Red card troublemakers

In April 1999, local authorities in Scotland were granted the power to seek a new type of court order to deal with anti-social behaviour. Just over 10 years later, there can hardly be anyone in the country who does not know the phrase anti-social behaviour order.

The use of the ASBO to control antisocial behaviour was extended to housing associations in June 2003 and the current law was brought together in the Antisocial Behaviour Etc (Scotland) Act 2004 passed by the Scottish Parliament.

One of the major benefits of the law is the ability to obtain interim ASBOs. These are orders granted at the very start of legal proceedings which have the same force and effect as the full ASBO granted at the end of the proceedings. The interim ASBO will remain in force while the application for the full ASBO proceeds.

In Scotland, that process can regularly take between nine and 12 months. A recent case considered the question of whether a full ASBO would be ‘necessary’ in circumstances where there had been no further incidents of anti-social behaviour between the granting of the interim ASBO and the sheriff making the final decision on the necessity for the full ASBO.

On 4 July 2008 Glasgow Council obtained an interim ASBO against one Dean Ferguson. The anti-social behaviour consisted of substantial noise and disorder at Mr Ferguson’s home. The case proceeded through the usual court processes and in May 2009 the sheriff issued his final decision.
It was accepted as a matter of fact that between July 2008 and May 2009 Mr Ferguson had not been involved in any further incidences of anti-social behaviour. He had sought assistance to deal with certain problems and had improved his behaviour. His lawyer argued that the full ASBO was therefore not ‘necessary’, suggesting that granting one would be punishment for historical behaviour.

The council argued he had only moderated and improved his behaviour because he was compelled to do so by the potential consequences of breaching the interim ASBO, and thus sought the full ASBO.

The sheriff recognised that making a full order would have detrimental consequences to Mr Ferguson if he did not maintain his current good behaviour. However, the sheriff took the view that granting the full ASBO was a ‘proportionate and necessary measure’ and indicated that it offered necessary protection to other residents against the background of Mr Ferguson’s previous behaviour. The full ASBO was restricted to a period of six months from May 2009 given the substantial improvements in Mr Ferguson’s behaviour.

Although ASBOs have been available in Scotland for more than a decade, there are very few examples when cases are fully reported and contain full legal arguments. This case will be a very useful precedent in persuading courts of the continuing ‘necessity’ of full ASBOs even when an interim ASBO improves the behaviour of the resident.

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