One of the most criticised aspects of recent criminal justice legislation has been the proposal to introduce into Irish law anti-social behaviour orders (Asbos), already in existence in the UK since 1999, where they have given rise to many absurdities.
An Asbo was recently issued against a woman who answered her front door in her underwear. The main criticism here has focused on Asbos as a tool in tackling anti-social behaviour among children. By issuing an Asbo for behaviour that is not criminal, an avenue is created for the introduction of the child into the criminal justice system by the mere breach of the order.
The Children's Ombudsman, the Human Rights Commission and various NGOs have all pointed out that this ran counter to both the letter and the spirit of the 2001 Children Act, which sought to tackle offending behaviour by children within the community, seeing criminal sanctions as a last resort.
There is no doubt that some children do engage in anti-social behaviour, and that it can cause great distress to vulnerable people, notably the elderly, single mothers and people who are otherwise isolated. But there is also little doubt that criminalising behaviour that may be little more than the product of boredom, familial neglect or both, could ultimately make the problem worse by introducing such children into a criminal community.
The Minister for Justice did listen to some of the criticisms, and asked the newly-empowered Minister for Children, Brian Lenihan, to come up with proposals that would harmonise the proposed Asbos with the Children Act. He has done so, and the measures now proposed greatly reduce the negative aspects of the earlier proposal.
Asbos will now only be sought against children who have already been through the community-based sanctions provided for in the Children Act, including good behaviour contracts and juvenile diversion programmes. A Garda not below the rank of superintendent will have to seek the order in the Children's Court, which is to be resourced to take into consideration the many issues surrounding offending behaviour by children. The issuing of the order will be subject to judicial discretion, and will follow evidence of an entrenched pattern of behaviour.
Asbos, it now appears, will only be issued as a last resort. They will be treated, according to Mr Lenihan in an interview in this newspaper yesterday, like barring orders. They will be made known only to those who need to be aware of them, rather than published in the media. These changes are welcome.