Drafting valid ASBO prohibitions: a quick guide

Resource type: Practice note: overview

Status: Maintained

Jurisdictions: England, Wales

A quick guide on drafting valid prohibitions to be included in Anti-Social Behaviour Orders (ASBOs), including a table of ASBO prohibitions that have already been considered by the courts.

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Contents

General ASBO drafting principles

Prohibiting criminal behaviour: overlap

ASBO prohibitions considered by the courts

General ASBO drafting principles

An ASBO must contain provisions prohibiting a defendant from engaging in specified behaviour. Prohibitions must be necessary to protect persons (including any person in England and Wales, not just those locally affected by the behaviour) from further anti-social acts by the defendant (section 1(6), Crime and Disorder Act 1998). Case law has established that to be valid, prohibitions must be:

Protective. The use of an ASBO to punish a defendant is unlawful.
Specific and targeted. Each prohibition must be tailored to the defendant and their specific behaviour, and not be generic in nature. One way of doing this could be to attach a map to the ASBO, highlighting any exclusion zones or areas in which anti-social behaviour is prohibited.
Proportionate. The terms of the ASBO must be commensurate with the risk to be guarded against.
Clear and precise. The prohibition must be able to be clearly understood by a defendant so that they know what is expected of them. For example, any exclusion zone should be clearly marked on a map and any individuals with whom the defendant may not associate should be named or otherwise clearly identified.

(R v Boness [2005] EWCA 2395; R v P (Shane Tony) [2004] EWCA Crim 287; R v McGrath [2005] EWCA Crim 353; W v DPP [2005] EWHC 1333 (Admin).)

Prohibiting criminal behaviour: overlap

Difficulties may arise in drafting ASBO prohibitions where the anti-social behaviour overlaps with the commission of a criminal offence. In principle, a prohibition should not normally be made if the behaviour that is the subject of the prohibition is a criminal offence and the penalty for that offence would be a sufficient deterrent. For example, if an element of the anti-social behaviour involves driving an unlicensed vehicle while disqualified in the pedestrianised area of a housing estate, an ASBO prohibition against driving while disqualified would be inappropriate. The offence of driving while disqualified carries a six-month custodial sentence, which would be regarded as a sufficient deterrent in itself.

An ASBO may however be appropriate where the anti-social behaviour is a criminal offence but the penalty for the criminal offence would not be a sufficient deterrent. For example, if the anti-social behaviour involved repeated instances of drunk and disorderly behaviour then an ASBO against drinking in a public place may be more appropriate.

Any ASBO prohibition should anticipate and prevent behaviour that may lead to the commission of a crime. For example, an ASBO may prevent a defendant from entering a particular shopping centre, rather than theft from shops (R v Boness [2005] EWCA 2395).

ASBO prohibitions considered by the courts

When drafting ASBO prohibitions, it is important that the individual circumstances of each case are considered and care is taken to ensure that the particular facts of the anti-social behaviour are addressed in the order. Examples of ASBO prohibitions that have already been considered by the courts are set out in the table below. The following examples are for guidance only.

Behaviour	Prohibition	Valid?	Notes
Theft	Remaining in any shop, commercial or hospital premises when asked to leave by staff.	Yes	The prohibition is clear and proportionate as it turns on being refused permission to remain on particular premises by those having control of them (R v Boness [2005] EWCA 2395).
Theft	Having any item with him in public which could be used in the commission of burglary or theft.	No	The term "item" is too wide and lacks clarity. Many items may be used in commission of a burglary (such as a credit card, a mobile phone or a pair of gloves) (R v Boness [2005] EWCA 2395).
Damage	Being in possession of any can of spray paint in a public place.	Yes	This is a well-drafted preventative prohibition, which tackles the anti-social behaviour before it is committed (R v Boness [2005] EWCA 2395).
Damage	Damaging or attempting to damage any property not belonging to himself, or inciting others to do so in [named property].	Yes	The word "criminal" is not included so that the prohibition could be breached without intention or recklessness, which would be required for an offence of criminal damage (R v Clifton George Morrison [2005] EWCA Crim 2237).
Damage	Doing anything that may cause damage.	No	This is too wide and could result in a breach if the defendant inadvertently caused minor damage to his own property (for example, if he scuffed his own shoes) (R v Boness [2005] EWCA 2395).
Damage	Causing criminal damage.	No	This is already an imprisonable offence and this should be a sufficient deterrent (although there may be cases in which it is acceptable to prohibit damage if repeatedly directed against vulnerable victims) (R v Boness [2005] EWCA 2395).
Drunk and disorderly	Being drunk in a public place.	Yes	Being drunk is a minor, non-imprisonable offence. This prohibition may be used where fines and fixed penalties are not addressing the problem (R v McGrath [2005] EWCA Crim 353).
Group disorder	Associating with [named individual] in any public place.	Yes	This is valid even though the named individual is not prohibited from associating with the defendant. If the named individual insisted on walking with the defendant, the defendant would not be in breach, as he could claim reasonable excuse (Hills v Chief Constable of Essex [2006] EWHC 2633 (Admin)).
Group disorder	Being in the company of [named individual] for the duration of five years.	No	The duration is too long and, therefore, disproportionate. The prohibition should be limited to a public place; non-association in private houses is disproportionate (Hills v Chief Constable of Essex [2006] EWHC 2633 (Admin)).
Group disorder	Congregating in groups of three or more in a public place other than when with adults over the age of 21.	No	The prohibition is not proportionate, as it would prevent the defendant from attending sporting events or even from standing in a bus queue (N v DPP [2007] EWHC 883 (Admin)).
Prostitution	Loitering for the purpose of prostitution.	Yes	Although prostitution is a criminal offence, it is not imprisonable. This prohibition may be used where fines and fixed penalties are not addressing the problem (R v Boness [2005] EWCA 2395).
Vehicles	Touching an unattended vehicle without the permission of the owner.	Yes	This prohibition was found to be clear, precise and commensurate with the risk it was seeking to address where the defendant had previous convictions for aggravated taking without consent and interference (R v Boness [2005] EWCA 2395).
Vehicles	Driving while disqualified.	No	An ASBO prohibition against driving whilst disqualified changes the driving offence into a different offence (breach of an ASBO) so as to increase the potential penalty. Breach of the ASBO could result in a five-year custodial sentence, which is a much higher penalty than for driving while disqualified. The court found this "unwarranted…in the absence of exceptional circumstances" (R v Boness [2005] EWCA 2395); R v Kirkby [2005] EWCA Crim 1228).
Vehicles	Being a passenger in or on any vehicle, while any other person is committing a criminal offence in England or Wales.	No	A breach could be triggered by the defendant travelling in a bus with an unlicensed driver (R(W) v Acton Magistrates' Court [2005] EWHC 954 (Admin).
Vehicles	Being in possession of, in any public place, any window hammer, screwdriver, torch, or any tool or implement which could be used for the purpose of breaking into motor vehicles.	No	This is unacceptably wide. It is not possible to ascertain the meaning of "any tool or implement" and the expression "which could be used for the purpose of breaking into motor vehicles" overlaps with the offence of going equipped for theft (R v McGrath [2005] EWCA Crim 353).
Exclusions	Entering on any land belonging to any person whether legal or natural within the counties of [first named county] and [second named county].	No	This prohibition, intended to protect against trespass, is too vague. A breach could be triggered by a wrong turn onto someone else's property (R v McGrath [2005] EWCA Crim 353).
Exclusions	Entering any car park whether on payment or otherwise within the counties of [first named county] and [second named county].	No	This is too wide to protect against vehicle crime, as it would prevent the defendant entering even a supermarket car park as a passenger (R v McGrath [2005] EWCA Crim 353)
Exclusions	Entering any land or building on the land that forms a part of educational premises, except as an enrolled pupil with the agreement of the head of the establishment or in the course of lawful employment.	No	The term "educational premises" lacks clarity; it could include teaching hospitals or premises where night classes are held. The defendant may accidentally breach the order if he walked on playing fields associated with educational premises (R v Boness [2005] EWCA 2395).
Allegations against local residents on a community blog		No	The allegations were often offensive, but were found not to amount to anti-social behaviour for the purposes of the legislation (Perry v Humberside Police Chief Constable [2012] EWHC 3226).
Generic prohibition	Behaving in a manner which causes or is likely to cause harassment, alarm or distress to any person or persons not of the same household as himself, or inciting others so to behave.	No	It is preferable to clearly define the prohibited anti-social behaviour. However, this general prohibition may be appropriate if there is such a wide range of anti-social behaviour that it is impossible to be more specific (CPS v T [2006] EWHC 629 (Admin); Heron v Plymouth City Council [2009] EWHC 3562 (Admin)).
Generic prohibition	Acting in an anti-social manner in the city of [named city].	No	The prohibition is too wide. The behaviour is not clearly defined and the geographical area is too broad (CPS v Michael T [2006] EWHC 728 (Admin)).

Drafting valid ASBO prohibitions: a quick guide

General ASBO drafting principles

Prohibiting criminal behaviour: overlap

ASBO prohibitions considered by the courts

Further reading

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