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Crim Law and Philos (2012) 6:119
DOI 10.1007/s11572-011-9134-9
ORIGINAL PAPER
Andrew Cornford
Published online: 16 November 2011 Springer Science+Business Media B.V. 2011
Abstract This paper considers the justiability of criminalising anti-social behaviour through two-step prohibitions such as the Anti-Social Behaviour Order (ASBO). The UK government has recently proposed to abolish and replace the ASBO; however, the proposed new orders would retain many of its most controversial features. The paper begins by criticising the denition of anti-social behaviour employed in both the current legislation and the new proposals. This denition is objectionable because it makes criminal-isation contingent upon the irrational judgements of (putative) victims, and its often modest preventive benets come at a high cost to citizens liberty and autonomy. The paper then goes on to propose a new denition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justiable anxiety about the safety of their local community. Whilst this denition identies a serious form of wrongdoing, its precise scope is inevitably uncertain. The paper thus concludes that we have good reason to use two-step prohibitions such as the ASBO to regulate such conduct, so as to enable the use of the criminal law against it whilst mini-mising possible concerns of legality arising from the proposed denitions uncertain scope.
Keywords Criminalisation Anti-social behaviour ASBOs Two-step prohibitions
Harm principle
Introduction
The Anti-Social Behaviour Order (ASBO) is a British criminal justice measure which aims to prevent anti-social conductcurrently dened as behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as [the actor] (Crime and Disorder Act 1998, s. 1(1)). As a criminal prohibition, it is theoretically interesting because of its two-step structure. Ostensibly, the ASBO is not a criminal penalty but a form of civil injunction. Anti-social behaviour, as dened above, is
A. Cornford (&)
School of Law, University of Warwick, Coventry CV4 7AL, UK e-mail: [email protected]
Criminalising Anti-Social Behaviour
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not a criminal offence: rather, it is the conduct that qualies one for an ASBO. If a court is satised, following either civil application proceedings or a criminal conviction, that a defendant has...