The use of antisocial behaviour orders (ASBOs) in Britain: unpacking the primacy of legal procedure(s) and judicial discretion

Abstract

The primary thesis that the chapters which follow are concerned to elaborate and to substantiate is to what extent legal procedure(s) and judicial discretion influence the administration, management and outcomes of Antisocial Behaviour Order (ASBO) use in Britain. A great deal of the existing academic literature on the use of ASBOs in Britain locates the strategic importance of the ‘relevant authorities’ (local authorities, housing associations, registered social landlords (RSLs), the police) involved in ASBO applications. While acknowledging the importance of existing scholarship which highlights the significance of the contribution of these applicant agencies in shaping ASBO outcomes, this thesis contends that the position of both legal procedure(s) and the court system in ASBO applications is also one of fundamental primacy, which necessitates further examination and analysis. Moreover, there are also no comparative studies in existence that analyse the substantive differences and/or similarities between ASBO administrative procedure(s) in Scotland, and in England and Wales. Hence this thesis will also provide a comparative account of relevant aspects of legal and administrative procedure(s) across these jurisdictions. The data production approach applied in this thesis is both quantitative and qualitative in its composition. An online survey questionnaire was used to obtain data on solicitors’ experiences of ASBO application and court procedure(s) (in Scotland, and in England and Wales), and semi-structured interviews were conducted with Sheriffs in the lower courts in Scotland in order to obtain information on judicial discretion and decision-making in ASBO cases. The study found that legal procedure(s) and judicial discretion fundamentally impacted on the operation of antisocial behaviour legislation and the use of ASBOs in both Scotland, and in England and Wales. Specifically, legal procedure(s) and judicial discretion influenced the form of ASBO prohibitions and the type of behaviour made the subject of an order; the extent of the impact of mitigating factors; the evidentiary requirements necessary for an interim/ASBO application; the sentencing tariffs for breach; the frequency with which orders on conviction are issued; the frequency with which orders are granted to children and young people; and the ability of alleged antisocial behaviour perpetrators to defend or to appeal action against them. Building on existing theoretical frameworks on procedural justice (Galligan, 1996a; 1996b; Halliday, 1998; 2004), and, moreover, on conceptual paradigms of ‘fairness’ and consistency in judicial decision-making developed in other empirical studies of procedure and judicial discretion in the lower courts (Anleu and Mack, 2005; 2007; Cowan et al., 2006 Hunter et al., 2005; Lawrence, 1995), the thesis develops an account of the network of (procedural and juridical) factors that influence the use of ASBOs in Britain. The thesis concludes that, in order to ensure greater consistency, stringency and accuracy in approach to ASBO cases – in essence, in order for there to be more ‘fairness’ in ASBO processes - there must be a greater socio-legal focus upon the influence of both substantive practices and formal procedural rules.