ASBOs and the European Court

There are some compelling arguments out there that ASBOs are actually an infringement on certain rights guaranteed in the European Convention of Human Rights (to which the UK is a signatory).

ASBOs have 2 stages: the first is categorized as a civil order which can prohibit certain behaviours or even prohibit an individual from being in certain areas. If that order is breached, however, it becomes a criminal offence – one punishable by up to 5 years in prison.

 When considering punishment for the breach of an ASBO, UK courts take into consideration the behaviour that led to the ASBO in the first place. However, the recipient of the ASBO is not entitled to criminal rights under the ECHR (namely Articles 5 and 6)

because the first stage is categorized as a 'civil' process. However, according to Chara Baklis, the European Court did not intend to allow states to avoid the application of Art. 6 by labelling a procedure as civil and not criminal (Baklis, EHRLR 2007).

The Court has also stated that ifthe behaviour in question is punishable by criminal law in that state (or in othermember states), then the state cannot characterize the procedure as civil oradministrative as the proper classification per the European Court is criminal. 

This means that there is a severe overlap in behaviour that is consider 'anti-social' and behaviour that can be prosecuted as a criminal offence. Thus, in the administering of the ASBO in thefirst place, the recipient would be entitled to the full range of rights underthe ECHR. There are also other considerations (the Engel criteria) that the European Court uses to determine whether an offence or procedure is criminal.

 The 2-strand approach has been labelled as innovative, but clearly there are some issues here as well.

 What do you think? Are there grounds upon which to challenge ASBOs? If so, should they be challenged?