Monday, 13 February 2012
ASBOs
Well today was disappointingly dull. I attended the Crown Court for a PCMH but it had been taken out of the list at short notice and nobody had thought to notify the clerks or update the Daily Court List. Never mind. I had a lot to do in Chambers so was happy to spend the rest of the day preparing for the week ahead. I have a trial in the warned list (which hasn't come in yet) so tomorrow I have a contested ASBO application to deal with which is due to last all day. Sigh. I thought ASBOs were going out of fashion. I believe it was the 28th May 2010 that Theresa May gave her speech to the Coin Street Community Centre in London entitled 'Moving beyond the ASBO'. I recall one part of the speech as going- "For 13 years, politicians told us that the government had the answer; that
the ASBO was the silver bullet that would cure all society’s ills.
It wasn’t." But what has been done about it? The lower courts regularly impose them upon applications being made- applications which are largely based on uncorroborated hearsay I hasten to add. The Crown Court usually (although not always) treats such applications with a little more circumspect. The High Court and the Court of Appeal have to mop up all the unlawful ASBOs and those which contain ludicrous terms. Take the proposed ASBO which I am dealing with tomorrow. It contains 10 prohibitions, 6 of which are already offences known to the criminal law. 3 of them are appallingly written - I can only just guess at what they are trying to prohibit so it is highly unlikely that the individual concerned will be able to comprehend them. The other hopes to prohibit him from "hanging around" with one or more of 20+ named individuals- all of whom are his friends. The most depressing part- the Magistrates' Court will probably grant it (unless perhaps it goes before a District Judge) and off I will have to trot to either the Crown Court or the Divisional Court to remedy the matter. I'll be sure to update you tomorrow to let you know. Sorry for the rant but I felt it was necessary. I hope everyone else has had a slightly more entertaining day.
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Considering there are only about 2000 ASBOs being granted annually 250 magistrates` courts will each have about 8 annually. Very few J.P.s will have experience therefore of the finer points required. It is at least six years since I have sat on an application and I remember, with my colleagues, having to make many changes from the original text presented to us.
ReplyDeleteA good point but I suspect that, in fact, certain areas are more prone to making ASBOs than others- they are, for example, very popular in places like Croydon and Chelmsford. The court I was in the other day had 5 hearings listed- all of which related to ASBOs (3 applications and 2 variations). It is encouraging to hear, from a judicial perspective, that you and your colleagues actively engaged in making amendments. In fairness to my court yesterday, they refused to accept the ASBO in its presented form and adopted a number of the representations I put forward. The problem with the regime, however, is that if you allow unclear (or indeed unlawful) terms to remain in the ASBO, they remain effective until something is done about them on appeal. It is for that reason that many ASBOs get appealed because the terms are either too vague, too prohibitive, or because they are simply incapable of being properly understood by the individual. Sadly, yesterday's ASBO still contains terms which I consider to be inappropriate and so will necessitate an appeal (probably to the Divisional Court). Makes for a good day out though!
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