Criminal Law generally reacts to something that has already happened and only tries to prevent the crime happening in the first place by deterrence, i.e. by persuading the potential offender that, if a crime is committed, he, or she, will be caught and punished in a way that is unpleasant.

Such an approach, which has been the way for many hundreds of years, inevitably leads to innocent people having to become victims before the law will intervene. Clearly it would be better if we came up with some scheme, which stopped people from committing the crime in the first place.

The problem is attempting to find a balance between preserving the rights of the many, i.e. the innocent members of the public, against taking away the rights of the few, i.e. the accused. This is not an easy exercise. For example, there has been some publicity recently concerning the number of accused persons released from custody on bail, who commit further crimes whilst on bail. It follows that a number of people accused of committing a crime are released into the community and go on to commit further crimes and on occasion serious crimes. Had they been locked up the first time, there would have been no further victims. Thus clearly one way to protect the public would be to simply lock up any, and every, person accused of a crime. If they were locked up, they would not be able to commit further crimes and other potential victims would be protected. This protects the rights of the many.

What though if he is innocent of the crime he is charged with committing? What if the circumstances giving rise to the crime are so unusual they are unlikely to happen again? 80% of killings are within the family and the vast majority are of no risk to others. Is simply charging someone with a crime, however serious, enough to justify keeping him in jail? How would you feel if you were the person accused?

No one should need to be told not to break the law and to act in the way society expects. Criminal Law has more than enough weapons available to strike at those who breach it. What it apparently is, or at least is perceived to be, not doing is preventing crimes from being committed.

Some think our society is breaking down with an increase in selfish, loutish, ill-mannered, inconsiderate behaviour. Neither authority, nor the reasonable expectations of others, is any longer respected. There are only “rights” held by individuals and no “duties” due to anyone else. How often do we hear the cry “it’s my right”, when far too often it is not? Into this moral minefield step anti social behaviour orders [ASBOs].

It is said that yellow boxes at road junctions are there only for the poor driver. Good drivers know not to block the junction. ASBOs are the Criminal Law equivalent. They are designed to prevent people from acting in an antisocial way in the first place and thus to prevent crimes from being committed. In that regard they are clearly desirable and protect the rights of the many.

ASBOs are made by a Sheriff following upon an application normally made by the local authority. There has to be a course of anti-social conduct before it can be granted. The local authority could be made aware of this by complaints from individuals affected or, more usually, from the police. Breach of an ASBO is a criminal offence carrying a possible 6 months prison sentence. The conduct itself does not need to be a crime. It is sufficient if there is a breach of the order. For example, when someone is causing trouble in a particular neighbourhood , he will usually be made the subject of an ASBO banning him from that neighbourhood. In making the order, the Sheriff gives some relief to the beleaguered residents. If the person then even steps into that neighbourhood, he is in breach of the ASBO and could be sent to prison.

You may think this to be a marvellous weapon and it is undoubtedly a powerful one. I just wonder where the balance between the right of the individual and the neighbours lies. In the above example, which is not uncommon or unusual, he is prevented from even being there. The majority of youth crime, and it is principally at youth that ASBOs are aimed, is committed close to home. It is likely that area from which he is excluded includes his home. Without the ASBO he would be doing nothing wrong to be there and simply be exercising his rights just like any other member of society. Indeed most people would wish to encourage home life. Not surprisingly, the right to respect for one’s private and family life and home is one of the rights specifically guaranteed in the European Convention on Human Rights. Because of the ASBO he is a criminal if he is even there.

Though ASBOs have been extended by the Executive to cover children as young as 12, I, for one, am not surprised that the Police and local authorities have so far shied away from their use with young children.

The UK is already facing severe criticism by, and possible sanction from, the European Court of Human Rights given our willingness to prosecute children where there is a huge effort to meet their basic Human Rights. Where do ASBOs stand in this? Have we got the balance right?