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The use of ASBOS against young people in England and Wales: lessons from Scotland

Published online by Cambridge University Press:  02 January 2018

Stuart Macdonald  and
Mark Telford
Stuart Macdonald
Affiliation:
Swansea University
Mark Telford
Affiliation:
University of Southampton
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Abstract

The Anti-Social Behaviour Order (ASBO) is one of the best known measures used to tackle anti-social behaviour. In keeping with the popular conception, the order is frequently used against young people. Of all ASBOs issued in England and Wales up to the end of 2005, roughly 40% were imposed on under-18s. This paper begins with a brief outline of the three principles at the heart of the celebrated Scottish children’s hearings system. With reference to these principles, and to the provisions which govern the use of the order against 12–15 year olds north of the border, the paper then discusses five areas of concern about the use of ASBOs against young people in England and Wales: the readiness to resort to ASBOs; the forum for ASBO applications; the terms of ASBOs; publicising the details of ASBOs; and custodial net-widening. The paper ends by suggesting reforms to the ASBO regime in England and Wales insofar as it is used against young people.

Type
Research Article
Information
Legal Studies , Volume 27 , Issue 4 , December 2007 , pp. 604 - 629
Copyright
Copyright © Society of Legal Scholars 2007

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References

Notes

1. In England and Wales, information on the age of the recipient is available for 9544 of the 9853 ASBOs issued to the end of 2005. Of these 9544, 3997 (41.88%) were imposed on 10–17-year-olds, and 5547 (58.12%) were imposed on those aged 18 and over (figures from Home Office website).

2. Crime and Disorder Act 1998 (CDA), s 1(1); Antisocial Behaviour etc (Scotland) Act 2004 (ASB (Scotland) Act), ss 4(2) and 143(1). The term ‘relevant persons’ essentially means those people within the area covered by the agency applying for the ASBO (CDA, s 1(1B); ASB (Scotland) Act, s 4(13)).

3. ASB (Scotland) Act, s 18; CDA, s 1(1A).

4. ASB (Scotland) Act, s 4(1). An ASBO can also be imposed following a criminal conviction in the Sheriff Court (Criminal Procedure (Scotland) Act 1995, s 234AA). As far as under-16 s are concerned, the post-conviction ASBO should prove to be less significant in Scotland than in England and Wales because of the relatively small numbers of children prosecuted in the ordinary criminal court system. Children’s hearings, which deal with the vast majority of juvenile criminal cases in Scotland, do not have the power to impose ASBOs.

5. CDA, ss 1(3), 1B and 1C.

6. ASB (Scotland) Act, s 7; CDA, s 1D.

7. ASB (Scotland Act), ss 4(6) and 4(7); CDA, s 1(6). In England and Wales an ASBO may only be discharged during its first 2 years if both the applicant for the order and the subject of it consent; thereafter either the applicant or the subject may apply for it to be varied or discharged (CDA, ss 1(8) and 1(9)). In Scotland the applicant for the order and the subject of it may apply for it to be varied or revoked at any time (ASB (Scotland) Act, s 5).

8. ASB (Scotland) Act, ss 4(6) and 4(7); CDA, s 1(6).

9. ASB (Scotland) Act, s 9(1); CDA, s 1(10).

10. CDA, s 1(1).

11. Hansard HC Deb, vol 314, col 871, 23 June 1998. Opposition amendments to limit the availability of ASBOs to those aged 16 and over were nonetheless rejected, on the basis that this would have created a gap in the measures available to deal with so-called families from hell. Such families – described as those in which the adult members not only commit anti-social behaviour themselves, but also use the younger members as ‘deliverers’ of some of this behaviour – were to be dealt with using ASBOs in the case of those aged 10 and over, and Child Safety Orders in the case of those aged under 10 (col 869).

12. Home Office Draft Guidance Document: Anti-Social Behaviour Orders (London: Home Office, 1998)Google Scholar paras 3.5 and 3.10.

13. Burney, E Talking tough, acting coy: what happened to the Anti-Social Behaviour Order?’ (2002) 41 Howard Journal of Criminal Justice 469 at 473–474.CrossRefGoogle Scholar

14. Home Office Anti-Social Behaviour Orders – Guidance (London: Home Office, 1999)Google Scholar para 2.1.

15. ASB (Scotland) Act, s 4(2)(a).

16. CDA, s 19.

17. Hansard HC Deb, vol 314, col 878, 23 June 1998.

18. Hansard HC Deb, vol 314, col 880, 23 June 1998.

19. This paper does not evaluate the existing definition of ‘anti-social behaviour’. For discussion of this definition, and suggestions for how it could usefully be reformed, see Macdonald, S ‘A suicidal woman, roaming pigs and a noisy trampolinist: refining the Asbo’s definition of “anti-social behaviour”’ (2006) 69 MLR 183.CrossRefGoogle Scholar

20. Kilbrandon Committee Report on Children and Young Persons, Scotland Cmnd 2306, 1964.

21. Ibid, para 71.

22. The grounds of referral are contained in Children (Scotland) Act 1995, s 52(2).

23. Ibid, s 56(6).

24. If the ‘ground of referral’ is not accepted, the issue will be determined in the Sheriff Court, with its panoply of due process protections (ibid, s 68).

25. Ibid, s 70.

26. Ibid, s 16(2).

27. Eg Squires, P. and Stephen, D. Rougher Justice: Anti-Social Behaviour and Young People (Devon: Willan Publishing, 2005).Google Scholar

28. Eg Hallet, C. and Murray, C. The Evaluation of Children’s Hearings in Scotland Vol 1 Deciding in Children’s Interests (Edinburgh: Scottish Office Central Research Unit, 1998);Google Scholar

29. Eg Tyler, T. Why People Obey the Law (New Haven: Yale University Press, 1990);Google Scholar

30. Eg Becker, H. Outsiders: Studies in the Sociology of Deviance (London: Macmillan, 1963);Google Scholar

31. Recent empirical evidence from the longitudinal Edinburgh Study of Youth Transitions of Crime shows that young people who were processed by the juvenile justice system were more likely to persist in their offending than those who offended at a similar level but who were not caught (DJ Smith Social Inclusion and Early Desistance from Crime (Edinburgh, Centre for Law and Society, University of Edinburgh, 2006)).

32. Eg Morris, A. and McIsaac, M. Juvenile Justice?: The Practice of Social Welfare (London: Heinemann Educational, 1978).Google Scholar

33. Children (Scotland) Act 1995, s 16(3).

34. The importance of the diversionary role of the Reporter is underlined by research evidence which suggests that the police tend to trigger formal intervention against young people on the basis of stereotypical class biased judgments concerning their ‘respectability’ as well as more objective evaluations of behaviour ( McAra, L and Mcvie, S ‘The usual suspects? Street-life, young people and the police’ (2005) 5 Criminal Justice 5Google Scholar).

35. In 2005/2006 a children’s hearing was arranged to consider the imposition of compulsory measures of supervision in respect of only 13% of children referred to the Reporter on offence grounds. For 16% of children referred, no hearing was arranged because compulsory measures were already in place but the other children’s cases were disposed of in some other, more informal, way (Scottish Children’s Reporter Administration Annual Report 2005/2006 (Edinburgh: Scottish Children’s Reporter Administration, 2006) p 33).

36. In 2005/2006 a supervision requirement was imposed or an existing requirement reviewed in 75% of cases referred to a hearing on offence grounds, the other cases were discharged (ibid, p 35).

37. Kilbrandon Committee, above n 20, para 13. Empirical research bares out the committee’s assumptions as it has been found that the similarities in the backgrounds and circumstances between children referred to the children’s hearings system on offence grounds and those referred for other reasons far outweigh the differences (L Waterhouse et al , above n 28).

38. Children (Scotland) Act 1995, s 16(1). It should be noted that s 16(5) of the 1995 Act provides that a hearing may make a decision which is not consistent with the welfare of the child if it is deemed necessary to protect the public. This represents the first substantive encroachment upon what had hitherto been the undisturbed predominance of the welfare criterion.

39. Lockyer, A. and Stone, Fh Juvenile Justice in Scotland: Twenty-Five Years of the Welfare Approach (Edinburgh: T & T Clark, 1998) p 18.Google Scholar

40. L McAra ‘The cultural and institutional dynamics of transformation: youth justice in Scotland, England and Wales’ (2004) 35 Cambrian Law Review 23.

41. CDA, ss 65–66.

42. Ibid, s 1E.

43. Home Office A Guide to Anti-Social Behaviour Orders (London: Home Office, 2006) p 21.Google Scholar See also the guidance jointly issued by the

44. Memorandum submitted to the Home Affairs Committee inquiry Anti-Social Behaviour Fifth Report of Session 2004-05, HC 80 (London: TSO, 2005) vol III, Ev 219.

45. Ibid, vol I, para 137.

46. Solanki, A. et al Anti-Social Behaviour Orders (London: Youth Justice Board, 2006) pp 52–53.Google Scholar This study also found that YOTs are consulted even more infrequently prior to applications for post-conviction and interim ASBOs (pp 54–55).

47. R Morgan ‘Anti-social behaviour: getting to the root of the problem’ (2005) 23(1) Howard League Magazine 13.

48. A Solanki et al , above n 46, p 130.

49. Reg Denley, Programme Manager, Youth Works Scheme, Bridgend (oral evidence to the Home Affairs Committee inquiry, above n 44, vol III, Q 75). For further information on Acceptable Behaviour Contracts, see Home Office A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts (London: Home Office, 2003).Google Scholar

50. A Solanki et al , above n 46, chs 5, 10 and 13.

51. See further Cleland, A. and Tisdall, K. The challenge of antisocial behaviour: new relationships between the state, children and parents’ (2005) 19 International Journal of Law, Policy and the Family 395 at 405–406.CrossRefGoogle Scholar

52. Eg, there are reports that the Scottish Executive’s Justice Minister has threatened to withhold funding from councils failing to make sufficient use of enforcement powers like the ASBO (P Macmahon ‘Use ASBOs or no cash to fight crime, councils told’ The Scotsman 10 May 2005). The influential Labour leader of Edinburgh City Council has also said that ‘ASBOs are supposed to be a last resort for under-16 s, but what we really want is early ASBOS because that acts as a warning’ (I Swanson ‘Move to fast-track ASBOs for teenage yobs in the Capital’ Edinburgh Evening News 28 February 2006).

53. ASB (Scotland) Act, ss 4(11)(a) and 18.

54. Ibid, s 7(3).

55. Ibid, s 4(4).

56. Scottish Executive Antisocial Behaviour etc (Scotland) Act 2004: Guidance on Antisocial Behaviour Orders (Edinburgh: Scottish Executive, 2004) para 16.

57. Ibid, para 54.

58. DTZ Consulting and Heriot Watt University Use of Antisocial Behaviour Orders in Scotland: Report of the 2005/6 Survey (Edinburgh: Scottish Executive, 2006).Google Scholar

59. Home Office Criminal Justice Act 1991: Young People and the Youth Court Circular (London: Home Office, 1992).Google Scholar One of the differences referred to is that the 1991 Act brought 17-year-olds within the youth court’s jurisdiction (Criminal Justice Act 1991, s 68).

60. Powers of Criminal Courts (Sentencing) Act 2000, ss 90–91.

61. V & T v United Kingdom (2000) 30 EHRR 121.

62. [2000] 2 All ER 285.

63. Concluding Observations: United Kingdom of Great Britain and Northern Ireland CRC/C/15/Add 188 (Geneva: Centre for Human Rights, 2002) paras 60–62.

64. Fionda, J. Devils and Angels: Youth Policy and Crime (Oxford: Hart, 2005) p 139.Google Scholar

65. Fortin, J. Children’s Rights and the Developing Law (London: Butterworths, 2nd edn, 2003) p 565.Google Scholar

66. Although the youth court does hear applications for post-conviction ASBOs (as does the Crown Court).

67. Above n 43, p 16 and ch 9.

68. ASB (Scotland) Act, s 4(10). The move has attracted criticism – see Cleland and Tisdall, above n 51.

69. Johnston, L and Shearing, C. Governing Security: Explorations in Policing and Justice (London: Routledge, 2003).Google Scholar‘Communities’ are, of course, not invariably benign and the state has a crucial role in ensuring that key fundamental values such as legality, equality and equity are maintained in the rush to empower communities (see, eg,

70. ‘There is no explicit provision for any representations made by or on behalf of the respondent before an interim ASBO is granted, although the court, using its discretion, can consider any such representations as it sees fit’ (Scottish Executive, above n 56, para 86).

71. A Ashworth ‘Social control and “anti-social behaviour”: the subversion of human rights?’ (2004) 120 LQR 263.

72. R Savill ‘Woman banned from jumping in the river’ The Daily Telegraph 26 February 2005; ‘Bird lover gets Asbo for feeding pigeons’ The Times 31 July 2006.

73. D Aitkenhead ‘When home’s a prison’ The Guardian Weekend 24 July 2004; J Freer and R Preece ‘Sweethearts banned from seeing each other’ Plymouth Evening Herald 3 February 2005.

74. Amongst the prohibitions which the appeal courts have held to be invalid are: ‘In any public place, wearing, or having with you anything which covers, or could be used to cover, the face or part of the face. This will include hooded clothing, balaclavas, masks or anything else which could be used to hide identity, except that a motorcycle helmet may be worn only when lawfully riding a motorcycle’ (R v Boness [2005] EWCA Crim 2395, [2006] 1 Cr App R (S) 120); ‘Not to be a passenger in or on any vehicle, whilst any other persons is [sic] committing a criminal offence in England or Wales’ (W v Acton Youth Court [2005] EWHC 954 (Admin), (2006) 170 JP 31); and ‘Not to be in possession of any bladed article’ (R v Starling [2005] EWCA Crim 2277). Some general guidance on drafting the terms of ASBOs is set out in the judgment of Hooper LJ in R v Boness, and in chapter 7 of the Home Office guidance (above n 43).

75. See also S Macdonald ‘ASBO prohibitions and young people – Hills v Chief Constable of Essex Police’ (2007) 19 CFLQ (forthcoming).

76. Above n 43, p 29.

77. Solanki et al , above n 46, p 141.

78. Ibid, p 75.

79. Above n 43, ch 7.

80. Above n 74, para [36].

81. ASB (Scotland) Act, s 4(6); CDA, s 1(6).

82. It should be noted that, since a children’s hearing can make a decision which is not consistent with the welfare of the child if it is necessary to protect the public from serious harm (above n 38), an ASBO could conceivably be imposed through an application of this exception to the general rule that the child’s welfare is paramount.

83. National Association of Probation Officers ‘Anti-Social Behaviour Orders – analysis of the first six years’ Memorandum submitted to the Home Affairs Committee inquiry, above n 44, vol III, Ev 185. In a similar vein, ASBOs have been imposed which include a curfew that stopped a young person from getting employment opportunities because he could not get to work early enough, and which prohibited a young person from entering any motor vehicle, thereby preventing him from accepting lifts from staff of the local Youth Offending Team to Positive Activities schemes and from getting on a probation minibus to take him to do his community service (Memorandum submitted by the YJB to the Home Affairs Committee inquiry, ibid, vol II, Ev 143). Fully involving the local YOT in the process of applying for an ASBO would help prevent counter-productive prohibitions of the sort described.

84. See Matthews, H., Limb, M. and Taylor, M. The “street as thirdspace” ’ and T Skelton ‘Nothing to do, nowhere to go?’ in Holloway, S and Valentine, G. (eds) Children’s Geographies: Playing, Living, Learning (London: Routledge, 2000).Google Scholar

85. Above n 46, pp 142 and 148.

86. Clayton, R and Tomlinson, H. The Law of Human Rights (Oxford: Oxford University Press, 2000)Google ScholarPubMed para 6.47. For examples, see Campbell v United Kingdom (1992) 15 EHRR 137 para 48 and Ahmed v United Kingdom[1999] IRLR 188 para 63.

87. ASB (Scotland) Act, s 4(5).

88. CDA, s 1(7).

89. Above n 44, vol I, para 222.

90. R (Lonergan) v Lewes Crown Court [2005] EWHC 457 (Admin), [2005] 2 All ER 362 at [13].

91. Above n 43, p 45.

92. Above n 46, pp 73 and 141.

93. Above n 44, vol I, para 87. The findings of the YJB were similar (above n 46, ch 4).

94. Ibid, vol I, para 224.

95. Burney, E Making People Behave: Anti-Social Behaviour, Politics and Policy (Cullompton: Willan Publishing, 2005) p 157.Google Scholar

96. ASB (Scotland) Act, ss 7(3) and 4(4) respectively.

97. Ibid, s 12.

98. In addition to the ISO provisions, CDA, ss 8–9, provide that any court imposing an ASBO on a child aged under 16 must also issue a Parenting Order or explain why a Parenting Order would not be desirable in the interests of preventing repetition of the anti-social behaviour. For 16- and 17-year-olds the court may make a Parenting Order if it considers that an order would help prevent repetition of the behaviour. On the subject of Parenting Orders, see L Koffman ‘The use of anti-social behaviour orders: an empirical study of a new deal for communities area’ [2006] Crim LR 593 and J Lyon, C Dennison and A Wilson ‘Tell them so they Listen’: Messages from Young People in Custody Home Office Research Study 201 (London: Home Office, 2000).

99. Anti-social Behaviour: A Guide to the Role of Youth Offending Teams in dealing with Anti-Social Behaviour, above n 43, p 27.

100. Note that a court making a post-conviction ASBO cannot issue an ISO, the rationale being that the sentence imposed for the criminal offence should tackle the underlying causes of the anti-social behaviour.

101. The statutory framework governing ISOs is found in CDA, ss 1AA and 1AB.

102. See the report of the Home Affairs Committee, above n 44.

103. Above n 46, pp 70 and 143.

104. [2002] UKHL 39, [2003] 1 AC 787.

105. The three criteria are the classification in domestic law; the nature of the offence; and the nature and degree of severity of the penalty (Engel v The Netherlands (No 1) (1979–80) 1 EHRR 647).

106. At paras [75]–[76].

107. The Home Office gave this as a reason for rejecting arguments that it should be possible to impose an ISO for a longer period than 6 months (Supplementary memorandum submitted by the Home Office to the Home Affairs Committee inquiry, above n 44, vol III, Ev 171).

108. Following the creation of the Intervention Order (CDA, ss 1G–1H), similar logic could also now apply to ASBOs against adults.

109. For an argument that the hybrid nature of the ASBO means that the Lords in McCann should have classified it as criminal in nature, see S Macdonald ‘The nature of the Anti-Social Behaviour Order – R (McCann & Others) v Crown Court at Manchester’ (2003) 66 MLR 630.

110. Children and Young Persons Act 1933, s 49. This presumption is reversed where a child is tried in the Crown Court (R v Central Criminal Court, ex p W [2001] 1 Cr App R 2).

111. UNCRC, Art 40(2)(b)(vii); United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), r 8.

112. Children and Young Persons Act 1933, s 39. Where a child is convicted of a criminal offence in the youth court and a post-conviction ASBO is imposed, the presumption of anonymity is reversed in those parts of the proceedings concerned with the making of the order (CDA, s 1C(9C)). The presumption in favour of anonymity is also reversed where a child is prosecuted for breach of an ASBO (CDA, s 1(10D)), the rationale being to ‘allow local communities to be involved in the justice system by ensuring that breaches of antisocial behaviour orders can be publicised, so that people can see who is doing what and where it is being done’ (David Blunkett Hansard HC Deb, vol 428, col 1059, 7 December 2004).

113. [2002] EWHC 1129 (Admin). In a similar vein, the High Court in R (K) v Knowsley Metropolitan Borough Council [2004] EWHC 1933 (Admin), [2005] HLR 3 rejected the argument that there should be a presumption in favour of anonymity at proceedings for the imposition of an interim ASBO. Harrison J explained ‘that the interim nature of the proceedings, which do not involve any findings on the allegations, is a very important consideration to put into the balance so that it can be balanced against the undoubtedly important consideration… relating to publicity assisting in the effectiveness of enforcing the interim order’ (at para [44]).

114. Ibid, at para [22].

115. Working Together – Guidance on Publicising Anti-Social Behaviour Orders (London: Home Office, 2005) p 4.

116. Children (Scotland) Act 1995, s 44(1).

117. Ibid, s 44(5).

118. Ibid, s 16(1).

119. Ibid, s 16(5).

120. B Ferguson ‘We’ll shame young thugs’ Edinburgh Evening News 17 January 2006.

121. Above n 56, para 120.

122. Above n 115, p 2.

123. D Garland ‘The Limits of the Sovereign State: Strategies of Crime Control in Contemporary Society’ (1996) 36 Brit J Criminol 445.

124. Rutherford, A. Criminal Justice and the Eliminative Ideal’ (1997) 31 Social Policy and Administration 116.CrossRefGoogle Scholar

125. Braithwaite, J. Crime, Shame and Reintegration (Cambridge: Cambridge University Press, 1989).CrossRefGoogle Scholar

126. Above n 46, ch 9.

127. The Sun 22 April 2004, Daily Mail 4 May 2004, Daily Mirror 31 August 2004 & Liverpool Daily Post 20 January 2005 respectively.

128. [2004] EWHC 2229 (Admin), [2005] HLR 8.

129. Ibid, at [40].

130. Powers of Criminal Courts (Sentencing) Act 2000, s 100. For all other under-18 s breach is punishable with a community penalty. Note also that a conditional discharge is not an available disposition for breach of an ASBO (CDA, s 1(11)).

131. ASB (Scotland) Act, s 10, amending the Criminal Procedure (Scotland) Act 1995.

132. Audit Commission Youth Justice 2004: A Review of the Reformed Youth Justice System (London: TSO, 2004) p 35.

133. YJB Annual Review 2003/04 – Building in Confidence (London: YJB, 2004) p 4.

134. Above n 47.

135. Above n 43, p 48. Earlier versions of the guidance contained similar statements. Significantly, the Youth Court Bench Book (London: Judicial Studies Board, 2006) states that ‘Breach of an order is a serious criminal offence and should be tackled quickly and effectively’, and then qualifies this: ‘It is not always necessary to impose a custodial sentence for breach of an ASBO, especially where the original behaviour for which the ASBO may have been imposed was not sufficiently serious to carry a custodial sentence’ (p 1-52; emphasis added).

136. R v H, Stevens & Lovegrove [2006] EWCA Crim 255, [2006] 2 Cr App R (S) 453. For discussion of this aspect of the ASBO, see S Macdonald ‘The principle of composite sentencing: its centrality to, and implications for, the ASBO’ [2006] Crim LR 791.

137. See T Donovan ‘Antisocial orders come under fire’ Young People Now 28 April 2004 and the memorandum submitted by the YJB to the Home Affairs Committee inquiry, above n 44, vol II, Ev 143.

138. The findings are contained in the supplementary memorandum submitted to the Home Affairs Committee inquiry, above n 44, vol III, Ev 217. The YJB warned that the sample size for the study was relatively small and that the study had methodological limitations. Its more recent study stated that it was impossible to ascertain, from the available data, ‘whether the ASBO, and any subsequent breaches, exacerbated the risk of custody over and above what would have been expected from further offending in any event’ (above n 46, pp 113–114).

139. Oral evidence to the Home Affairs Committee inquiry, above n 44, vol III, Q 450.

140. Children (Scotland) Act 1995, s 70.

141. ASB (Scotland) Act, s 135, amending Children (Scotland) Act 1995, s 70.

142. A Rutherford ‘Youth justice and social inclusion’ (2002) 2 Youth Justice 100.

143. A children’s hearing can only authorise the placing of a child in secure accommodation if either the child, having previously absconded, is likely to abscond unless kept in secure accommodation and if he absconds, it is likely that his physical, mental or moral welfare will be at risk; or the child is likely to injure him or herself or some other person unless kept in such accommodation (Children (Scotland) Act 1995, s 70). Moreover, the s 16 ‘minimum intervention’ and ‘welfare’ principles are applicable to secure accommodation decisions.

144. See, eg, A Rutherford Growing out of Crime: The New Era (Winchester: Waterside, 1992). Note that there are emerging signs of divergent approaches to childrens’ rights in England and Wales – see J Williams ‘Incorporating children’s rights: the divergence in law and policy’ (2007) 27 LS 261.

145. See, eg, Bottoms, Ae, Haines, K. and O’Mahony, D. ‘Youth justice in England and Wales’ in Mehlbye, J. and Walgrave, L (eds) Confronting Youth in Europe (Copenhagen: AKF, 1998).Google Scholar

146. Fionda, J. Youth and justice’ in Fionda, J. (ed) Legal Concepts of Childhood (Oxford: Hart, 2001).Google Scholar

147. Fionda, above n 64, p 6.

148. For discussion of the so-called youth problem, and the factors which have contributed to its emergence, see Burney, above n 95, pp 64–76.

149. Smith, Dj The Links Between Victimization and Offending (Edinburgh: Centre for Law and Society, University of Edinburgh, 2004).Google ScholarPubMed

150. See, eg, Waterhouse et al , above n 28.

151. Above n 43, p 33.

152. DJ Smith ‘Less Crime Without More Punishment’ (1993) 3 Edinburgh Law Review 294.

153. Huizinga, D. et al The Effect of Juvenile Justice System Processing on Subsequent Delinquent and Criminal Behaviour: A Cross National Study (Washington: National Institute of Justice, 2003).Google Scholar

154. See, eg, Wilson, D., Sharp, A. and Patterson, D. Young People and Crime: Findings from the 2005 Offending, Crime and Justice Survey (London: Home Office, 2006).Google Scholar

155. Moffitt, T. Life course-persistent” and “adolescence-limited” antisocial behaviour: a developmental taxonomy’, (1993) 100 Psychological Review 674.CrossRefGoogle Scholar

156. Rutherford, above n 144.

157. The four conditions identified by Sherman are: (1) the sanction is unfair – a young person subject to an ASBO may regard it as either substantively unfair (eg the terms seem to him to be overly restrictive) or procedurally unfair (eg not able to participate in or understand the proceedings); (2) the individual is poorly bonded to or alienated from the sanctioning agent or the community the agent represents (often the effect of an ASBO is to exacerbate social exclusion); (3) the individual defines the sanction as stigmatising and rejecting a person, not a lawbreaking act (ASBOs are often accompanied by publicity campaigns); and (4) the individual denies or refuses to acknowledge the stigmatising shame that has been imposed (evidence that some young people regard ASBOs as a badge of honour). See further Sherman, L Defiance, deterrence and irrelevance: a theory of the criminal sanction’ (1993) 30 Journal of Research in Crime and Delinquency 445.CrossRefGoogle Scholar

158. The government has recently shown interest in injecting participatory values into the ASBO process in England and Wales by giving ‘communities’, in the form of Tennant Management Organisations, the power to apply for ASBOs (draft SI The Local Authorities (Contracting Out of Anti-Social Behaviour Order Functions) (England) Order 2007 (London: HMSO, 2007)). The significance of YOPs is that they show how participation can be harnessed in a more inclusionary manner.

159. The evaluation of the YOPs found that as regards opportunities to participate, understanding of the process and perceived fairness of the proceedings, young people and their families rated the YOP process highly in comparison to their experience of the Youth Court ( Newburn, T. et al The Introduction of Referral Orders into the Youth Justice System: Final Report Home Office Research Study 242 (London: Home Office, 2002)).Google Scholar

160. For the argument that ASBOs should be classified as criminal in nature regardless of whether they are imposed on adults or children, see Macdonald, above nn 109 and 136.

161. A YOP is composed of one member of the local youth offending team and two lay community representatives.

162. While recognising the value of restorative principles (particularly their participatory quality), the prioritisation of welfarism (and liberalism) in our scheme serves to address a well-made criticism of the new youth justice arrangements in England and Wales (including the YOPs), that young people in trouble are viewed as offenders first and children second (see, eg, B Goldson ‘Children in need or young offenders? Hardening ideology, organisational change and new challenges for social work with children in trouble’ (2000) 5 Child and Family Social Work 255).

163. This would differ from the existing arrangements for YOPs, whereby a child is only referred to a YOP if he pleads guilty. It is arguable that this restriction infringes the presumption of innocence. For a critical analysis of the YOP process see C Ball ‘The Youth Justice and Criminal Evidence Act 1999 Part I: a significant move towards restorative justice, or a recipe for unintended consequences’ [2000] Crim LR 211.

164. As Cleland and Tisdall point out, making commission of acts of anti-social behaviour a new ground of referral to the children’s hearings system could have avoided many of the difficulties that may now face the Scottish system following the extension of the ASBO to under-16 s (above n 51).

165. The youth court could be granted discretionary power to revert the case to the youth panel for (non-custodial) disposal in appropriate cases. The power to refer a case to a children’s hearing for disposal is often used by the courts in Scotland in the small number of under-16 s cases that are prosecuted rather than referred to the children’s hearings.