Commentary on Sections Part 9: Sanctions Etc. Section 85: Anti-social behaviour orders
159.This section amends section 1 of the Crime and Disorder Act 1998 (the 1998 Act). Section 1 of the 1998 Act (as amended by the Police Reform Act 2002) permits the police, the British Transport police, local authorities and registered social landlords to apply for anti-social behaviour orders (ASBOs). Magistrates’ courts can issue orders to persons over the age of 10 years who have acted in an anti-social manner, where the order is necessary to protect others from further anti-social acts. Section 1 of the 1998 Act defines an anti-social manner as that which causes or is likely to cause harassment, alarm and distress to one or more persons not of the same household as the person against whom the order is made. An ASBO prohibits that person from doing anything described in the order. Equivalent orders are available in the county court and in the Crown Court under sections 1B and 1C respectively of the 1998 Act.
160.Subsection (2) amends section 1(1A) of the 1998 Act by adding housing action trusts (HATs) and English county councils to the list of relevant authorities who can apply for an ASBO or an order in county court proceedings. The addition of HATs and county councils to the list also makes them subject to the requirement in section 1E(4) of the 1998 Act to consult the police and the local authority for the area in which the person resides or appears to reside. Subsection (3) amends section 1(1B) of the 1998 Act. The effect is that applications by HATs are limited to applications for an order which would protect from anti-social behaviour persons who reside in or who are in the vicinity of premises provided or managed by HATs and applications by county councils are limited to applications for an order which would protect from anti-social behaviour persons within the county of the county council.
161.Subsection (4) inserts new subsections (10A) and (10B) into section 1 of the 1998 Act. Section 1(10A) will allow a local authority to prosecute for breach of an order where it is the relevant authority which obtained the order or where the person subject to the order resides or appears to reside in the authority’s area. The Crown Prosecution Service will retain discretion to prosecute in relation to breach of an ABSO; this section confers a concurrent power on local authorities.
162.New subsection (10B) will give applicant authorities a right to attend ASBO breach hearings in the youth court. Section 47(2) of the Children and Young Persons Act 1933 sets out the persons who have a right to attend a hearing at a youth court and section 1(10B) extends this automatic right of attendance to one representative from the relevant authority who obtained the order. This will enable the authority to monitor the proceedings and report back on the outcome to colleagues, as well as to support witnesses and victims as necessary.
163.Subsection (5) inserts new subsections (3A), (3B) and (3C) into section 1B of the 1998 Act. These provisions enable relevant authorities to apply to have a person:
	who is not a party to the principal proceedings in the county court, but
	whose anti-social behaviour is material to those proceedings,
to be joined to the proceedings so that an order can be applied for against that person. Subsection (8) enables the provisions inserted by subsection (5) to be piloted for a specified period and to be commenced on different dates in relation to different age groups.
164.Subsection (6) extends section 1B(5) of the 1998 Act to allow an individual against whom an order has been made, subsequent to his being joined to proceedings in the county court, to apply to the court which made the order for the variation or discharge of the order.
165.Subsection (7) amends section 1E of the 1998 Act to remove the requirement for a county council making an application for an ASBO to consult the council for the area in which the person who is the subject of the application resides in a case where there is no district council for that area. In such a case, the county council is the only relevant council. The amendment prevents a county council from being required to consult itself.
166.Subsection (8) inserts a new subsection (1B) into section 9 of the 1998 Act to require a court making an ASBO against a person under the age of 16 to make a parenting order against the parents of that child if it is satisfied that the relevant condition contained in section 8(6) of the 1998 Act is fulfilled (or, if it is not so satisfied, to state in open court why it is not). The condition under section 8(6) is that the parenting order would be desirable in the interests of preventing repetition of the behaviour which led to the ASBO.