As the Scottish Government reviews anti-social behaviour legislation, Stella Perrott compares Scotland's approach to that in England and Wales
On September 26 2008, an 81-year-old woman in Wales was banned from coming within a mile of her home of 41 years, having been in breach of an ASBO made in 2004. She was also sentenced to nine months imprisonment suspended for two years. On sentencing, the judge, Judge Nicholas Cooke QC, called a meeting between the Crown Prosecution Service, Wales’ Commissioner for Older People and the social services department in Monmouthshire to discuss the case and to see if it might have been dealt with better. He was clearly unhappy that it was beyond the wit of local agencies, in concert with the woman, her neighbours and perhaps the wider community, to solve the problems of her behaviour without recourse to the courts.
What was not in doubt was a need to find a way of stopping her abusive behaviour towards her neighbours. Experiencing persistent anti-social behaviour can have a significant long-term negative impact on people’s wellbeing and feelings of safety. Unlike fear of crime, which is largely based on press reports and word of mouth, concern about anti-social behaviour is related to people’s direct experience of it. The impact of anti-social behaviour is felt much more acutely in poorer areas dominated by public or social housing and in communities that have low ‘social efficacy’ – the collective capacity to sort out problems. People living in more affluent areas may only rarely need to mobilise their efforts but are often better able to do so. Signs of anti-social behaviour – burned out cars, vandalism, graffiti and drug dealing can indicate to residents that the authorities do not care and this, in turn, can lead to less of an emotional attachment to and practical investment in the local community by residents.
Although priority to protecting those most at risk of anti-social behaviour – poorly paid ‘decent hard working families’ in social housing is at the heart of the Labour project, tackling anti-social behaviour has been a political priority for all parties, especially as it is such a peculiarly British problem. In May 2006 a study by University College London concluded that not only did 83 per cent of people in the UK believe that the UK had serious problems with anti-social behaviour but that, across Europe, Great Britain was perceived by every other nation to have a bigger problem than any other nation in Europe.
The anti-social behaviour legislation assumes that the distressing behaviours from which people might require protection are capable of being controlled by those on whom orders are sought. But a significant number of people who are old, mentally ill or young and chaotic have been made subject to ASBOs with no checks on their capacity to adhere to the stringent behaviour prohibitions that have been applied. In some cases, the distressing or compulsive behaviour which triggered the ASBO, attempted suicide, for example, or repetitive flushing of a toilet, is indicative of a problem unlikely to be amenable to a court order. The use of the law to tackle the behaviour of sick people raises some uncomfortable issues about the kind of society in which we now live
The use of the law to tackle the behaviour of sick people raises some uncomfortable issues about the kind of society in which we now live 
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Behavioural expectations have changed over the years and what we might have tolerated in the past may no longer be tolerated now. We are less likely to personally intervene when concerned about behaviour and we have greater expectations of state agencies to police our streets better and to intervene more readily on our behalf. The use of anti-social behaviour legislation against activities such as passive begging or children congregating is indicative of these changing societal attitudes and levels of tolerance. But it also raises questions about the protection afforded to individuals or groups whose behaviour may be unwelcome but is neither criminal nor intended to be harassing or distressing to others.
The debate around the necessity for and the use of the legislation shows a polarity within society and this polarity is no more evident than in the differences between how anti-social behaviour has been tackled in England and Wales and in Scotland. In part, the differences are due to the pre-existing legislative bases but they also reflect the compromises inherent in a coalition government as was the case in Scotland and the level of support for the legislation amongst councils. In Scotland this was poor, even amongst Labour-dominated councils. The difference is particularly pronounced in respect of children and young people. There are no indications that the children, north and south of the border, are substantially different from each other in their behaviour or in their capacity to cause annoyance and irritation to adults. Yet they are treated entirely differently and this divergence reveals each jurisdiction’s underpinning social values about children and child rearing.
Although many of the powers available to the authorities in England and Wales and in Scotland are similar – ASBOs, Parenting Orders, Fixed Penalty Notices and Dispersal Orders, the England and Wales measures attract more punitive sanctions. For example, the minimum period for an ASBO is two years in England and Wales. There is no minimum in Scotland and a third of the orders are for less than 12 months. The penalty for an ASBO breach is the same across the jurisdictions, i.e. up to five years imprisonment on indictment, but in Scotland, children under 16 cannot be imprisoned for breach. In England and Wales, people may be fined either £80 or £40 on a fixed penalty notice whereas in Scotland there is a single £40 level. Lastly, there is a presumption in England and Wales to ‘name and shame’ perpetrators whilst in Scotland there is no such assumption and juveniles are protected from publicity.
The sheer weight of the anti-social behaviour legislation in England and Wales is indicative of the priority given to legal measures as the primary means of resolving social problems. The Antisocial Behaviour Act 2003, the Police and Justice Act 2005, the Serious Organised Crime and Police Act 2005 and the Education and Inspection Act 2006 all extend the powers and scope of the Crime and Disorder Act 1998 on which the original powers were based. Every gap, weakness or loophole found in earlier legislation is plugged in the next. So, for example, the finding that an excessively large number of young people on whom an order was imposed had serious personal and social problems led to the introduction of Individual Support Orders. A need for ‘early intervention’ to prevent future offending or anti-social behaviour of those under the age of criminal responsibility was met by a further order, the Child Protection Order. A desire to make parents more responsible for their children’s behaviour resulted in Parental Compensation Orders. And, in order to make them more responsible for their children’s behaviour in the classroom, the Government enabled head teachers and education authorities to impose Parenting Contracts and to apply for Parenting Orders for bad behaviour in school. Cumulatively, these acts ensure that every incident of anti-social behaviour, whether it is in the street, in one’s own home or in school, can be dealt with through court sanctions.
In contrast, Scotland’s approach has been much more cautious. ASBOs could not be imposed on people under 16 or parents be made subject to Parenting Orders until after the Antisocial Behaviour Act 2004 was passed. The Children’s Hearings system, a welfare-based system, remains the primary route for addressing concerns about a child’s behaviour where compulsion may be required. Requiring the Principal Reporter to arrange a Children’s Hearing and to provide advice to the Sheriff has made it unlikely that an ASBO would be imposed on any child without taking account of their personal and social circumstances and without first being assured that all alternative measures have been tried. The legislation not only makes the use of ASBOs for under-16s less likely but also makes the process of obtaining one lengthier.
These variations have led to (up to March 2008) only 14 ASBOs on 12-15 year olds in Scotland. Up to December 2006 (the last year for which figures are available), 5,110 ASBOs were imposed on 10-17 year olds in England and Wales. Only 21 per cent of applications for ASBOs in England and Wales are against those over 25 years of age compared to 63 per cent in Scotland.
From the figures available, the rate of orders applied for and granted appears to be totally unrelated to the level of anti-social behaviour or other risk factors. It seems to be entirely dependent on local political and community will. At its most extreme, England’s ‘ASBO capital’, Manchester, issued a total of 1,464 ASBOs (across all ages) up to December 2006 while Glasgow, with an arguably greater risk profile, issued only 42, of which all but 7 were made by a housing association rather than the council itself. Whereas in England there appears to be widespread support within local government for more punitive measures, this is not true for Scotland. Both countries’ local government associations have argued that punitive measures need to be implemented alongside preventative and rehabilitative measures but the Local Government Association (LGA) policy states that the ‘councils continue to support enforcement and we welcome new powers to crack down on the few who cause misery in some local communities’ while COSLA argues for ‘more emphasis to working with local communities to tackle the social conditions that give rise to much anti-social behaviour as well as ensuring that there are adequate resources available for suitable diversionary activities for young people’. It seems that this fundamental difference in how local communities and their elected representatives want the problems of anti-social behaviour to be tackled is at the crux of understanding the difference between the two countries. England has framed the problem as one of individuals whose behaviour needs to be curtailed through enforcement or intervention whereas Scotland has framed the problem as one requiring community change and resources.
Parenting Order usage also reveals differences between the two jurisdictions, but also some interesting similarities. It is the behaviour of the child that triggers a Parenting Order in England and Wales. If the child has behaved anti-socially, has committed an offence or is truanting from school, then a Parenting Order can be made. The underlying assumption is that the anti-social behaviour is, of itself, indicative of a need for compulsory parental intervention. The court does not have to be satisfied that the parent is failing to take responsibility for their child’s behaviour, it has only to be satisfied that ‘the child or young person has engaged in criminal conduct or anti-social behaviour’ and that ‘making the order would be desirable in the interests of preventing further criminal conduct or anti-social behaviour’.
In contrast, in Scotland, Parenting Orders can be imposed where there are concerns about a child’s welfare as well as their behaviour but can only be imposed when ‘a) resources and opportunities were available for the parent in a way that he or she could realistically take advantage of them on a voluntarily basis; b) the services offered on a voluntary basis were effective and appropriate; and c) despite this, the parent has failed or refused to engage’. The underlying assumption is that most parents of anti-social children would parent better if the right support was available to them and that this can best be provided without coercion. The onus is on agencies to ensure that a range of effective, appropriate, relevant and accessible parenting interventions are in place and have been tried.
Generally the use of POs is high in England and Wales. According to the Youth Justice Board, 1,307 POs were attached to other proceedings such as warnings, sentences or ASBOs (64) and education authorities and schools can apply for POs in cases of truanting and exclusion and poor school behaviour. Professionals can also apply for a ‘stand alone’ PO, i.e. not attached to any other order or part of another proceeding. Only 34 stand-alone Parenting Orders in 2006/07 were sought by those supervising young people and no schools sought POs in an attempt to curb unruly behaviour in the classroom. No POs have been made in Scotland. The low number of stand-alone POs – sought by those working with children and families across the UK -Youth Offending Teams, teachers or social workers – would suggest that the benefits of such orders have yet to be identified by them.
The use of ASBOs appears to have peaked in 2005 in England and Wales and 2006 in Scotland. In England and Wales the numbers dropped 34 per cent from 4,123 in 2005 to 2,706 in 2006 and in Scotland they dropped 16 per cent from 437 to 367 between 2006 and 2007. High breach rates and the work required to obtain them or prosecute breaches may have discouraged their use. Increasingly, agencies are using anti-social behaviour contracts/agreements (ABCs) and fixed-penalty notices (FPNs).
ABCs and FPNs are easy to implement and require little or no inter-agency co-operation or consultation. ABCs are entirely voluntary and have been widely used in both England and Scotland on young people and some adults. Generally, a contract includes an agreement by the person to desist from certain behaviours with the potential consequences for not doing so being spelled out. In some cases, the agreement may also commit an agency to providing support or resources to assist desistance. Government-commissioned research in Scotland indicates that they are considered effective as in most cases no further measures were needed to secure good behaviour in the following twelve months after the contract was signed.
Over 25,000 FPNs have been imposed in Scotland and the numbers continue to rise. These allow the police to impose on the spot fines for anti-social behaviour such as drunkenness, abusive language or littering. Although we know 57 per cent of the penalties are paid within 21 days, there is little information about how well they are working. It is also not clear whether both these measures are supplanting other informal measures or are being used for more serious cases that might have warranted a more serious response.
Dispersal orders are imposed on an area, not people, but they have primarily been sought to tackle young people congregating. Only 18 dispersal orders have been made in Scotland in the first 18 months of its operation – compared to 809 authorisations made in England and Wales in the first 18 months of access to the powers. Research into
dispersal orders in England and Wales and in Scotland indicates that they can offer short-term respite to communities but work best when accompanied by other measures such as the provision of youth services. In a few cases, problems have worsened once the order has ended.
The first wave of anti-social behaviour legislation was passed ten years ago. Although the public’s perception of anti-social behaviour, as evidenced in the British Crime survey, has improved in the last couple of years, the perceived level of anti-social behaviour is still higher than the level that applied before the legislation was passed. Given that people’s perception of levels of anti-social behaviour is closely related to their experience of it, this suggests that the problems are far from being resolved, even at a time when crime is reducing. The Scottish Government is currently reviewing the workings of the legislation and although there are no plans to repeal it, a new emphasis on prevention is envisaged along with increased community engagement.
The approaches to tackling anti-social behaviour across the Scotland/England border show both the similarities and differences between the two jurisdictions. There is much that is the same and both have broadly similar powers and legislation. The real differences lie in the use of the legislation, particularly of those measures that require court orders and the most significant difference is in the legislation’s application to children, young people and their parents. The overall pattern of provision and implementation suggests that in England and Wales there is a strong belief in the capacity of legislation to resolve social problems and that any unanticipated consequences can be addressed through further legislative means. There is also a much greater emphasis on state intervention through court orders, the concept of voluntarism is largely missing in the guidance and resources are directed at statutory orders.
In Scotland there appears to be a marked reluctance to use statutory measures against children, young people or their parents and this has a long tradition. The welfare of the child is the first consideration of any Children’s Hearing and there is an expectation that change will be achieved without compulsion wherever possible. Increasingly, concerns about the behaviour of young people are being addressed through multi-agency groups meeting to determine which agency can best help the child change their behaviour. Where a child and/or their family co-operate with the named agency, no further enforcement action is taken. There is an acceptance that turning behaviour around may take time and that behavioural relapses do not, of themselves, constitute grounds for compulsory measures.
The concepts of ‘early intervention’ and ‘prevention’ also appear to be understood a little differently. In the guidance issued in England and Wales, court orders are advocated as a preventative measure or as a means to intervene early in the life of a child or in the course of a problem. In Scotland, the most recent policy documents emphasise that early intervention is not ‘state interference’ but a prompt response to any concern raised about a child. Early intervention and prevention usually refer to voluntary anticipatory measures outwith statutory involvement.
The anti-social behaviour legislation tells us a great deal about the prevailing attitudes towards those that transgress society’s boundaries. At its crudest, one approach implies that young people require control and compulsion and the other that they need education and support. These differences not only reflect different political ideologies but also history and underpinning social norms and values
These differences not only reflect different political ideologies but also history and underpinning social norms and values
. Following the review of the anti-social behaviour legislation in Scotland by the SNP Government, we may see even greater bifurcation between the countries of the UK as more emphasis is placed, in Scotland, on prevention and community involvement.
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