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Anti-social behaviour orders were created by Section 1 of the Crime and Disorder Act 1998 and apply to persons aged 10 and over, making children and adults subject to the minimum period of the order—two years—and breach of the order can lead to a fine or a custodial sentence. Noble Lords have heard it said before that adolescence is a period of rapid development during which young people can demonstrate dramatic changes of behaviour and can obtain maturity within relatively short timescales. The purpose of this amendment is to reduce the minimum period for a child ASBO from two years to three months. Let me give noble Lords some figures: 40 per cent of ASBOs given to under-18s to the end of 2003 were breached; 179 custodial sentences followed, 30 of which were simply custody for the breach of the ASBO—a civil order. By the end of 2005, the rate of breach for young people had risen to 57 per cent, although I am not sure whether there are up-to-date figures for the number who have been sentenced to custody as a result of that breach.
The two-year minimum period for ASBOs is simply inappropriate. Our amendment would amend the law so that, in the case of children under the age of 18, magistrates would have greater discretion to set the duration of the ASBO, so that it might start as low as three months, as opposed to the present two-year limit.
The second problem that we are addressing is the use of custody on breach of the ASBO. A child may have a 24-month detention and training order as a result of the breach. We say that that is an inappropriate use of custodial disposals in response to behaviour that may have been non-criminal in nature. Those are the purposes of the amendment and I beg to move.
Baroness Hanham: As the noble Lord, Lord Thomas of Gresford, spoke, I grew in sympathy towards the amendment. The trouble with ASBOs at the moment is that they are being collected as trophies. An awful lot of the children who get them do not feel too strongly about them. It rather depends on whether they will feel any more strongly about them if they are there for two years rather than for three months. There should be flexibility in the courts about how long ASBOs are given for. An ASBO is a civil disposal for offences that will vary widely, so that flexibility should be allowed. I am shocked by the number of detention and training orders that are resulting from these ASBOs. That needs to be looked at. To put children into any sort of custody other than for the most heinous crime seems to me to be going way further than we should be.
Baroness Walmsley: I absolutely agree with the noble Baroness, Lady Hanham, that a degree more flexibility for the court would be appropriate. The figures that my noble kinsman has just read out are absolutely shocking. There is a link between this group of amendments and the previous group; if ISOs are to be really positive, they could play a part here.
Perhaps I could relate to the Committee a conversation that I had with the noble Lord, Lord Ramsbotham, at lunchtime today. He was telling me
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Lord Mayhew of Twysden: I would like to add a word in support of what the noble Baroness, Lady Walmsley, has just said. Two years in the life of a child under the age of 18 is a very long time. It may not seem very much to us in our hoary and advanced stages of life but, at the age of 16 or 17, two years is not far short of infinity. It is terribly important in the circumstances with which magistrates’ courts will deal to offer the prospect to the young offender—the child—of being able to achieve something by improving his or her behaviour. The amendment proposes to reduce the minimum length of an ASBO from two years to three months, which would give a degree of flexibility that meets in rather a helpful way the thought that I have just endeavoured to express. I therefore hope that the Minister will deal with it sympathetically when he replies.
Lord Elton: I shall say much the same thing in rather different words. There can be a good case in principle for having a mandatory minimum period of incarceration, because some things in imprisonment can be achieved only in a stated minimum of time. However, to bind the hands of sentencers for non-custodial sentences so that they must apply controls to a child for a stated minimum of time is to prejudge entirely the state of mind of the child and the circumstances of the offence. That is entirely wrong, so that leg of the amendment must be right. The second leg of the amendment is a separate matter, which could have been provided for in a separate amendment, but I entirely agree with the first leg of it.
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Lord Bassam of Brighton: This has been a short but thoughtful discussion about anti-social behaviour orders. Again, I congratulate the Committee on the way in which it reflects on these issues, as it adds value to our deliberations.
The amendment would reduce the minimum period of an anti-social behaviour order on a young person from two years to three months and remove custody as
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On the noble Baroness’s point, it is worth pointing out that the legislation already allows for an early discharge or for variation of the order at any time within the two-year period, so there is already the scope for what she suggests. In particular, the Bill puts this requirement for annual reviews on a statutory footing, so we have listened in general to the debate about that issue. The guidance also makes it clear that orders extending beyond two years need particular attention and, although an order must last for at least two years, the prohibitions can be set to last for shorter periods.
There is flexibility in the current arrangements that allows practitioners and the courts to tailor the orders to suit specific cases and circumstances. There is no one-size-fits-all approach. All our guidance, and the judgments handed down by the courts, make it clear that decisions about the content of the order turn on the circumstances of each case. Reducing the minimum period for which an ASBO can be issued to a person under 18 to three months would reduce the incentive to change behaviour in the long term and would therefore impact negatively on the respite that ASBOs provide for communities.
Also—perhaps the noble Lord, Lord Thomas, has not appreciated this point—the introduction of a three-month minimum would be likely to increase the number of ASBOs given. I suspect that that would be a consequence of the way in which the order would work and would be structured, because an ASBO is given by the court only after a stringent two-stage test has been met. First, the behaviour complained of must be proven beyond reasonable doubt. Secondly, the applicant must satisfy the necessity test; namely, that the order is necessary to prevent a recurrence of the behaviour proven in the first test. This means showing that the prohibitions are required to stop the anti-social behaviour for at least a two-year period. The necessity of a three-month ASBO would be much easier to demonstrate. I cannot believe that the noble Lord intends to lower the bar and make it considerably easier to secure an ASBO against a juvenile than against an adult. We would argue that that is not in the interests of young people or of the community, which deserves a decent period of respite—at least two years—from anti-social behaviour.
ASBOs should always be seen as part of a wide range of options to bring behaviour under control. However, where the court takes a decision to issue an ASBO on a young person because he or she has failed to respond to other interventions and there is a need to protect the public, the ASBO should also be accompanied by, as we argued earlier, an individual support order to help the young person to deal with the underlying issues and causes in order to better manage his or her behaviour.
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ASBOs can be extremely effective in preventing further escalation into criminal behaviour. Under the ASBO, behaviour is constantly monitored, often by the public—hence the use of publicity—and if the order is breached people face consequences that can include custody. It is always made very clear that any breach of the ASBO conditions could result in a community penalty, a fine or, ultimately, a custodial sentence. For a young person, a custodial sentence should be considered only as a last resort in cases of persistent and serious breaches. That last resort of custody gives ASBOs teeth and hardness. If people do not abide by them, there are serious consequences to be faced.
We well understand the concerns that have been raised by children’s organisations in the past that ASBOs criminalise young people, but we know that a study by the Youth Justice Board concluded that the use of ASBOs is not bringing a whole new group of young people into custody. In its study, 43 young people who received custody for a breach of an ASBO had a total of 1,779 offences between them. Something like 190,000 young people are dealt with by the police and courts each year, but only 4 per cent receive custodial sentences.
We know that ASBOs work. The National Audit Office report published in December 2006 showed that anti-social behaviour interventions have a big impact in stopping the problem. The right package of support and enforcement helps to ensure this and we have put that in place. I make no apologies for supporting front-line practitioners by providing what we, the Government, consider to be highly effective tools and powers of intervention. The well meaning nature of the amendment could have an unintended consequence. The concerns for flexibility and the need for a review are already met. We have spelt that out in guidance and we are seeking to put it on a statutory footing. As I have explained, the legislation allows for a variation of the way in which the orders operate. I hope that, having heard that, the noble Lord will feel able to withdraw his amendment.
Lord Mayhew of Twysden: Perhaps the Minister would take us through this line of thinking. In the context of what we were told repeatedly by the noble Lord, Lord West of Spithead, at our last Sitting, the Government wish to rely on the good sense and discretion of magistrates’ courts. The argument that has just been put forward by the Minister is that we should not reduce the minimum from two years to three months because that would give rise to a greater number of ASBOs. Surely that could come about only if it was in line with the good sense and discretion of magistrates to meet a perceived need.
Lord Bassam of Brighton: Like the noble and learned Lord and the noble Lord, Lord West, I trust the good judgment of magistrates. However, if we were to follow the route suggested by this amendment, we could end up with far more cases coming before the court that presented an argument for an anti-social behaviour order to be made. We could trigger a situation where a succession of anti-social behaviour orders
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Lord Elton: What the Minister has just said—exactly as my noble and learned friend argued—is that we should not give the courts the extra flexibility because they are likely to use it wrongly. Like the noble Lord, Lord West of Spithead, the court should be trusted to match the sentence to the crime in the good old Gilbertian sense.
Lord Bassam of Brighton: I do not think that there is a cigarette paper between me and the noble Lord, Lord West, on the good sense of magistrates. They are all good citizens, as the noble Baroness, Lady Hanham, obviously is. We are not trying to interfere with the good sense of their judgment. We are trying to make intelligent use of court time and to ensure that they have that flexibility. As I said, we are seeking to legislate to create more of that through this Bill. I do not wish to do anything that would undermine that. The way in which the ASBO regime works and the way in which we seek to perfect it make good sense in terms of reducing anti-social behaviour.
Lord Thomas of Gresford: The way in which the ASBO works is that the individual who is subject to the order is placed under a number of restrictions. Those restrictions may be very irksome to him. Similarly, he is placed under the guidance of those who are monitoring the order. He may find that to be irksome, too. Over two years, the frustration that he feels is likely to mount up and a breach is therefore more likely to occur. A shorter period of an ASBO, if the court in its wisdom thought that appropriate, would enable him to have the short sharp shock that the Conservative Party was once very much in support of, to realise what it means to have anti-social behaviour orders placed on him and to mend his ways accordingly. Surely it is for the good sense of the magistrate to determine that.
The second point—I am sorry that I did not get the support of the noble Lord, Lord Elton, on this—is on imprisonment. If a person under the age of 18 has acted in such a way in breaching his anti-social behaviour order as to merit imprisonment, I respectfully suggest that he must have committed some criminal offence that would make it necessary for him to go to prison, if that is the last resort and the best way of dealing with the problem. I cannot envisage that a breach of the conditions of an ASBO—for example, that he should not go out at night, visit a particular public house or walk down a street, or whatever else the restrictions are that have been placed on him—could ever amount to the necessity to imprison. I am not suggesting abolition of imprisonment or detention—or whatever you want
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Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved Amendment No. 166B:
(2) Omit sections 1(10D) and (10E) (anti-social behaviour orders) and 1C(9C) (orders on conviction in criminal proceedings).
(3) In subsection (9) of section 1C (orders on conviction in criminal proceedings), omit “(10D), (10E)”.
(5) After section 49(2)(d) (restrictions on reports of proceedings in which children or young persons are concerned) insert—
The noble Lord said: The amendment deals with reporting restrictions for children. Recently I was engaged in a case of murder and the sentence was passed last Friday. The person concerned was under the age of 18 and the offence alleged was committed when he was 16. Throughout the whole of the proceedings—from his arrest, interrogation, charging, appearances in court, trial, all the evidence and conviction—at every stage his identity was protected by an order of the judge. It was only following sentencing on Friday that the judge, after due consideration, decided that it was in the public interest that his name should be released to the press.
That was in the most serious case you can have. It was under Section 49 of the Children and Young Persons Act 1933—now 70 years old—which creates automatic reporting restrictions for children involved in criminal proceedings. The Anti-social Behaviour Act 2003 amended the Crime and Disorder Act 1998 to provide that these reporting restrictions will not apply to children facing an ASBO upon conviction in criminal proceedings. Section 141 of the Serious Organised Crime and Police Act 2005 further erodes children’s privacy rights by also removing automatic reporting restrictions in respect of children facing proceedings for an alleged breach of an ASBO, allowing for them to be named and shamed.
This naming and shaming was the product of the Home Officer under, I think, the tutelage of Mr Blunkett, who never seemed to be able to place in the framework of the criminal law his concern for anti-social behaviour that affected his constituents and his constituency. So for something which is down at the bottom of criminal behaviour, the 1933 protection has been removed. This means that children as young as 10 can be named and depicted in
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What is the purpose of it? The Government will say, no doubt, that the only way in which you can make ASBOs work is to give them publicity, but naming and shaming violates children’s human rights. The report on the United Kingdom in 2005 by Alvaro Gil-Robles, who is the Council of Europe’s Human Rights Commissioner, made shaming comments about the position in this country. He said that it is,
- “entirely disproportionate to aggressively inform members of the community who have no knowledge of the offending behaviour and who are not affected by it of the application of ASBOs. It seems to me that they have no business and no need to know”.
Article 40.2(vii) of the United Nations Convention on the Rights of the Child is clear that children have a right to privacy at all stages of proceedings. Article 3 states that the best interests of the child must be a primary consideration in all decision-making. The policy of naming and shaming vulnerable children has not yet been tested in our courts under the Human Rights Act but it is my contention that it amounts to a breach of Articles 6 and 8 of the European Convention on Human Rights.
ASBOs can apply to children who are not suffering from any particular problem, but a high proportion of children against whom they are made are suffering from learning difficulties and mental health problems, and yet they are named and shamed.
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When, in a Question in July 2005, Mr John McDonnell asked the Home Office Minister to give information on the physical and mental condition of people issued with an ASBO, the reply was:
“Information is not collected centrally about the characteristics of persons issued with an antisocial behaviour order”—[Official Report, Commons, 22/7/05; col. 1090W.]
There has been no research of which I am aware of the effects on children of naming and shaming; whether it reforms and rehabilitates or contributes to that 57 per cent of children subject to ASBOs who breach them, we just do not know. In many professional circles, there is a strong view that it is more likely to make matters worse and to prevent children overcoming anti-social behaviour by giving rise to vilification. As the noble Baroness, Lady Hanham, pointed out earlier today, that can be regarded, perversely, as a badge of honour and can have a considerable negative effect. Some children are more aggressive if they have an order of that sort which marks them out of the crowd as being leaders in disruptive and objectionable behaviour.
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