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Chapter Seven - Conclusions

7.1 This chapter briefly summarises and discusses the key findings and implications of the study before going on to make some recommendations on the future of ASBOs, with a particular focus on how ASBO activity should be monitored and researched in the future.

7.2 At the outset, it is important to emphasise that this study was a review of ASBO use in Scotland and not an evaluation. Although outcomes and measures of effectiveness were considered, this was not the primary focus of our research, which, instead was to report on ASBO usage across Scotland. If the Scottish Executive wanted to consider the efficiency and effectiveness of ASBOs in detail, a full evaluation would need to be undertaken.

Discussion of Main Findings and suggestions for future research

7.3 The number of ASBOs has been increasing steadily over the last three years, although the rate of increase now seems to have fallen back slightly. However, ASBO activity remains concentrated in a small number of LAs. This pattern is only partly attributable to the probable incidence of ASB serious enough to justify such action. In some 'low ASBO use' areas, there remains a reluctance to use this mechanism, partly justified by the assertion that the active use of alternative measures reduces or removes the need for ASBOs. There remains some question as to whether all LAs are as yet making full use of ASBO powers.

7.4 In England and Wales, the growth in the use of ASBOs has been more rapid and, now stands well above the rate (relative to household population) in Scotland.

7.5 ASBOs as a tool have a fairly prominent place within ASB strategies. However, except in cases of very serious misconduct (e.g. assault or threatening behaviour), their use is generally restricted to cases where other measures have already been used and failed. Flexibility of approach was cited as a key part of the process when deciding whether an ASBO should be pursued. As such, there are no specific 'rules' associated to the circumstances in which an ASBO should be sought. Nevertheless, dedicated policies and procedures are increasingly being developed to guide ASBO use and have helped to develop multi-agency working.

7.6 The process for taking an ASBO application into Court appears to have improved for a number of reasons. It has been assisted by greater expertise among both ASB staff and Sheriffs about the process. Timescales have also improved with applications for interim Orders normally being heard within a matter of days. Therefore, Orders can now be granted within very short periods of time, providing the LA with the means of addressing serious ASB quickly and efficiently.

7.7 The legislation lays down procedures requiring that, when relating to 12-15 year olds, ASBO application procedures are integrated with the children's hearing system. LAs have established special multi-agency groups and other procedures to deliberate on appropriate responses to ASB by these 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.

7.8 While the new powers are 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. One important factor here is that the number of adults subject to ASBOs in England is reduced due to the availability of ASB injunctions (the Scottish interdict is considered a much less effective ASB remedy and is, therefore, relatively little used in this context).

7.9 The reasons for this can only be speculated at the moment, but it may be that the existence of the Children's Hearing System in Scotland and the range of intervention options available, particularly those that also offer targeted support, means that ASBOs are rarely regarded as the most appropriate option for those under 16 years of age. Given the small number of ASBO cases involving young people, it was not thought appropriate to include them in the research, particularly as they may be identifiable from any description of their cases. More specific research would be required to find the exact reasons for low ASBO usage for the under 16s. If the numbers increase, case study research may then be suitable to examine the experiences and impacts of under 16s on ASBOs.

7.10 Most ASBO applications relate to ASB in and around the perpetrator's home. Most cases considered for ASBO applications are triggered by 'excess noise' within the home. The majority of perpetrators subject to an ASBO live in the social rented sector, are male and are over the age of 21. Eighty per cent of cases involve ASB committed by a lone perpetrator. In at least one-third of cases considered for an ASBO, the perpetrator has some record of previous ASB. Analysis of actual ASBOs shows that the prohibitions contained in the ASBO are generally a close match to the related offence.

7.11 Of the ASBO cases reviewed, a significant proportion allegedly involved criminal activities. While in most of these cases, this related to relatively low level crime, in a significant number of cases the alleged offence was very serious. In a number of cases, charges were brought against the persons committing the offences with ASBOs being used instead of, or alongside such action. There is some evidence to explain this. Some LAs have taken the stance that certain activities are antisocial (e.g. shoplifting and housebreaking) and have incorporated this into their policy on when ASBOs should be appropriately used. There appear to be two reasons for this: (1) individuals involved have numerous previous convictions but the resulting penalties have not resulted in any positive change in behaviour, and (2) the behaviour in some cases involves other acts that can be recorded as antisocial (e.g. harassment of LA staff). In the housebreaking cases, it was the Police that were pushing for ASBOs to be sought, perhaps reflecting a view that the standard criminal penalty for such crimes was insufficient and liable to be less severe than that for breach of ASBO. It is also the case that the boundary between criminal activities and ASB in some cases is a fine one, e.g. criminal harassment of neighbours and ASB involving the use of a weapon. The availability of evidence is clearly a key issue in deciding whether to pursue criminal charges or an ASBO. It is beyond the scope of this research to investigate fully the reasons for the use of ASBOs for criminal offences, but it is clearly an important issue and further research would need to be undertaken to determine the instances in which ASBOs are used and why by sentencers.

7.12 There were vulnerability issues and mitigating circumstances in a number of cases involving persons subject to ASBOs, e.g. substance misuse, mental health difficulties and learning difficulties. While case study LAs generally took such factors seriously when considering how to tackle ASB, this did not necessarily mean a total avoidance of ASBO applications in such cases. A consequence could be support measures being put in place alongside the application. The extent to which this is done is not clear and further research of these vulnerable cases would be required to assess the levels and appropriateness of support measures as well as their effectiveness.

7.13 The proportion of ASBOs breached is around one in three. The breach rate across individual LA areas varies considerably. Breach of an ASBO was taken seriously, by housing providers, by the police and by the courts.

7.14 It was found that further complaints were recorded in 60 per cent of ASBO cases. Where such complaints were made to the LA rather than directly to the police, the matter was normally referred to the police to determine whether it should be investigated as a possible breach of the Order. This reflects the fact that breach of an ASBO is a criminal offence. However, there remains a question mark over the effectiveness of joined-up working and information sharing between the police and LAs in relation to monitoring observance of ASBO conditions and responding to alleged ASBO breaches.

7.15 In over one-quarter of cases reviewed, there was a perceived improvement in perpetrator behaviour following the Order being granted. Over 20 per cent of these cases resulted in either an eviction or the termination of a tenancy. Where the perpetrator was evicted from their tenancy, such instances certainly brought relief to the communities being affected by the ASB and, in this sense, the ASBO could be called 'a success'. However, household movement can mean that the problems associated with the ASB are not being adequately addressed and may be displaced elsewhere. In 29 per cent of cases examined, it was considered that there had been no marked improvement in perpetrator behaviour at that point, although this is not to say that there would be no change in the future.

7.16 Around one-third of cases were seen as demonstrating an overall improvement in behaviour post- ASBO, nonetheless evoked further complaints or claims of breach. Breached ASBOs therefore do not necessarily imply no positive impact.

7.17 Further research is being undertaken by Scottish Executive researchers on ASBO breach that involves tracking a sample of cases to conclusion to help provide a more reliable measure of breach rate. The findings from this research will be published in due course.

7.18 A range of other enforcement-style response may be used by LAs and RSLs prior to, alongside, and following on from ASBO applications. Acceptable Behaviour Contracts ( ABCs) are being used increasingly widely as a means of tackling ASB. In only a small proportion of ASBO cases, however, are ABCs used as a precursor to ASBO action. This is related to fact that over half ABCs relate to under 16s, an age group that, as reported above, is at present rarely subject to ASBOs. Similarly, very few ASBO applications follow on from unsuccessful attempts at mediation. This probably reflects the fact that ASBO applications tend to involve misconduct seen as too serious to be susceptible to mediation.

7.19 ASB-triggered eviction actions have been declining in recent years, possibly, in part, as a consequence of the availability of ASBOs as an 'alternative response' to ASB involving social renting households. However, it could also be that people are leaving their homes before evictions are implemented. While the scale of its use remains modest, tenancy conversions to SSST for social renters subject to ASBOs is becoming more common. The termination of these tenancies is appropriately seen as analogous to ASB-triggered eviction. This calls for amendments to the way that the Scottish Executive collects and publishes statistics about ASB evictions (see below). Nationally, social renters having their homes repossessed in connection with ASBO actions account for around one ASBO action in ten. Further research would be required to assess fully the impact of ASBOs on evictions, tenancy conversions and repossessions.

7.20 We are aware that LAs have a number of initiatives to tackle ASB, some of which are subject to reviews and evaluations. It would be a useful exercise to undertake to map out all of the initiatives Scotland-wide as well as the results from the available evaluations and reviews. This would help the Scottish Executive and all the relevant stakeholders better understand the approaches to tackling ASB and the effectiveness of these approaches and help place the differential use of ASBOs in the appropriate context.

Suggestions for Ongoing Monitoring and Further Research

7.21 In order to continue to take this work forward, the Scottish Executive could adopt a number of approaches.

7.22 It could decide to cease monitoring activity altogether. Although, this would mean no additional cost to the Executive, it would also mean that it would not acquire any further data on ASBO usage and effectiveness in Scotland and, therefore, could not track the changes from this research onwards. Given the continuing interest in the use and utility of ASBOs, this would seem a questionable option.

7.23 We would, therefore, see ongoing monitoring activity as highly desirable, particularly since ASBOs are still a relatively recent development in Scotland, they are an important part of the Scottish Executive's ASB strategy, and their use across Scotland tends to vary quite considerably. Instead of undertaking an exercise as detailed as this research, the Scottish Executive could simply repeat the survey element on an annual basis. The survey is still a costly and time-consuming process, so the Executive may wish to consider a shorter questionnaire, obtaining only headline data, for example on the number of ASBO applications and numbers granted (both interim and full) by key contextual variables such as age, gender, type of behaviour, etc. as well as data on breaches. To further save on cost and time, this questionnaire could just be circulated to LAs, with data for the RSLs being taken from the APSR data.

7.24 However, the research team's experience in undertaking annual surveys since 2004 demonstrates the complexity of recording and reporting of data on ASBO use. A major challenge is the need to record both interim and full ASBOs, while avoiding double counting in summing the numbers of cases involved. Similarly, ensuring that RSLASBOs are fully enumerated without being double counted is a particularly time consuming piece of work. Many initial returns in each survey were found to contain inconsistent and/or implausible statistics. Only through fairly intensive communication with the relevant respondents was it possible to resolve such problems. An attempt to validate 2004/05 statistics in the course of the 2005/06 survey revealed many inconsistencies with the previously reported figures.

7.25 Given the difficulties described above, we would suggest that the Scottish Executive should consider directing LAs to hold a register of core data on ASBOs and have a named department or division responsible for the collation and reporting on this information. A copy of the dataset would be submitted annually to the Executive for analysis. Within such a system, each case involving an ASBO application would be designated with a unique reference number and, crucially, it would be possible to track the progress of cases longitudinally. This would also help to avoid the problem of different parts of the LAs holding their own data on ASBOs, which, as we have found, can often be inconsistent. This is the broad approach that we would recommend.

7.26 As part of such an approach, LAs could be instructed to hold outcome data systematically on file and updating this as appropriate, even some time after the Order. This would significantly help any future evaluation activity.

7.27 The above approach could imply that RSL activity on ASBOs be monitored simply through Communities Scotland's annual APSR statistical return. However, if this approach is adopted, the Scottish Executive needs to be aware of some issues in relation to APSR data. The 2005/06 ASBO survey was issued to all RSLs and LAs operating in Scotland. Survey returns by RSLs were partial and did not provide a comprehensive picture of ASBO usage within the sector. It was, however, agreed that Communities Scotland APSR data on numbers of ASBOs should substitute data collected from the survey.

7.28 We undertook a validation exercise of the survey by cross-checking the data with the number of ASBO applications and ASBOs granted recorded in the APSR. In the majority of cases, the validation exercise found that the data recorded in the survey to be the same as the APSR. However, discrepancies raising questions about the validity of APSR data were identified in a small number of cases.

7.29 One important issue relates to the definition of an 'application'. The lack of guidance within the APSR suggests that there is room for misinterpretation of the questions by RSLs. This can result in over or under recording of figures for a number of reasons.

• Interim ASBO applications may simply not be recorded. In one case, it was assumed that the APSR related to full ASBO applications only, hence an interim ASBO was not included in the return.
• There may also be confusion in relation to the stage at which an application actually becomes defined as such. Some RSLs and LAs can define an ASBO application as a case that is put forward to a multi-agency case conference for consideration as possibly meriting an ASBO, but where this does not actually result in a formal application to the Court.
• There is a risk of double counting. ASPR guidance notes do not state whether it is seeking to collect data on ASBO cases or the number of applications (regardless of type), therefore a case initially granted as interim where the RSL subsequently returns to court and obtains a full Order may be counted twice. As the use of interim ASBOs increases, the extent of double counting is likely to rise.
• Another factor liable to give rise to double counting is where a LA or partner RSL is also involved in some way in an ASBO application initiated by an RSL. In such circumstances, it is quite possible that each organisation will record the Order as their own.
• It is not clear whether RSLs should include CRASBOs relating to their tenants and, in some instances, imposed by the courts partly thanks to RSL action. At least one major RSL now routinely includes CRASBOs in its published figures on ASBOs granted.

7.30 These observations call for amendments to the APSR return.

Recommendations

7.31 Our recommendations follow on directly from the conclusions above. As this is a review of ASBO usage, the purpose of these recommendations does not concern the policy of ASBOs itself, but focuses on additional work that could be done to further evaluate the Orders, their outcomes and the usage of them.

• The Scottish Executive should consider undertaking a full evaluation of ASBOs at a future date to determine their efficiency and effectiveness, perhaps in relation to alternative measures. This could be done in conjunction with a mapping exercise of all initiatives to tackle ASB across Scotland.
• The use of ASBOs for 12-15 year olds requires further investigation, especially if the number of cases for these young people increases.
• ASBOs are being used for dealing with criminal offences, including some serious offences. The use of civil orders in these instances requires further research to establish the reasons why and revised guidance to sentencers if this is thought to be appropriate.
• Further guidance is also required to improve multi-agency working, instructed by good practice, for example in the routine sharing of information between the police and the LAs on breach data.
• The impact of ASBO usage in evictions, tenancy conversions and repossessions also calls for additional work.
• To maintain monitoring of ASBO activity, the Scottish Executive should direct LAs to extend the register of core data that they hold on ASBOs so that it meets Scottish Executive requirements. The LAs should also have a named department or division responsible for the collation of and reporting on this information.
• The Scottish Executive should consult with LAs to help to determine their future training needs in relation to ASBOs and help to facilitate this training in order to guide good practice and ensure that LAs are up-to-date with the latest developments.

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