![handle is hein.journals/crimlpy6 and id is 1 raw text is: Crim Law and Philos (2012) 6:1-19
DOI 10.1007/s11572-011-9134-9
Criminalising Anti-Social Behaviour
Andrew Cornford
Published online: 16 November 2011
© Springer Science+Business Media B.V. 2011
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 pro-
posed 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 legis-
lation and the new proposals. This definition is objectionable because it makes criminal-
isation 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 iden-
tifies 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 definition's 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 conduct-currently defined 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 theo-
retically 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 defined above, is
A. Cornford (E)
School of Law, University of Warwick, Coventry CV4 7AL, UK
e-mail: A.Cornford@warwick.ac.uk
Springer](ViewImageLocal?handle=hein.journals/crimlpy6&div=1&collection=&method=preview&ext=.png&size=3)
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