ASBO: they’re order of the day

THE Tory Party slogan for the British General Election on May 5 runs: Are you thinking what we’re thinking?

Who exactly is the who there? Well the British Labour Party, for one. The Liberal Democrats, too. And you might as well throw in most of our lot, too. Fianna Fáil. Fine Gael. The Labour Party. The PDs. Only the Greens have expressed reservations.

And what are they all thinking about? Well besides saving their skins at the election, they are thinking about how to tackle a phenomenon that Pat Rabbitte characterised as nothing less than something that “threatens the very fabric of society.”

As political bandwagons go, the campaign to introduce anti-social behaviour orders (ASBO) has filled up quicker than a free bar at a wedding.

The intriguing thing about the phenomenon of ASBOs is that the phenomenon wasn’t even classified until six or seven years ago.

The kind of behaviour it covers falls short of being criminal (or is at the bottom of the feeding chain in the criminal codification). It ranges from teenagers harassing people in their homes or street corners; drug-dealing in the streets; neighbours from hell; petty vandalism; graffiti; loutishness; public drunkenness; and loud music booming out from houses and flats in the middle hours of the morning.

The startling thing about the rise of ASBOs is that they come against a background of falling crime rates, and that includes some offences that come within the scope of ASBOs, such as vandalism and petty muggings.

In the normal course of events, most go unreported (one of the reasons they don’t appear on crime statistics reports). That may because people don’t bother to report them because they deem them too petty or they think the gardaí are powerless or indifferent to investigate them. Officially they don’t feature on the radar screen. The argument they make is that it is their persistence and frequency that make them more of a scourge than gang warfare, violent crime, or drug-dealing.

It was New Labour in 1999 who first came up with the concept of the ASBO and the criminalisation of behaviour that were not necessarily criminal offences.

In essence, local authorities and police forces were empowered to serve such orders for a wide range of behaviours. About 3,000 were handed out between 1999 and 2004 in Britain. Most were for loutish behaviour, harassment, disruptive behaviour by tenants etc. But some of them were barmy. Anti-war protesters have been served with them. As have a rowing couple whose arguments could he heard next door. And a farmer whose pigs kept escaping from him also got an ASBO.

THE beauty of the ASBO, from the perspective of the political classes are these. They go down well with the public - who will never believe that authorities are doing enough to crack down on crime. They are also civil orders rather than criminal ones. And thus the standard of proof that is required is the balance of probabilities, not proof beyond reasonable doubt. And thus they prove a remedy that combines speed, convenience and certainty.

The deterrent effect of the ASBO and their seemingly limitless scope, is what has caused most consternation in Britain. Breaching an ASBO is a criminal offence. It has led to some uneasy anomalies. A child too young to be dealt with in the criminal system can be convicted of a criminal offence by breaching an ASBO. A man who was caught shoplifting in two shops was freighted with a very heavy sentence for the second offence, because he had been served an ASBO to stay away from that shop.

The scope, too, may have undesired consequences. Anti-war protesters could find face the threat of criminalisation. There is a problem with the powers, too, but arguments about proportionality never wash with Joe Public. While there are problems, some of the exclusion, curfew and restraint orders hover close to draconian.

Of course, this isn’t a figment of politicians’ imagination. But the inclination for them all is to ratchet it up. To listen to their descriptions you’d think they were describing a society that is as nightmarishly disintegrated as that in A Clockwork Orange.

Proportionality is a big wishy-washy word. But we need to get real about the extent of this problem; tell it like it is rather than the hard chaw stuff we think people want to hear.