Institutionalised spite

Introduced by Labour largely to protect working class families on inner-city estates from the menace of antisocial behaviour, how could you not applaud Asbos? Because, writes Chris Quayle, they don't work, have absolutely no regard for the niceties of normal legal process, and are an excuse for completely ignoring the causes of antisocial behaviour in the first place.

April 1, 2005
12 min read

hyperactive 13-year-old boy with special needs placed under virtual house arrest, a pig farmer ordered to keep his livestock under control, and a desperately suicidal woman threatened with jail should she venture near a river. Until recently, any suggestion that such cases would be vexing the criminal justice system would have been confined to the realm of political satire. But that was before the introduction of a crude legal instrument that’s rapidly embedded itself in Britain’s cultural and political landscape: the antisocial behaviour order (Asbo).

Home secretary Charles Clarke is certain that he’s on a winner with Asbos. They feature as a major plank of Labour’s law and order platform for the forthcoming election campaign. At the recent unveiling of Home Office plans to ‘name and shame’ Asbo recipients as young as 10, Clarke said: ‘Yobs would face the consequences of their behaviour: your photo will be all over the local media, the local community will know who you are, and breaching an Asbo could land you in prison.’ In other words: ‘What we’ve done is working well. Expect more of the same in Labour’s third term.’

In the half-decade or so since their introduction, our perception of Asbos has been transformed. They have become a seemingly ubiquitous part of our national culture. Politicians boast about them and promise to use them more often. All of the polls seem to indicate that they’re popular. Given this, it’s surprising how little is known about Asbos, and how limited the national discussion has been regarding their introduction and increasingly widespread use.

According to Will McMahon of the Crime and Society Foundation, Asbos were first touted by right-wing criminology think-tanks in the mid-1990s as a way of modernising an arcane and cumbersome body of statutes regulating housing law and neighbourly disputes. Though rejected by the Major government as unworkable, they found favour with New Labour, which incorporated them into its famous 1997 election pledge card to introduce a ‘fast-track’ youth justice system. The result was the Crime and Disorder Act 1998.

The act contains a plethora of measures that are revolutionising our justice system by stealth, measures so austere that one academic famously labelled them as being ‘institutionalised intolerance’. Strong on punishment, it is incredibly weak with regards to objectively defining antisocial behaviour. The result is that any behaviour deemed to have caused ‘distress’ or ‘offence’ can be presented to a court to justify an order being granted: even something as innocuous as a loud conversation between two people.

There are two main reasons why Asbos are so radical. First, a wide range of state and quasi-state bodies are empowered to collate evidence in order to obtain them. These include local authorities and housing associations, and, more disconcertingly, private ‘arms-length’ management companies of the type increasingly favoured to run former council housing estates. Collecting evidence is, of course, normally the job of the police.

The second ‘innovative’ thing about Asbos is that while they are civil measures they can be backed up by the full weight of the criminal law. This means that to obtain an order legal niceties like a defence counsel can be done away with. It also means that the evidence necessary for an Asbo to be granted is tested not under the ‘beyond reasonable doubt’ criteria that apply in criminal law but the far less exacting calculus of the civil law. Effectively, something as flimsy as hearsay evidence, or gossip, will suffice. Yet if an order were to be breached the ‘offender’ could face a possible jail sentence, even if the act that constituted the breach would not normally be classified as criminal.

At first, the take-up of Asbos proved slow. In the year after they became law only 104 orders were taken out in England and Wales. By 2003, however, this figure had risen to 1,036, and last year the number of orders issued was 1,826. For the time being, at least, Labour politicians see their widespread use as a virtue, not a problem. The rhetoric goes that in order to enhance and preserve the rights of the many, the rights of the few must be controlled and circumscribed.

Talking to The Guardian about Manchester’s status as the UK’s Asbo capital, Labour councillor Basil Curley said: ‘For too long crime has been seen as a Tory issue. We’re reclaiming working class areas from thugs, hooligans and bullies, and if John Wadham [the former director of the civil rights pressure group Liberty] wants to come and park his BMW on one of the streets in question he’s welcome to do so.’

Taking back the streets from bullies, making communities safer: how could you possibly disagree with such sentiments, even if that process requires using Asbos? ‘Well firstly, they don’t work,’ says Matt Foot, a solicitor rapidly establishing a reputation for his opposition to the orders and for his involvement in a new campaign to stop their use. ‘Each set of Home Office figures that becomes available shows an increase of Asbos that are breached: 42 per cent in the year to December 2003. That’s up more than 6 per cent on the previous year. So even if I put aside all of the profound reservations I have about human rights and civil liberties I’m still left with a situation where nearly half of Asbos are not upheld and are therefore rendered worthless when it comes to making our urban environments safer.’

Foot elaborates: ‘The fact is that Asbos are predominantly used against vulnerable people who really should be receiving help rather than punishment: people like the man I recently defended. The Asbo obtained by Camden Council banned him from showing a war wound on his leg while begging. He was a minor nuisance to passers-by: an inconvenience. If the crimes of the people whom Asbos are being used against are so bad, why can’t we use the criminal law?’

Foot is not alone in his discontent. In the course of researching this article I spoke to many professionals involved in law, housing, youth and community work. The message I received was unanimous: Asbos aren’t working, and even in the few instances where they do the price paid by us all in terms of liberties sacrificed is far too high.

This discontent is not just being expressed at the personal level. In the course of the past six months, Napo, the probation officers union, has published research detailing the shortcomings of Asbos and questioning their utility. Shelter, which works with more than 100,000 people a year who have housing problems, many of whom suffer at the hands of nuisance neighbours, expresses concern that government policy is now ‘skewed too much towards punishment’. It goes on to suggest that it is only by ‘investing significantly in more preventative and rehabilitative programmes’ that we can tackle the ‘complex underlying causes of antisocial behaviour’. A more ‘balanced’ and ‘structural’ approach is also favoured by the children’s charity NCH. It says that Asbos often only create a ‘perception’ of effective action being taken against antisocial behaviour.

Jayne (not her real name) works as a solicitor for a large housing charity based in Cheshire. The county is more often associated with Armani than Asbos, but actually has pockets of extreme deprivation. Jayne sees this every day in her caseload. She’s the last port of call for the desperate, the bewildered and the beleaguered: unfortunate individuals with nobody else to turn to. In the course of her work she sees all of the problems that can arise when people live in close proximity to each other, particularly when poverty is added to the mix.

You might think Jayne would see Asbos as making a positive contribution to these communities. Far from it. ‘Somebody once described Asbos as a sticking plaster to be used as a temporary expedient,’ she says. ‘But rather than using them like that, they are being prescribed as a cure-all medicine. That’s no good when it’s major surgery that’s required.

‘As well as good housing, people need education, employment, a stake in society as citizens. Nobody ever stops to ask why problems around so-called antisocial behaviour only arise in poorer areas. Are we seriously to believe that the middle classes are impeccably behaved? I doubt that very much.’

Jayne also describes the pernicious cultural consequences engendered by Asbos. She describes working-class areas becoming characterised by an atmosphere of distrust: communities struggling under the weight of mutual suspicion and the creation of a ‘snitcher’s’ culture. ‘In the past,’ she says, ‘disputes would be settled over the garden fence. Now people are far more likely to involve a very powerful third party in order to settle scores.’

In Jayne’s opinion, the antisocial behaviour laws are badly framed, and often implemented by individuals with little or no knowledge of what makes a community ‘socially sustainable’. ‘Managing housing often requires levels of Solomon-like diplomacy,’ she says. ‘There are usually two sides to every story, you have to listen carefully, listen to both of them before you can decide what course of action best suits the interests of everyone concerned.’ Instead of this, she says antisocial behaviour is frequently tackled in ‘a clumsy, ham-fisted fashion that favours one side over the other and does far more harm than good’.

Behind the orders issued there often lie stories of despair and unfulfilled potential. There’s the boy aged 13 who was driven to suicide after being exiled from his local area and his peers. Or the 11-year-old who stands less than five feet tall confined to his own street. Of course, it would be grand folly to deny that Asbo cases often involve profound problems (for example, the 11-year-old mentioned here had already achieved ‘criminal veteran’ status). But surely the severity of these problems demands solutions that actually work, and, whether we like it or not, these solutions will invariably include both victims and perpetrators.

So if Asbos and other draconian measures aimed at curbing antisocial behaviour aren’t working, what will? Maureen Williams is chair of the Merseyside Community Development Foundation, an umbrella group that brings together community and voluntary groups from throughout Liverpool. She says: ‘The starting point is to admit two things… That there is a problem in some instances, and… that the problem is the responsibility of all of us, as a civilised society, to deal with. If we can all agree on them two simple things we can begin to take a far more collective and holistic approach.’

As for the problem of recidivist offenders, Williams says: ‘Though it’s the case that a small minority of kids won’t respond to offers of help, it’s equally true that the vast majority will.’ She then goes on to list suggestions that she thinks would address the problems as they stand; among the usual ones like better educational prospects are imaginative measures like detached youth workers empowered to actually go out to the parks and playgrounds frequented by young people. ‘Each day I see ordinary people doing extraordinary things to make a positive change,’ Williams says. ‘Policy needs to be tailored to encourage this rather than treating everyone, and our young people in particular, as potential criminals.’

Charles Clarke and co would probably dismiss critics of Asbos as the ‘usual suspects’: a group of people described by one Labour politician as ‘Guardian-reading, middle class wankers who make a good living from being awkward and don’t have to live in the blighted areas’. So let’s return to Manchester, or, more specifically, the working-class areas to the north of the city. Forget the clichéd notions about 24-hour party people. These areas have been shrouded in darkness since the sun went down in the recession of the early 1980s. If the Asbo statistics are to be believed, these neighbourhoods contain the most antisocial people in Britain. What do the people who live with them think about Asbos?

Karen is a working-class Mancunian mother of two who’s recently returned to work through the New Deal. She intends to vote Labour at the next election, like she always has done. She says the whole Asbo issue is now widely perceived as a ‘joke’ in her local area, and that the orders’ increasingly exotic stipulations (‘must not wear gloves’, ‘must not use the word “grass”‘) are as much a source of amusement to the community as they are a badge of honour to some of the individuals whose behaviour the orders are supposed to control. She says the council’s use of Asbos had initially been unconditionally welcomed, but that people became disillusioned when it became apparent that there was ‘nothing else on the table’ and that local kids, including her own, were to be offered ‘all stick and no carrot’. ‘It’s no use getting on your high horse about crime when you’re shutting down the local school. From now on kids will have to take two buses to get an education miles away. I’d appreciate it if the council would talk about that rather than mouthing off in the Evening News about how bad people’s kids are.’

Tony Blair boasts of an ‘evidence-based approach’ to policy. Much of the evidence made available by the Home Office suggests that the government’s commitment to Asbos has failed. Here, it seems, is a policy driven by an authoritarian populism that will ultimately rebound. The ‘tough’ posturing of New Labour’s approach may work with focus groups in suburban Kent, but on the ground in inner-city estates in Manchester its popularity is short-lived.

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