ASBOs address the symptoms but fail to tackle the causes

WE have ASBOs now, you know. Well, at least, we’ve passed the law that enables ASBOs to come into being. Now, there’s no particular reason why you should know this, because it was all done quietly and discreetly.

Maybe, just maybe, the system isn’t quite sure what it has created, and what needs to be done now to get it right.

ASBOs, by the way, are antisocial behaviour orders, and they were originally introduced in Britain to stop hooliganism.

The idea was that young people who were a persistent threat or nuisance to their neighbours could be served by a court with an ASBO. The order would forbid them from being in certain neighbourhoods, or from behaving in ways people found threatening or frightening. Breaching the order constituted a criminal offence, so if a young person strayed off the straight and narrow, as defined in the order, that could be enough to establish a criminal record.

ASBOs have had a controversial history in Britain and there have been many instances of young people who needed help and support (children with emotional problems, for instance) becoming criminalised instead. So when people began to talk about ASBOs as representing a solution in the Irish context, there was a lot of anxiety, and a lot of publicity. The political system didn’t seem too bothered by either, because the concept of ASBOs was embraced by the great majority of politicians in the Dáil.

As one of them said to me at the time, when I suggested this was a risky road to go down: “I don’t have a lot of young people coming to my clinics to tell me they have been alienated and marginalised, and that they need to be reached out to. I do have a lot of elderly people who are terrified at night by the racket some of the youngsters make, and by the foul language and the drinking and drugs.”

In fact, throughout most of last year there was a lot of publicity about ASBOs and a lot of debate about the rights and wrongs of them. What doesn’t appear to have been covered much in the newspapers was the development of the concept into law.

The Criminal Justice Act, which contains the new law about ASBOs, was passed by the Dáil in June. It was a long and complicated procedure, because the original Criminal Justice Bill, introduced in 2004, contained no mention of them. The act as it is now only came into being after months of debate in the Dáil and hundreds, perhaps even thousands, of amendments. In its published form, it runs to more than 170 pages, and is an extremely complicated piece of law.

But the ASBOs part of it is relatively straightforward, and it’s not nearly as bad as it could have been. In fact, if it were properly resourced and managed, and if one other factor that I’ll come back to is taken into account, there is a possibility that we might have created a bit of law in Ireland that other jurisdictions might want to have a look at.

The law relating to ASBOs won’t come into effect until the Justice Minister introduces a specific regulation — and he won’t introduce that until he’s had consultations with the Garda Commissioner. The reason for that is because it isn’t possible to bring ASBOs into practical operation without the support and active involvement of the gardaí at very senior level.

Once the law takes effect, this is what is supposed to happen: first, it only applies to young people between the age of 12 and 18.

No one under 12 can be served with an ASBO, because we have at last, in the same piece of legislation, finally got around to deciding that the age of criminal responsibility (except in the case of some very serious crimes) is 12.

In 2001, the Dáil decided to raise the age of criminal responsibility from seven to 12, but no one ever implemented that until now.

Secondly, ASBOs will apply only in the case of consistent bad behaviour. Antisocial behaviour is defined in the act as including harassment of others or “significant or persistent alarm, distress, fear or intimidation”. In that sense, the act seems designed specifically to target young people whose activities within their own neighbourhoods are frightening or terrorising others.

WHEN a complaint of antisocial behaviour is made, the act says a member of the gardaí can issue what’s called a behaviour warning to the young person concerned.

If the behaviour persists, the local garda superintendent can convene a meeting with the child and his or her family, together with anyone else the superintendent believes might be able to address the problem. At that meeting, a “good behaviour contract” contract can be drawn up, and the superintendent can ask both the young person and his or her parents to sign the contract.

The visit to the garda station involved in the original meeting, and the contract signed by parents and young person, may solve the problem.

If it doesn’t, the superintendent can reconvene the meeting, or he can go to the Children’s Court to seek a “behaviour order”. This order can specify prohibited behaviour or places, and it can require the young person to comply with certain instructions (like school attendance, for example, or regular visits to the garda station). The order will generally remain in force for up to two years.

If the young person breaches the order — but not before then — they can be arrested and charged with a breach. On conviction, they can be sent to a detention centre for up to three months.

In theory, this new law doesn’t seem unreasonable. It sets out a procedure which ought to ensure only persistent and frightening bad behaviour will be punished, and only then after a lot of opportunities to intervene.

The difference between theory and practice, of course, always comes down to resources. This law could work very well in a neighbourhood where there are community police, who know the place and the people. If it isn’t adequately resourced and backed up, though, it could become just another arbitrary way of dealing with unruly youngsters, who end up with criminal convictions when encouragement and incentives to stay in school might have worked just as well.

But perhaps the key thing about ASBOs, even a well-designed system that’s kept under scrutiny, is that they can only, by definition, address the symptoms of antisocial behaviour.

If ASBOs are to work as a last resort, we need to tackle the causes of this behaviour at its roots. Those causes are to be found in alienation, in educational disadvantage, in the breakdown of community life, in the lack of social capital that is typical of much of the way we live today, and in poverty.

Addressing the causes is more expensive and more demanding than addressing the symptoms, and there are a lot less votes in it. But trying to address antisocial behaviour by concentrating on the symptoms is only a recipe for failure.