ASBOs and the Community: Towards a New Model of Liability?

Abstract

his thesis argues that anti-social behaviour orders (ASBOs) are the imperfect expression of a new type of community-based liability which seeks to regulate an individual’s behaviour in the context of his relationship with a particular community. The combination of civil and criminal elements in ASBOs stems from a political will to address responsibility for behaviour which is harmful to a community. Despite the central conceptual role played by the community relationship in ASBOs, legal provisions have failed to define the nature of that relationship, relying on judicial discretion to shape the orders’ application in practice. Judicial interpretation of ASBO legislation confirms the alternative nature of the orders, and the importance of the concept of community in creating a different type of liability. From a theoretical perspective, communitarian principles provide a basis for explaining how the individual/community relationship can justify and shape liability. The figure of a responsible individual constituted by his social interactions forms the premise of this type of liability, and the concept of community in this context is established as a fluid rather than rigid notion, defined as a social group connected by a range of specific interests. A model of community-based liability can be constructed from these principles: interference with a community’s interests can justify the imposition of liability, provided the individual’s behaviour represents a wilful engagement with that particular community. This model of liability provides a useful framework through which to re-examine ASBOs. While the case law broadly adopts the defining elements mentioned above, the use of ASBOs shows examples of misapplications of the principles of a community-based model of liability. Nevertheless, this framework also shows how ASBOs can be seen as a flexible and potentially integrative approach to regulating different types of individual/community relationships, despite the missed opportunities sometimes created by their practical application.