Respect Orders – an unwelcome bit of history repeating itself?

helenhall5

Feb 76 min read

Orla Slattery, Senior Lecturer at NLS https://www.ntu.ac.uk/staff-profiles/law/orla-slattery

In November 2024 the government announced that new ‘Respect Orders’ will be introduced to tackle anti-social behaviour; aimed at curbing nuisance public drinkers, street harassers, and vandalism. The new orders will only be imposed on adult offenders. Little detail is currently available, but it appears that Respect Orders will place prohibitions on anti-social behaviour and encourage recipients to engage in ‘positive rehabilitation’. Breach of such an order will result in a criminal penalty with a maximum sentence of up to two years in prison.

Anti-Social Behaviour

Anti-social behaviour describes a wide range of problems, from petty vandalism to noisy neighbours to begging and harassment. Public Authorities, including Police, may have difficulty in tackling such behaviour as it is either seen as not serious enough to be considered a criminal offence, or it can be very difficult to evidence to the required criminal standard of ‘beyond reasonable doubt’. In criminal courts, witnesses are required to attend in person, which many will be reluctant to do, particularly where they feel they are already a target for abuse. It undoubtedly causes significant distress to victims and prevents people from enjoying their homes and public spaces.

The History

ASBOs

Anti-social behaviour orders, colloquially known as ASBOs were introduced by Blair’s Labour government in 1998. These orders could be applied for against individuals by the Police, Local Authorities, social landlords, and other public bodies. Crucially these were civil orders which bypassed the need to prosecute specific criminal offences, this was important because rules of evidence differ in the civil courts and witnesses could provide evidence without attending court and sometimes with greater protection of their identities. However, the House of Lords in McCann in 2002 held that the behaviour did have to be proven to the criminal standard for an ASBO to be imposed. Like the proposed ‘Respect Orders’, once imposed an ASBO prohibited certain behaviours, often including curfews, non-association clauses, and exclusion zones. Breach of an ASBO was a criminal offence, punishable with up to 5 years in prison. Unlike the proposed ‘Respect Orders’ ASBOs could be made against children as well as adults, and in 2007 41% were imposed on children. By the mid-2000s the ASBO was falling out of favour, with Ed Balls, the then Children’s Secretary, stating that he wanted to ‘put ASBOs behind us’.

Civil Injunctions

The Coalition government which took office in 2010 were also seemingly not in favour of ASBOs. Thus in 2014 the ASBO was repealed and replaced instead with ‘Criminal Behaviour Orders’ (known as Criminal ASBOs or 'CRASBO's') and ‘Civil Injunctions’ (known as Anti-Social Behaviour Injunctions or ASBIs) in the Anti-Social Behaviour Crime and Policing Act, which remain in force to this day. The alleged aim of the new CRASBO's and ASBI’s was to simplify the process, although it is not entirely clear how this was achieved with this legislation.

‘CRASBO’s are issued in the criminal courts after a conviction, and ASBIs are issued in the County Court. ASBIs are wholly civil in nature, imposed after application to the County Court by public authorities including Police, local authorities and social landlords. They are imposed on the lower civil standard of proof that on the balance of probabilities the recipient had, or would, engage in conduct causing nuisance, harassment or distress. The ASBI, although an order made in the civil courts, is punishable by breach with up to 2 years imprisonment as contempt of court. However, unlike ASBOs, ASBIs do allow for ‘positive prohibitions’ to engage participants in rehabilitation.

Criticisms

Critics of the ASBO suggested that placing significant restriction on citizens for potential future behaviours that were by themselves not criminal, and then punishing any breach of prohibition with a criminal penalty and potentially up to 5 years in prison was incompatible with rights under the European Convention of Human Rights, including the Article 6 right to a fair trial and Article 7 right to no punishment without law. The House of Lords decision in McCann effectively endorsed the principle that ASBOs and other similar orders were not criminal in nature and thus there was no contravention of convention rights. Successive governments also upheld this argument.

Perhaps harder to ignore is the evidence that ASBOs did not appear to work. In 2006, a sample study by the National Audit Office found that 50% of the sampled recipients breached their ASBO, with a third doing so on 5 or more occasions. In some cases, recipients took the imposition of an ASBO against them as a status symbol.

The move to ASBIs does not appear to have improved these issues. Whilst the Ministry of Justice provides data on criminal convictions, there is no data collection on either the imposition of or breach of ASBIs. It is difficult to know if the addition of positive requirements in ASBIs are indeed utilised effectively to rehabilitate rather than simply punish. As a civil order, sentencing options are limited with criminal sentences such as community or addiction rehabilitation requirements not made available. Instead, where an individual has been found to be in breach of order, the court has the option simply to allow the order to continue, to fine the individual, or to imprison them for contempt. In the County Court when someone is sentenced for contempt, there is no option to have a Pre-Sentence Report prepared by the Probation Service that assess an individual’s circumstances, including their risk of further offending and rehabilitation needs. This means the court can only impose a bare sentence of imprisonment with no oversight as to rehabilitation requirements. In 2022 journalists analysed available data and found that someone was in court at least once every 8 days for breach of an ASBI.

ASBIs are frequently given for ‘nuisance’ behaviour, but landlords, Police and Local Authorities applying for orders are not under any duty to consider the mental health of the proposed recipient. As a result, ASBIs appear to be frequently made against people with significant mental health and addiction issues.

In the County Court where ASBIs are imposed, it is often difficult for recipients of orders to access legal advice. Although legal aid is technically available, many areas are lacking in legal aid solicitors who have the expertise required, or who are willing to take on the work.

Respect Orders - a new way?

There is scant detail on the proposed new Respect Orders. They will replace ASBIs only ‘in part’ (it is not clear which parts) and breach of a Respect Order will have a lower penalty than breach of an ASBO, in line with breach of an ASBI, at a maximum of 2 years imprisonment.

There is a clear need for a mechanism to deal with anti-social behaviour. It is of course extremely distressing for people who have to deal with constant nuisance, harassment, and abuse from neighbours or others who restrict their enjoyment of their homes and public spaces, and it is important that perpetrators are prevented from continuing to carry out such behaviours.

There appears to be some room for cautious optimism in the little detail we do have about Respect Orders. It is pleasing to see that there is specific provision made for positive rehabilitation and support within the orders. However, similar provisions are contained with existing ASBIs and there is little evidence of effective uptake. Positive requirements will be meaningless without adequate provision and funding of support services to assist people with complex social, mental and physical health problems and often addiction issues.

A return to the criminal courts may have some upsides. The magistrates courts have a duty solicitor scheme, which may increase the likelihood of recipients being legally represented. In addition, breach of Respect Orders being a criminal offence will once again open sentencing options and allow for supervision by probation services.

However, significant concerns continue. There remains the troubling aspect of criminalising non-criminal behaviour. The individuals who are targeted by such orders have often failed to adhere to social norms around behaviour, and frequently have emotional and mental health issues that affect their ability to comply with these norms. It is perverse to expect that they will revise their existing behaviour to comply with a court order without significant support.

In addition, breach of Respect Orders will result in a maximum penalty of two years imprisonment; meaning many sentences will fall within the definite of a ‘short’ prison sentence at a year or less. This comes at a time that the prisons are at capacity and when experts are recommending a move away from such sentences. It is not consistent to legislate for a new offence that will cause further short sentences to be imposed.

Respect Orders appear on the surface to be a proactive step to tackle anti-social behaviour; namely the behaviour that falls short of criminality. In practice however, given the continuing problems with orders of this nature, surely money would be better spent on improving support networks, mental health, and addiction counselling, and the general standard of living for everyone to realise this goal.

Respect Orders – an unwelcome bit of history repeating itself?

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