The Scottish Government

« Previous | Contents | Next »

Listen

C hapter Three - ASBOS and Young People

Introduction

3.1 Much of the media comment about ASBOs has focused on their appropriateness as a means of tackling misconduct involving young people ¹⁴. In Scotland, as distinct from England and Wales, the ASBO legislation initially excluded persons aged under 16. As from 31 October 2004, however, the Scottish courts have been empowered to grant ASBOs in respect of such 'young people' as well as adults. During the period covered by this research, LAs and RSLs were coming to terms with these new powers. This chapter therefore looks at the responses of LAs in terms of using these new powers.

3.2 As a backdrop to the research evidence, we first set out the legal and administrative framework for the use of ASBOs in respect of young people as prescribed by the Scottish Executive. We then go on to review the policies and procedures developed by LAs to take forward possible ASBO applications where these concern persons aged under 16. Finally, we analyse the emerging evidence on the actual use of ASBOs with respect to young people.

3.3 The phrase 'young people' relates to 12-15 year olds, brought within the ambit of the ASBO regime by the 2004 Act. Under LA procedures, however, the term 'young people' for these purposes may also include those aged 16-17 on a Supervision Requirement through the Children's Hearings system.

ASBOs for young people: the legal and administrative framework

3.4 Perhaps the most significant change introduced to the ASBO procedure under the Antisocial Behaviour etc. (Scotland) Act 2004 was the extension of the regime allowing the courts to grant ASBOs in respect of persons aged under 16. Before granting such an Order, the Sheriff must be satisfied that an ASBO is necessary to protect another person or persons from ASB. Statutory guidance indicates that LAs and RSLs should therefore be able to demonstrate that other options have been explored before applying for an ASBO in respect of a young person.

3.5 The Act requires that, before granting a full ASBO in respect of a person aged under 16, a Sheriff must instruct the Principal Reporter to arrange a Children's Hearing, in order to determine whether an ASBO is necessary to protect another person or persons from ASB. A Sheriff faced with an application for an interimASBO in relation to a young person aged under 16 must have regard to any views on the case expressed by the Principal Reporter.

3.6 Where an ASBO is being considered, there should be a clear need to protect the community from the behaviour of the young person and there should be a level of agreement with other interested parties, including those engaged with the young person on a voluntary or compulsory basis and the Principal Reporter, that an ASBO is the most appropriate intervention in the circumstances (Source: para 65 in Scottish Executive (2004) Guidance on the Use of Antisocial Behaviour Orders http://www.scotland.gov.uk/Resource/Doc/26350/0025277.pdf)

3.7 Breaching the terms of an ASBO constitutes a criminal offence, irrespective of the subject's age. A young person in breach of their Order will be reported jointly to the Procurator Fiscal and the Children's Reporter. The Procurator Fiscal, in discussion with the Reporter, will decide on the appropriate action according to the circumstances of each case. In contrast to the position for adults, it is not possible to impose a custodial sentence on a person aged under 16 for breach of an ASBO. In this, the legislation reflects the view of consultees commenting on the Antisocial Behaviour Bill 2003 that it was unwise for young people in breach of Orders to be brought within the remit of the criminal justice system ¹⁵. Breach of ASBOs by 12-15 year olds will be jointly reported to the procurator fiscal and the children's reporter, as is appropriate in accordance with the Lord Advocate's guidelines. The procurator fiscal has the discretion to pass such cases to the Reporter where appropriate. In addition, young persons aged 16 or 17 who are subject to a supervision requirement will be referred jointly (Source: para 138 in Scottish Executive (2004) Guidance on the Use of Antisocial Behaviour Orders http://www.scotland.gov.uk/Resource/Doc/26350/0025277.pdf)

3.8 Breach of an ASBO will lead to a young person appearing before a Children's Panel where other measures to address ASB will be discussed. If the young person meets the secure criteria, which are independent of the ASBO regime, secure accommodation may be considered.

3.9 An alternative approach to dealing with ASB involving young people is electronic monitoring. The power to impose a movement restriction condition was provided for by Section 135 of the Antisocial Behaviour etc (Scotland) Act 2004, which amended Section 70 of the Children (Scotland) Act 1995. Any young person subject to electronic monitoring through the Children's Hearing system must meet the Section 70(10) criteria, and must also receive intensive support alongside a movement restriction condition.

Attitudes to the use of ASBOs for young people

3.10 At the start of the new regime in late 2004, more than half of LAs (62 per cent) reported that they expected to make use of the power to seek ASBOs against young people in the coming year (2004/05 national survey). This included most of Scotland's urban LAs as well as a number of rural councils. However, ASB practitioners interviewed at around the same time were sceptical about the extent to which such intentions might result in actual ASBO applications or Orders granted. It was emphasized that the checks and limitations on making use of ASBOs for young people (see above) made it likely that relatively few cases considered for an ASBO would actually proceed to the Court stage.

3.11 There was some anecdotal evidence that practitioners were even more doubtful that ASBOs for young people, if sought and granted, would prove effective. The absence of punitive sanctions for young persons breaching ASBOs was seen by some as illustrating a half-hearted approach that exposed the policy as largely symbolic.

3.12 All four case study LAs were committed to considering the possible use of ASBOs for young people. There was agreement among the LAs involved in the case study research that such action would be acceptable only as a last resort in exceptional circumstances. Before contemplating an ASBO application, therefore, a council faced with a persistently offending young person would expect to exhaust the potential of alternative measures such as mediation or an Acceptable Behaviour Contract ( ABC). In one of the four LAs, it was explicitly recognized that any ASBO application with respect to a young person should proceed only after an ABC had been demonstrated as insufficient to restrain the subject's behaviour.

3.13 However, despite this support for introducing ASBOs for young people in all four case study areas, clear tensions existed between partner departments and organisations in relation to ASBOs for young people. Typically, these stresses counterposed a strong support from some police, housing and ASB staff, with a more cautious or, in some cases, highly sceptical stance on the part of the Children's Reporter and youth justice professionals. It was not clear that such differences of view were becoming any less marked, as the new regime bedded in. In one LA, for example, 'deep seated opposition' to the use of ASBOs for young people was reported as remaining evident in 2006.

3.14 Some case study interviewees indicated that the appropriateness of extending the ASBO regime to young people was directly questioned, both within and outside the area of youth justice. One commented that the rules on breach of Orders simply take the young person back to the Children's Hearing System by way of 'an expensive trip through the courts'. Another saw the policy as:

'the introduction of English measures into a Scottish system [which has] resulted in a system which does not work and does not consider the needs of the young person'.

Procedures for ASBO applications for young people

3.15 Whilst the Children's Hearing system remains the primary forum for addressing ASB for this age group, the availability of ASBOs for young people has required LAs to develop procedures to involve the Children's Hearing System in cases where an ASBO application for a young person is being contemplated. By summer 2005, such procedures were already in place in most authorities. Development of these procedures generally involved a multi-agency approach, usually involving the following groups: ASB teams and coordinators; Children's Panel Members; Children's Reporters; community safety teams; health; LA education departments; LA housing departments; LA social work departments (children and families and youth justice); LA legal services; police; RSLs; and voluntary organisations.

3.16 The basic structure of the approach to considering ASBO applications for young people is similar to that used for adults, but the cast of stakeholder participants is different because of the involvement of the Children's Reporter's office. A young person may be referred for consideration as a 'possible ASBO case' in the view of an agency such as Housing or the police. The decision on whether an Order should be sought will then involve a cross-departmental case conference approach. Special multi-agency panels have been established to make such decisions in the case of young people. All four case study LAs had set up such groups, e.g. bringing together Housing, Education, Social Work, Youth Justice, Children's Reporter, police, legal and ASB staff. In Dumfries & Galloway, the Council's Youth Justice Screening and Resource Group ( YJSRG) was described as a response to specific requirements as outlined in national guidance ¹⁶.

3.17 The multi-agency panel may consider a particular case at successive meetings. Initial decisions in favour of 'lower level' measures (e.g. ABCs, mandatory supervision) may be succeeded by more serious deliberation on an ASBO application. Both prior to, and at this point, the panel would also look at support measures that would be offered to the offender alongside any 'enforcement style' measures (e.g. compulsory measures of supervision, ASBO). In all the case study LAs, it was reported that any instance involving a young person and progressing to an actual ASBO application would routinely involve the offer of additional support.

3.18 While the Children's Reporter typically participates in the multi-agency panels alongside a wide range of other professionals, the Reporter's role appears pre-eminent. In one case study LA, for example, any panel discussion on whether to make an ASBO application in respect of a young person would be chaired by the Reporter.

3.19 By the end of the current research, procedures for considering possible ASBOs in respect of young persons were in place in all four case study LAs. However, the perceived effectiveness of these varied somewhat from authority to authority. In one area, for example, there were concerns that the Education Department had been difficult to engage in the process. Collaboration between participating agencies had been hampered by reluctance to share certain relevant information, in particular relating to child protection. There had also been disagreements about which Council department should act as 'case manager'. In this area, at least, it would appear that procedures and inter-agency relationships had room for improvement.

ASBOs activity in respect of young people

3.20 At the start of the new regime (late 2004), more than half of LAs (62 per cent) expected to make use of the power to seek ASBOs against young people (2004/05 national survey). 29 RSLs also expected to make ASBO applications in respect of young people in the following year. Given the scale of activity envisaged, the combined impact would have led to an annual throughput of applications for ASBOs against young people totaling at least 80.

3.21 In practice, however, applications for ASBOs in respect of young people were first made only in 2005/06. And, while our survey shows that 96 'young persons' cases were considered for possible ASBOs during the year, these resulted in only four Orders being granted: two cases in Edinburgh, one in Dundee and one in Renfrewshire.

3.22 In the vast majority of the 96 cases, it was decided not to proceed with an ASBO application at that time; instead relying on other remedies. While an ASBO application might be made at a later date (e.g. following the 'failure' of alternative measures), this might not occur until the individual, having turned 16, had ceased to be a 'young person'.

3.23 Survey respondents were asked about the reasons for decisions not to proceed with court applications in cases involving young people. Overwhelmingly, the main reason was that, after due consideration, alternative measures were considered to be more appropriate. This suggests that agencies are taking time to consider all possible options for young people involved in ASB, seeking ASBOs only when other options are seen to have failed. Decisions not to proceed solely due to lack of support from the Children's Hearing System or insufficient evidence were extremely rare.

3.24 While the legal provisions enabling LAs to obtain ASBOs against young people have not remained entirely unexploited, the numbers of cases progressing to actual Orders has, so far, been substantially lower than initial estimates on the part of LAs and RSLs suggested. It would appear that this reflects, at least in part, the fact that the checks and balances built into the ASBO application process as it relates to young people can be seen as constraining the scope for taking cases forward to Court.

3.25 The provisions for 'young persons' ASBOs' have only recently been enacted and it could be that the scale of activity here will rise above that recorded in 2005/06. However, there is no sign at the moment of the pattern of ASBO use resembling that in England and Wales, where more than one-third of Orders are made against persons aged under ¹⁷.

Summary of main findings

• Since October 2004, the Courts have been empowered to grant ASBOs against persons aged 12 - 15 years old. The legislation lays down procedures requiring that, when relating to young people, ASBO application procedures are integrated within the Children's Hearing System.
• LAs have established special multi-agency groups and other procedures to deliberate on appropriate responses to anti-social behaviour by young people that might fall within the remit of ASBO powers. However, whereas appreciable numbers of cases are being reviewed under such arrangements, only a very small proportion have as yet led to formal ASBO applications. For the most part, it is determined that alternative approaches (e.g. ABCs) are preferable.
• While the new powers remain relatively recently enacted, it appears highly unlikely that the pattern of ASBO use in Scotland might come to resemble that in England and Wales, where young people account for a very substantial proportion of Orders.

« Previous | Contents | Next »