 12-15 YEAR OLDS
MANAGING THE APPLICATION PROCESS
  1. The requirement to consult each local authority in whose area there is an affected person would only be relevant where the authority is aware that there are persons affected by the behaviour of the specified person in other authority areas and that it may be appropriate to seek prohibitions which extend beyond the area of the authority applying for the order.
  2. These are the legal consultation requirements. Authorities are also encouraged to consult other agencies and bodies involved in preventing and dealing with antisocial behaviour. This may include voluntary organisations working to prevent antisocial behaviour or businesses affected by antisocial behaviour. Judgement will be required on what is appropriate depending on the circumstances of the case.
  3. Registered social landlord applications
  4. Before making an application for an ASBO or interim order (including applications for variation or revocation), where the person is aged 16 or over registered social landlords are required to:
  1. While the legal requirement is to notify the local authority, it is good practice to consult as there may be relevant information from the local authority about the case and their view on handling should be considered.
  2. Before making an application for an ASBO or interim order (including applications for variation or revocation), where the person is aged 12-15 years registered social landlords are required to:
  1. While a registered social landlord can proceed to make an application for an ASBO without the support of consultees we would strongly recommend that full consideration be given to alternatives available and the reasons of the consultees for opposing the proposed application before proceeding. The views of consultees will be made available to the court to inform consideration of whether to grant an ASBO.
  2. As noted with reference to local authority applications, these are the legal requirements in respect of consultation. Registered social landlords are also encouraged to seek the views of other bodies whose input may be valuable in considering the most appropriate means of dealing with the antisocial behaviour.
  3. Interim ASBOs
  4. Interim orders are available under section 7 of the 2004 Act. They are available to provide more immediate protection from antisocial behaviour. An interim order prohibits the person named in it from doing anything prescribed in it, pending determination of the application for a full ASBO.
  5. Interim orders have been in effect in Scotland since 27 June 2003. Section 44 of the Criminal Justice (Scotland) Act 2003 amended the Crime and Disorder Act 1998 to introduce interim Anti-Social Behaviour Orders. The provisions in the Antisocial Behaviour (Scotland) Act 2004 replace those in the 1998 Act (as amended).
  6. The interim order can be made at an initial court hearing held in advance of the full hearing, if the sheriff is satisfied that prima facie the specified person has engaged in antisocial behaviour towards a relevant person and that an interim order is necessary for the purpose of protecting the public from further antisocial behaviour. This temporary order can impose the same prohibitions and has the same penalties for breach as full ASBOs.
  7. The sheriff may grant an interim order provided the individual named on the application has received intimation of the initial writ and the sheriff is satisfied that the antisocial conduct complained of would be established when a full hearing takes place. The sheriff must also be satisfied an interim order is necessary to protect relevant persons from further antisocial acts or conduct by him. Where the individual is aged 12-15 the sheriff will have regard to any views expressed by the Principal Reporter in determining whether to make the interim order. The views of the Principal Reporter will be obtained from the authority applying for the order and should, where practical, be submitted before an application for an order is made. Sheriff Court rules make clear that the views of the Reporter must be provided in writing before a decision is made to grant an interim order.
  8. In order to prove that intimation has been received by the defender, it may be advisable for local authorities and RSLs to intimate the initial writ personally.
  9. There is no explicit provision for any representations made by or on behalf of the respondent before an interim ASBO is granted, although the court, using its discretion, can consider any such representations as it sees fit. If the court allows both parties to be heard when considering a request to grant an interim ASBO, a solicitor can represent a respondent who wishes to oppose an interim order under the special urgency provisions of Regulation 18 of the Civil Legal Aid (Scotland) Regulations 2002, which enable representation to be provided prior to the determination of an application for civil legal aid. If civil legal aid has been granted prior to such hearing, then opposition to the seeking of an interim ASBO will be covered by the grant of legal aid.
  10. The interim order will not normally specify how long the conditions should apply for but the interim order will only last until the application for the full order is completed. When an interim order is granted, the sheriff will already have set a date for the next hearing which is normally 6 weeks ahead. If a full evidential hearing is necessary the final decision on the ASBO application would normally be within 10 to 12 weeks after the date it is fixed but the court can be asked and will often be able to provide an earlier date if asked to do so because of the circumstances of the case.
  11. While breach of an interim ASBO has the same criminal penalty as a full ASBO, the interim order does not impact on security of tenure. The provisions in the Housing (Scotland) Act 2001 are only related to the granting of full ASBOs.
  12. Local Authority and RSL Response to Complaint or Concern about ASB
  13. On receiving a complaint or having its own concerns about antisocial behaviour, the local authority or registered social landlord should:
  14. - establish the facts, taking great care when investigating complaints to avoid the possibility of discrimination/victimisation on the grounds of age, race, sex, sexual orientation, disability or religion. - determine whether the behaviour which has caused the complaint or concern would constitute antisocial behaviour. - consider whether the behaviour was reasonable in the circumstances. Give consideration to the wider circumstances. For example, does the person have a disability, medical or developmental condition which affects their behaviour? - local authorities should ensure that all relevant departments are involved in the consideration of the case and discussions on what action should be taken, so that the authority's response is a collaborative one and all the consequences of any particular course of action are taken into account. This would include the housing and social work departments, and the legal department where any court action might be contemplated. Further information on agencies to be involved in discussions in relation to under 16s can be found in the ASBO for 12-15 year olds section of this guidance. - registered social landlords should seek to ensure that other relevant parties, including local authority departments, have the opportunity to input on the most appropriate response. - establish what steps any complainer has taken to resolve matters, and consider whether further steps would be appropriate. These might include mediation in some circumstances, or - depending on the circumstances of the complainer and the behaviour - civil action or referral to the children's reporter. (See section on ASBO policies above) - where such remedies are not appropriate or have failed, and the local authority or registered social landlord is satisfied that the person has acted in an antisocial manner and that an order is necessary to protect the community from further antisocial acts, the relevant authority should consider the possibility of an application for an ASBO against the authority's own policy criteria.
  15. It should be noted that section 4(12) of the Act makes it clear that the existence of the ASBO mechanism is without prejudice to the use of existing legal remedies to tackle antisocial behaviour such as interdict or eviction.
  16. As outlined above, ASBOs are one of a range of remedies available and it is important that careful consideration is given to the most appropriate remedy in the circumstances. The suitability of other preventative measures such as warnings, mediation, acceptable behaviour contracts, referral to the children's reporter, enforcement of tenancy agreements etc should be considered and, where appropriate, tried before an early application for an ASBO and an interim ASBO is made. Where the assessment of a case suggests that there is a need to provide immediate protection from antisocial behaviour, or regularity of incidents and the likelihood that the conduct will continue if an ASBO is not granted quickly, an early application for an ASBO and interim ASBO may be appropriate. There should be a presumption against making an early application in cases involving under 16s as there are a wider range of alternatives to consider and it is important that use of ASBOs is consistent with the role of the Principal Reporter and the children's hearing system (see section on ASBOs for 12-15 year olds above).
  17. Private Landlords
  18. Where it is the tenants of landlords other than local authorities or RSLs- private or public - who are behaving antisocially, the landlord should follow his own policy and procedures for dealing with complaints. Individual policies and procedures should also be followed where there are concerns about the behaviour of a 12-15 year old who lives in accommodation rented from a private landlord. Landlords should not approach the local authority with a request for an ASBO until they have considered and where appropriate tried all the means at their disposal to resolve the problem.
  19. Options which should be considered by private landlords include:
ACTION FOLLOWING THE MAKING OF AN ORDER

Scottish Executive
October 2004

Annex A
SUMMARY APPLICATION PROCEDURE (PERSONS AGED 16 OR OVER)
ANNEX B
CASES INVOLVING 12-15 YEAR OLDS (FLOWCHART)

1. House of Lords, Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea (on Appeal from a Divisional Court of the Queen's bench Division); Regina v Crown Court at Manchester Ex p McCann (FC) and Others (FC), October 2002