What is an ASBO?

When does the behaviour of neighbours tip-over from being irksome to antisocial?  In this article, we discuss the definition of antisocial behaviour and its potential implications.

Whilst many will have their own definition of antisocial behaviour, the legal meaning of the term is defined in the Antisocial Behaviour etc. (Scotland) Act 2004 (“the 2004 Act”). Section 143 of the 2004 Act states antisocial behaviour as being where a person “(a) acts in a manner that causes or is likely to cause alarm or distress; or (b) pursues a course of conduct that causes or is likely to cause alarm or distress” to at least one person who is not of the same household as the person engaging in the antisocial behaviour.

The 2004 Act proceeds to define “conduct” as including “speech”. In practice, the kind of behaviour that usually causes action to be taken includes playing loud music, shouting, screaming, swearing, fighting and banging.

The 2004 Act additionally prescribes that the behaviour must have occurred on at least two occasions to constitute a “course of conduct”.

What is an ASBO?

The 2004 Act outlines that ASBOs are intended to protect persons affected by antisocial behaviour (termed ‘relevant persons’) committed by a person engaging in antisocial behaviour (termed a ‘specified person’) from further instances of antisocial behaviour. As such, the purpose of an ASBO is to prevent antisocial behaviour, as opposed to punishing people for engaging in antisocial behaviour.

Being subject to an ASBO may also harm a person’s employment prospects as an enhanced disclosure certificate will usually state that the applicant has been subject to an order.

Who can seek an ASBO?

It is a common misconception that it is the responsibility of the Police to seek an ASBO.  However, the 2004 Act grants local authorities and registered social landlords the power to apply for ASBOs (sections 4 and 18). It is worth noting that an ASBO can be sought and granted against a person regardless of their housing status, meaning that owner occupiers as well as tenants can be subject to an ASBO.

What will the court consider when deciding whether to grant an ASBO?

In order for an ASBO to be granted, the conditions set out in section 4(2) of the 2004 Act must be met.  Those conditions are –

• That the specified person is at least 12 years of age;
• That the specified person has engaged in antisocial behaviour towards a relevant person; and
• That an antisocial behaviour order is necessary for the purposes of protecting relevant persons from further antisocial behaviour by the specified person.

For the purposes of determining whether a person has engaged in antisocial behaviour, the court will disregard any act or conduct of the specified person which that person shows was reasonable in the circumstances.

Where a person’s behaviour is particularly egregious, an applicant applying to the court for an ASBO may also wish to apply for an interim ASBO, which will apply pending the court’s decision on whether to grant an ASBO. Per Section 7 of the 2004 Act, the conditions for granting an interim ASBO are akin to the conditions for granting an ASBO, with the exception that the court need only be satisfied that the person has engaged in antisocial behaviour on the face of the circumstances of the case. As the court will require to satisfy itself that a person has engaged in antisocial behaviour on the balance of probabilities prior to granting a full ASBO, the test for an interim ASBO is somewhat less onerous. Unlike some other forms of interim order, the application has to be intimated to the specified person prior to the hearing on whether the interim ASBO should be granted.

What happens when there is a breach of an interim ASBO/ASBO?

The provisions in relation to a breach of an interim ASBO/ASBO are set out at Section 9 of the 2004 Act.  After an interim ASBO/ASBO has been granted, the interlocutor granting the interim ASBO/ASBO and the certificate of service of the order on the applicant have to be provided to with Police Scotland in order to allow them to enforce the terms of the ASBO.

It is an offence for a person who is subject to an ASBO or an interim ASBO, without reasonable cause, to do anything that the order to which the person is subject prohibits the person from doing. Although ASBOs are civil orders, a breach of an ASBO is a criminal offencea person found guilty of an offence of this kind can be sentenced to imprisonment or fined.

When should local authorities and registered social landlords consider not seeking an ASBO?

Sometimes, instances of antisocial behaviour require to be addressed in ways other than through seeking an ASBO.

Antisocial behaviour can often be displayed by individuals who are suffering from mental illnesses. Therefore, it is important that local authorities and registered social landlords establish whether the individual engaging in antisocial behaviour is open to accepting support, such as assistance from social services.

It may be appropriate for advice to be sought from medical or other professionals and support should be offered before an ASBO is considered in cases where an individual appears to be suffering from a mental illness, or indeed any other disability.

It may also be appropriate to offer to facilitate mediation between the parties involved prior to seeking an ASBO.

Where the person engaging in antisocial behaviour is a tenant, local authorities and registered social landlords may also wish to consider converting the offender’s tenancy to a Short Scottish Secure Tenancy or, indeed, evicting the offender.