Young people and antisocial behaviour
Notes from a seminar held on 19th April 2011
at the Nuffield Foundation, 28 Bedford Square, London WC1
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Seminar participants
Tim Bateman
Edward Boyd
Prof. Adam Crawford
Kathy Evans
Jane Glover
John Graham
Toby Hamilton
Diane Hart
Sally Ireland
Sam Lewis
Trudy Lowe
Sian Lockley
AC Ian McPherson
Prof. Rod Morgan
Judy Nixon
Mark Norris
Pamela Ormerod
Abigail Plenty
Larissa Pople
Anthony Salz
Supt. Andrew Shipman
Prof. David Smith
Mike Thomas
Vic Towell
David Utting
Michael Warren
Andrew Webb
Natalie Williams
Carolyne Willow
University of Bedfordshire
Policy Exchange
University of Leeds
Children England
Barnardo’s
The Police Foundation
Ministry of Justice
National Children’s Bureau
JUSTICE
University of Leeds
University of Cardiff
Youth Justice Board
Metropolitan Police
Former Chair, Youth Justice Board
Sheffield Hallam University
Local Government Association
Magistrates’ Association
Ministry of Justice
The Children’s Society
Chair, Independent Commission on Youth Crime
West Midlands Police
London School of Economics
Former Chair, Association of YOT Managers
HM Inspectorate of Constabulary
Independent Commission on Youth Crime
Home Office
Corporate Director CYP, Stockport Council
The Children’s Society
Children’s Rights Alliance England
Observers
Verity Harding
Jesse Donaldson
Policy Adviser, Liberal Democrats
The Police Foundation
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Young people and antisocial behaviour
Notes from a seminar hosted by the Independent Commission on Youth
Crime and Antisocial Behaviour and JUSTICE on 19th April 2011 at the
Nuffield Foundation, 28 Bedford Square, London WC1
The seminar took place as a round-table discussion attended by more than 30
policy makers, youth justice practitioners, lawyers, magistrates, police,
academics and specialists from children’s organisations and think-tanks. It
was chaired by David Smith, Honorary Professor of Criminology at the
University of Edinburgh and visiting Professor of Criminology at the London
School of Economics, and was held under Chatham House rules. For that
reason, the opening remarks by the Professor Smith and the presentations by
Adam Crawford, Professor of Criminology at the University of Leeds and Sally
Ireland, Director of Criminal Justice Policy at JUSTICE, are the only remarks
attributed in these notes to the individuals who made them.
Chair’s introduction: Prof. David Smith
Twenty years ago the concept of antisocial behaviour, as it is widely
understood, did not exist. Yet it now describes a system for responding to
socially unacceptable behaviour that runs parallel to the conventional criminal
justice – and youth justice – system. Do we want to continue with the
development of an increasingly elaborate system for dealing with antisocial
behaviour, that is related but different to the criminal justice system, or do we
want to arrest its development and move back to something more like the
system that existed in 1990?
Prof. Adam Crawford
In the past ten to 15 years there has been a flurry of new powers and
developments concerning antisocial behaviour that make it hard to keep pace.
They have tended to emerge in a piecemeal, rather than strategic, manner.
The new powers have also tended to be ‘enforcement-led’ and coercive. Only
latterly has there been much discussion about applying more positive,
supportive measures. Questions are only now being asked about the
circumstances in which children and young people would be more likely to
comply with the prohibitions placed upon them and how best to facilitate
behavioural change. The evidence base concerning measures taken against
antisocial behaviour is weak and there has been a lack of evaluation.
Differences in practice
Research (by Crawford and Lewis) for the Nuffield Foundation has uncovered
widespread variations at local level in the approaches taken to tackle
antisocial behaviour, including the use of powers and specific interventions.
This has made it difficult to make comparisons between areas since the
statistics often reflect local preferences rather than differences in the level of
problems with ASB. There are also differences of approach within areas and
within organisations. The overall lack of joined-up practice is exacerbated by
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poor data collection resulting in an absence of standardised, good-quality
information. It is difficult to look across organisations to link up information
held about the same individuals and families. Significant challenges remain
regarding data exchange despite facilitating legislation. There are also
continuing tensions between national guidance and attempts to prescribe
local practice and what happens on the ground. Instead of trying to assess the
impact of its antisocial behaviour measures, central government has relied on
crude measures of ‘success’ – such as simple counts of the number of court
orders obtained.
The consultation paper and ‘localism’
The Home Office Consultation Paper More Effective Responses to Anti-Social
Behaviour tries to distance itself from centralised, top-down diktats, in favour
of local ‘empowerment’. This includes acknowledgement of a need for more
strategic thinking about interventions, and positive recognition of the part that
informal approaches and support services can play in working with families
and young people. But there are real problems associated with a localised ‘let
a thousand flowers bloom’ approach. Already there are different organisations
in the lead locally on ASB working with other providers, such as Registered
Social Landlords, in different ways and with different understandings of what
they are trying to achieve.
Misplaced assumptions
In addition, the antisocial behaviour agenda continues to be underscored by
two problematic assumptions:

the ‘broken windows’ theory, which argues that acts of minor vandalism
will consequentially lead to more widespread antisocial behaviour
unless checked, is treated as a matter of fact instead of the theoretical
conjecture originally advanced by its American authors

the treatment of crime and antisocial behaviour as a ‘zero-sum game’
between victims and offenders, so that attempts to treat offenders
respectfully are viewed to be an affront to the victims of crime and viceversa. The consultation paper talks about ‘rebalancing’ the relationship
between offenders and victims. Yet most offenders have also been
victims and most victims have offended at some stage in their lives.
The consultation paper appears to offer re-branding and tinkering with the
existing mechanisms, rather than genuine reform. It also includes a misguided
claim that the focus on long-term solutions in some Community Safety
Partnerships has been at the expense of timely action in the short-term.
Research suggests the opposite has been the case, with too much short-term
thinking at the expense of strategy. References in the consultation paper to
the use of restorative justice in measures against antisocial behaviour are
also unclear – especially with regard to the ‘justice’ element.
Dispersal powers
Research for the Joseph Rowntree Foundation on the existing Dispersal
Order has identified problems with the way that an individual’s presence in a
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specified area can provide the trigger for enforcement action. The consultation
paper proposes to replace the Dispersal Order (s.30 ASB Act 2003 and also
s.27 of the Violent Crime Reduction Act 2006) with a single direction power.
This would be dependent on actual behaviour, rather than ‘presence’. But it
would also remove the authorisation process, requiring police to produce an
analysis of the problems in the area they proposed to designate and consult
publicly. This would create a danger of what were intended to be exceptional
police powers becoming normalised, and could lead to real problems with
procedural justice.
Many of the benefits that derive from dispersal orders stem from the process
of seeking authorisation and the associated activities that are triggered, rather
than the powers as such. The authorisation process creates opportunities to
enhance police-community relations and provides openness and prior
accountability. It can also:

allow a rigorous examination of the evidence and consideration of
appropriate and proportionate responses

stimulate multi-agency problem-solving, triggering wider and longerterm preventive and diversionary strategies

foster community consultation and dialogue about appropriate use of
public space and the role of community in supporting social cohesion
and tolerance

reinforce the exceptional nature of the powers.
Two metaphors
The discussion of measures against ASB in the consultation paper is
dominated by two metaphors:

a regulatory ‘pyramid’, with a hierarchy of interventions that can be
triggered in order, one after another, if ASB persists. The consultation
paper notes that this escalatory approach risks prolonging the length of
time a victim or community has to suffer antisocial behaviour.

a ‘toolbox’, with the suggestion that reform should reduce the number
of tools available, while giving police and other agencies greater
discretion over their use.
Locally, research has highlighted tensions relating to hierarchies of
intervention and the seriousness of behaviour that triggers intervention. In
some areas quite low-level incivilities will lead to available approaches and
powers being used, while in others they are only applied following quite
serious antisocial behaviour.
In practice, neither metaphor accurately describes what happens on the
ground.
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Sally Ireland
Prior to the Home Office consultation paper being published, Theresa May,
the Home Secretary, highlighted statistics showing the declining use of
ASBOs and the increasing proportion of orders that were breached. Before
that, the election manifestos of both parties that subsequently formed the
coalition government promised to reform of the system for responding to
antisocial behaviour, including ‘instant’ police sanctions (Conservatives) and
the introduction of neighbourhood justice panels (Liberal Democrats). It is,
therefore, surprising that the consultation paper only proposes a
reorganisation of existing powers.
Criminal Behaviour Orders (CBOs) and Crime Prevention Injunctions (CPIs)
Although re-labelled, the proposed orders replicate, in essence, the existing
Criminal Anti-social Behaviour Order (CRASBO) and Anti-social Behaviour
Order (ASBO). There are some important differences proposed, however:

The Criminal Behaviour Order (attached to a criminal conviction) and
the Crime Prevention Injunction would be civil preventative orders. The
latter would be heard in the County Court (and possibly the Youth
Court) only requiring evidence that satisfied the civil standard of proof
(the balance of probabilities) rather than the criminal standard (beyond
reasonable doubt). This would circumvent the McCann judgement in
the House of Lords (R v Manchester Crown Court, ex p McCann [2002]
UKHL 39) where it was decided that applications for ASBOs must meet
the criminal standard of proof.

ASBOs only contain prohibitions, and use of the Individual Support
Order (ISO), imposing positive requirements, has been patchy. The
new orders will include positive requirements to the extent that children
and young people could have packages of measures imposed on them
that are very similar to those of a community sentence if they had been
prosecuted, to a higher standard of proof, in the criminal courts. There
could, as a consequence, be little incentive to prosecute minor crime in
future. The CPI could also result in a major extension of police
discretion deciding whether cases are referred to the Crown
Prosecution Service or pursued through a civil order.

CPIs and ‘injunctions against gang-related violence’ (the latter were
created by the Policing and Crime Act 2009) arise from another ruling
in which the courts rejected a local authority’s attempt to use its
existing power to seek an injunction in the public interest to tackle
gang-related violence in Birmingham (Birmingham City Council v Shafi
and Ellis [2008] EWCA Civ 1186) The court held that it was not a
proper use of the local authority’s powers to apply for an injunction in
cases where an ASBO could be used (except perhaps in exceptional
circumstances).
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Use of civil law
It could be argued that use of the CPI as an alternative to prosecution carries
the advantage of not criminalising children and young people. Breach of an
order would place them in contempt of court, but would not carry a criminal
record. However, the potential penalties for breach include ‘detention’. This
raises the prospect of children and young people being placed in custody
without having committed any criminal offence.
Traditionally, children have been afforded special protection and safeguards
in civil law (including their own representative in Family Court proceedings).
Contracts cannot generally be enforced against children and children cannot
normally be detained for contempt of court. Enforcing breaches by children
and young people of ASBOs and similar orders and injunctions has required
special provisions in legislation and is an erosion of the traditional protections.
Positive requirements
The consultation document allows for the possibility that applications for the
orders could be heard in the Youth Court where the magistrates – unlike the
County Court – have experience in assisting children and their families with
different types of intervention. However, the document doesn’t say much
about the intended introduction of positive requirements. Their use may prove
problematic as a consequence of the current squeeze on local authority
budgets. This is likely to affect the supply and availability of treatment and
other programmes, and make it unlikely that local authorities will apply for
orders or seek conditions that carry significant budgetary implications. They
will be more inclined to ask for conditions like curfews and exclusion orders
that the police, not local authorities, are expected to enforce.
Criminal Behaviour Orders
So-called CRASBOs are the most frequently used type of antisocial behaviour
order and have become especially popular in the Crown Court as a way of
imposing post-conviction restrictions (such as restrictions on animal rights
protestors to prevent them participating in demonstrations). The proposed
CBO could also be used in serious cases, for example to impose movement
and association restrictions on children and young people convicted of ‘gang’
offences following their release from custody. The orders could include all the
conditions imposed on offenders released from custody under licence.
CRASBOs can be imposed indefinitely; if CBOs are used for children it is
essential that they are regularly reviewed.
Crime Prevention Injunctions
There is an existing role for injunctions to restrain civil wrongs committed by
individuals against the community, including trespass, harassment and
nuisance behaviour. It can, however, be difficult for individuals to take
proceedings against others to redress civil wrongs, especially where they face
intimidation. In those circumstances, there is nothing wrong in principle with a
local authority using its powers to take civil action on their behalf. The difficulty
with the existing and consultation provisions is that the definition of ‘antisocial
behaviour’ is exceedingly wide, extending from non-criminal nuisance
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behaviour to quite serious criminal offences. The list of prohibitions that can
be imposed under existing ASBOs is also remarkably wide and unspecific.
In the case of children and young people, there are particular objections to the
proposed use of civil orders:

children’s ability to participate in the proposed procedures would be
limited (it is scarcely mentioned in the consultation paper, apart from a
nod towards possible use of the Youth Court, rather than the County
Court)

the proceedings would, like ASBOs, be public unless the court orders
reporting restrictions, turning the normal presumption of privacy for
children in court proceedings on its head

if the resulting civil order is to contain similar provisions to a Youth
Rehabilitation Order under criminal law, then there is a strong case for
insisting that the proceedings should be criminal rather than civil.
Police and Crime Commissioners
The elected Police and Crime Commissioners proposed by the Government
will have extensive powers over Chief Constables. They can be expected to
put them under pressure to deal with antisocial behaviour and make extensive
use of the proposed powers against children and young people. Police will
increasingly become the gatekeepers who decide whether children and young
people should face court proceedings, rather than Crown Prosecutors. This is
cause for considerable concern.
Discussion points
The consultation paper
 The Home Office is seeking a genuine consultation and its proposals
deliberately do not have their ‘i’s dotted or their ‘t’s crossed. It is open
to suggestions and there is genuine scope for change.

Many criticisms of the existing system for tackling antisocial behaviour
are shared by the Government. These include the limited evidence
base concerning effectiveness and differences in local practice. The
proposals for positive requirements are a direct acknowledgement of
the views of practitioners about what is needed.

It is disappointing that the Home Office paper does not address the
particular circumstances of children and families – and surprising given
the Government’s stated interest in those policy areas.

We should welcome the willingness of the Home Office to seek public
help in developing policy, but there is some concern over the extent to
which Ministers have already made up their minds.
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
The consultation paper is a missed opportunity and provides a classic
example of officials tinkering around on the edges of an existing policy,
changing only some of the existing powers and definitions. We should
not be consolidating an area of policy that is so lacking in evidence and
was never very well developed in the first place.
Different perspectives on ‘antisocial behaviour’
 The case of Fiona Pilkington (the Leicestershire mother who killed
herself and her severely disabled daughter in 2007 after years of
intimidation and abuse), demonstrated how repeated ‘low-level’
antisocial behaviour could have very serious consequences. Would the
reforms proposed in the consultation paper do anything to make a
future Pilkington case less likely?

The Pilkington case represented a watershed. Rather than thinking of
victims and perpetrators as a ‘zero sum game’, the consultation paper
tries to reflect what it feels like to be on the receiving end of antisocial
behaviour.

It would be folly to base antisocial behaviour policy on an exceptional
tragedy – such as the Pilkington case. This was demonstrated by the
bureaucratic overreaction resulting from the Bichard Report, which
called for extensive criminal record checks following the Soham murder
case.

There is always a danger in dealing in worst case scenarios (‘things
might happen’)

The concept of antisocial behaviour is too vague and diffuse to provide
a clear understanding of what the current and proposed measures are
trying to stop. Ideas about ASB are bound to vary between locations. In
the Pilkington case it related to a pattern of clear personal threats that
was not picked up. But in an affluent suburb, perceptions of what
constitutes ASB could be very different.

The police don’t want to criminalise young people, but they do have to
deal with extreme cases. Officers also have to contend with issues on
the ground that make it more difficult for them to respond. For example,
people who are victims become frightened and may tell the police that
they don’t want them to take action, even though they’ve reported
what’s happened to them.

You don’t need to deal with problems with all guns blazing in all
circumstances. Sometimes what communities want is quiet
intervention.

The criminal law is not good at dealing with patterns of antisocial
behaviour that develop over a long period. But it should be possible to
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make the criminal law more effective, rather than follow the route taken
in 1997.

It would be very difficult to put the genie back in the bottle after such a
proliferation of orders against antisocial behaviour in the past 13 years.

We need to think more carefully about what we mean by ‘seriousness’
of behaviour and offending, their cumulative nature, and how we
respond to them in law. We should also pay closer attention to what
constitutes a proportionate or disproportionate response.

Although other countries, notably Ireland and the Netherlands, have
shown interest in the British concept of ASB, the UK’s approach can
still be seen as something of an outlier within Europe.
The proposed orders
 It is hard to see how the proposals will simplify the existing system. The
provisions under the proposed CPI are the type of measures that could
also be imposed through the youth justice system in a Youth
Rehabilitation Order (YRO). Children won’t understand the difference.

A CPI could also end up being be imposed for minor offences that, if
police went through the criminal system, would never get to court.

The proposed Crime Prevention Injunction (CPI) has been designed as
a genuinely civil procedure that won’t provoke human rights
challenges. It is not trying to circumvent the McCann ruling or produce
something that looks like an ASBO, but passes the civil evidence test.

The lack of any review mechanism for requirements imposed under the
proposed CBO is worrying, especially in relation to children and young
people. One option would be a ‘sunset’ clause where requirements
would lapse after a year unless action was taken to renew them.
Another would be to allow the recipient to apply for review after a year.

There is practically no evidence that any self-respecting social scientist
would recognise that these interventions work to reduce antisocial
behaviour.
Children’s welfare and rights
 Policy on antisocial behaviour must distinguish appropriately between
children and adults and must also be more carefully joined-up with
policing, housing, children’s services and other areas of policy affecting
children and families.
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
Children and young people held responsible will be at very different
stages in terms of age and maturity there is danger that the proposals
will lead to a standardised response.

The existing legislation has drawn us into a policy cul-de-sac where
one size is expected to fit all.

The consultation proposals don’t address long-standing human rights
concerns. Disproportionately, four out of ten ASBOs have been
imposed on children and young people under 18. The Youth Justice
Board has not published any systematic data on their use with children.

The existing system has been subject to strong criticism from
international and domestic human rights bodies. As with the McCann
(2002) case, the proposed orders could be open to challenge that the
standard of proof ought be criminal, rather than civil. However, it would
be likely that the domestic courts and the European Court of Human
Rights to conclude that the new orders were civil in character. In
addition, the new Supreme Court in London was less liberal in outlook
than the House of Lords at the time of McCann.

A rights-based approach to youth justice questions the need for a
parallel system of orders against antisocial behaviour. It also suggests
that the welfare system is best placed to attend to children who commit
offences, rather than bringing more children into contact with the
criminal justice system. Only welfare solutions can change things for
families for the better.

The measures against antisocial behaviour (ASB) are draconian and
lack any requirement to look at what children actually need. It is
extraordinary that we consider subjecting children and young people to
the current and proposed procedures without making an assessment of
their welfare needs.

Instead of telling vulnerable children and young people to somehow
‘pull their socks up’, our criticism should be more strongly directed at
the bodies with a statutory duty to support children who don’t fulfil it.

There is existing discretion for YOTs to use the ASSET risk and needs
assessment instrument with children and young people facing
enforcement action against antisocial behaviour.
Early intervention and restorative justice
 While it is clear that repeat and vulnerable victims have not been
picked up under the existing system, it is also true that offenders with
behaviour problems have not been picked up in a way that could
trigger early intervention.
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
We should be responding to children with behaviour problems
preventively, from early childhood, through community support. This is
nowhere near the kind of formal response that’s envisaged in the
consultation paper.

ASBOs and Dispersal Orders have pushed children and young people
into areas where they are even more at risk than they were before. If
we are going to have a preventive agenda, it had better prevent.

Greater emphasis on early intervention and the use of some elements
restorative justice that would make it possible to nip more of the
problems that arise in the bud. Effective early intervention and
prevention requires joint analysis between the police and other
agencies and joint working.

The use made of restorative justice in Northern Ireland is impressive.
One aspect that is insufficiently understood is that the results of the
youth conferences have to be endorsed by either a prosecutor or a
district judge to ensure proportionality. The cost of the Northern
Ireland’s system may have ruled it out as too expensive a model for
England and Wales, but we have got to learn from it.
Local decision-making and discretion
 The consultation paper offers a discretionary toolbox. Its aim is to equip
practitioners with the right tools and the necessary latitude and
flexibility to deal with problems they see on the ground.

The Government is keen to promote local decision-making and control
and Ministers accept that variations in practice will occur as a
consequence.

Local practice variations revealed by the Leeds University’s research
included a contrast between one area where action was taken against
children and young people throwing snowballs at the general public,
using rude hand gestures or swearing in the street and another where
orders were only sought against serious ASB, bordering on the
criminal, such as fire setting and drug possession.

The consultation document proposals could make it more likely that
action is taken against ‘juvenile high spirits’ by altering the threshold
from behaviour likely to cause ‘harassment, alarm or distress’ to
‘nuisance or annoyance’.

We could see proceedings being taken against children and young
people in some parts of the country for behaviour that in other parts of
the country is regarded as pretty ‘normal’.
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
Politicians say they are moving away from the arms race to sound less
punitive, but there is a real danger that the political ‘arms race’ on
youth crime will be relocated from Whitehall to local areas where the
candidates for local Police and Crime Commissioner will campaign on
these issues.

In relation to Police and Crime Commissioners, it is important to learn
from the experience of 2002 to 2006 when the relevant unit at the
Home Office measured success in tackling antisocial behaviour in
terms of the number of ASBOs that were sought and berated police
forces that had not made much use of them. Chief Constables who
regarded ASBOs as a sign of failure took a tremendous amount of
stick.
Spending reductions and their impact
 Practitioners have made strong representations to Ministers about the
potential difficulties in making positive programmes available at a time
of budget constraints.

The Government’s aim is to provide support where local authorities
think they need it, but to avoid any situation where a court could require
a local area to provide services. Traditionally, local authorities have
been regarded as the providers of support programmes, but there are
other positive ways of making provision that don’t necessarily cost
extra money – for example, requiring someone with mental health
problems to register with a GP.

The existing powers against antisocial behaviour have been used to
shore up failings in the existing system as varied as the management
of neighbour/tenancy disputes, the response to children ‘in need’ of
welfare services (under Section 17 of the 1989 Children Act) and
indiscipline among children travelling to and from school. Cuts in public
spending are making the problems more acute, creating a risk that
enforcement measures will be viewed as cheaper that welfare and
treatment packages.

The youth service is being more than decimated, depriving us of a
huge part of the previously existing workforce that would otherwise
have been available for positive interventions.

Discipline in schools is starting to mirror the approach taken to
antisocial behaviour with teachers being encouraged to ‘discipline more
and understand less’. The institutions for dealing with children’s
negative behaviour are becoming more punitive, while local authorities
are having money taken off them to use to wrap around schools.
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David Utting
Secretary to the Independent Commission
April 2011
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