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Criminalising Anti-Social Behaviour

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Abstract

This paper considers the justifiability 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 definition of anti-social behaviour employed in both the current legislation and the new proposals. This definition is objectionable because it makes criminalisation contingent upon the irrational judgements of (putative) victims, and its often modest preventive benefits come at a high cost to citizens’ liberty and autonomy. The paper then goes on to propose a new definition of anti-social behaviour that would meet these objections: that is, as a course of conduct that causes others to experience serious and justifiable anxiety about the safety of their local community. Whilst this definition identifies 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 minimising possible concerns of legality arising from the proposed definition’s uncertain scope.

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Notes

  1. Some behaviour that causes harassment, alarm or distress to others constitutes an offence under the Public Order Act 1986, s. 5. However, for the purposes of this offence, it must be shown that the defendant intended his behaviour to be, or was reckless as to his behaviour being, ‘threatening, abusive or insulting’: s. 6(4). The definition of anti-social behaviour, by contrast, has no such mens rea requirement.

  2. This paper concerns only these latter, principled criticisms. For an in-depth critique of anti-social behaviour legislation and policy from a socio-legal perspective, see Burney (2009).

  3. Numerous prominent commentators have criticised the ASBO and other two-step orders on these or similar grounds: see e.g. Ashworth (2004), Ashworth and Zedner (2010), Gardner et al. (1998), Simester and von Hirsch (2011, ch. 12), von Hirsch et al. (1995).

  4. For a survey, see Husak (2008, pp. 58–61). More recent entries include the various contributions to Duff et al. (2010) and Simester and von Hirsch (2011).

  5. Husak argues that this constraint is also implied by the doctrines of the general part of the criminal law itself: (2008, pp. 72–76).

  6. Some strict retributivists disagree, holding that moral wrongness alone provides the only principled constraint on, as well as the only valid positive reason for, criminalisation, and that the state is obliged to create institutions that aim to punish the morally deserving: see e.g. Moore (1997, chs. 2–4).

  7. The seminal philosophical treatments of the harm principle are those of Mill (1859) and Feinberg (1984). There are well-documented problems with the harm principle as a way of constraining the scope of the criminal law, which I will not dwell on here: see Duff (2007, ch. 6).

  8. The word ‘offence’ in this context is usually understood to refer to negative mental states generally, rather than to its ordinary-language synonyms such as ‘affront’ and ‘disgust’: see Feinberg (1985, p. 1).

  9. For clarity’s sake, assume that my abilities as a pilot are such that I would not physically endanger the passengers by performing this manoeuvre.

  10. In particular, see Thomson (1990, ch. 10.3).

  11. For further defence of the view that belief-mediation alone cannot explain why we ought not to treat negative feelings as we treat other kinds of harm, see Tadros (2011, pp. 39–42).

  12. Compare Feinberg (1985), who believed that the reasonableness of feelings should play no role in criminalisation decisions. Critics of Feinberg in this regard include Duff and Marshall (2006) and Simester and von Hirsch (2011).

  13. On the idea of criminal offences as presumptive wrongs for which the state may call us to answer, see Duff (2007, ch. 9).

  14. For further analysis of the role of the balance between liberty and security in criminalisation decisions, see Tadros (2008).

  15. On the importance of analysing the non-ideal effects of a prohibition in criminalisation decisions, see Schonsheck (1994, pp. 70–79), Tadros (2008, pp. 949–951).

  16. For an alternative kind of approach, which aims to rationalise anti-social behaviour legislation and policy in its current form, see Ramsay (2004, 2008).

  17. I use ‘threat’ here in its broadest sense, to refer to the possibility of any unwelcome state of affairs.

  18. For example, many of the most serious cases of anti-social behaviour involve ‘nuisance neighbours’. Whilst such cases are comparatively rare, they are much more likely than cases of other kinds to have a high impact on the quality of the lives of their victims: see Millie (2009, pp. 23–25). The explanation for this is, presumably, that such behaviour is more likely to inhibit victims’ peaceful enjoyment of their home lives.

  19. This insight—that wellbeing is significantly related to the extent to which some spheres of our lives are accessible to others—is sometimes thought to be the foundation of a right to privacy: see e.g. Gavison (1980).

  20. Typologies of anti-social behaviour have evolved in a way that reflects this. Most now include such categories as misuse of public space and ‘environmental’ damage alongside the previously familiar categories of neighbour disputes and direct intimidation: see e.g. Donoghue (2010, pp. 18–23), Millie (2009, pp. 11–13).

  21. See Protection from Harassment Act 1997 ss 1, 2 and 4.

  22. In this respect, I concur with James Q Wilson and George Kelling’s ‘broken windows’ theory of neighbourhood disorder: see Wilson and Kelling (1982). The UK experience seems to support this claim: perceptions of anti-social behaviour are higher in those neighbourhoods with high levels of ‘physical disorder’ (Flatley et al. 2010, p. 117). However, this claim should be distinguished from Wilson and Kelling’s more controversial hypothesis that the prevalence of these kinds of behaviour in a given neighbourhood in fact tends to lead to more serious crime occurring there. Contemporary criminology is generally against this idea: see Burney (2009, pp. 24–28) for a summary of the relevant literature.

  23. For an exploration of this idea, see Husak (2004).

  24. The idea that the wrongness of conduct provides a reason for, as well as a necessary condition of, criminalisation is a defining feature of what Duff calls ‘positive’ legal moralism: (2007, ch. 4.3).

  25. Noise Act 1996 ss. 3–5; Permitted Level of Noise (England) Directions 2008.

  26. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169,184.

  27. For further reflection on the relative merits of concrete ‘rules’ and abstract ‘standards’ in criminal law, see Schlag (1985), Alexander and Ferzan (2009, ch. 8).

  28. For theoretical treatments of these requirements of the rule of law, see Fuller (1969, ch. 2), Raz (1979, ch. 11). On the importance of such requirements to justice more generally conceived, see Finnis (1980, pp. 270–273).

  29. For further development of this kind of criticism of two-step prohibitions, see Simester and von Hirsch (2011, pp. 219–220).

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Acknowledgments

I am grateful to Andrew Ashworth and Victor Tadros for their comments on earlier versions of this piece, and to an anonymous reviewer for the journal for some detailed and challenging suggestions.

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  1. School of Law, University of Warwick, Coventry, CV4 7AL, UK

    Andrew Cornford

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Cornford, A. Criminalising Anti-Social Behaviour. Criminal Law, Philosophy 6, 1–19 (2012). https://doi.org/10.1007/s11572-011-9134-9

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