New Labour's ‘tough on crime’ mantra heralded the introduction of a range of criminal justice policies intended to turn this into a reality, a tendency that has brought new instruments of punishment and control every year since 1997. The earliest and still the most controversial was the introduction of the Anti-Social Behaviour Order (ASBO) in the 1998 Crime and Disorder Act. The measure immediately attracted criticism for its legal form and for its potentially punitive reach. It stands at one end of a punitive spectrum that ranges through to a huge increase in imprisonment and indeterminate sentences that occurred under the Blair administration.

As David Downes has said: ‘[H]aving adopted such punitive measures as Anti-Social Behaviour Orders towards offenders at the more trivial end of the spectrum … the government has little left in its locker, except more imprisonment, for the truly serious’ (Downes, 2007: 3). As this chapter will show, the ASBO itself, in the 21st century, has acquired a more overtly punitive character, in both law and practice. First, however, some basic legal arguments concerning the punitive nature of the ASBO will be rehearsed.

In designing the instrument that was originally called the ‘community safety order’, the Labour government was determined to bypass the prosecution process that it considered ineffective in dealing with persistent neighbourhood nuisance, and at the same time to bind alleged perpetrators with tailor-made restrictions enforced by threat of punishment. Punishment was therefore the second of what Simester and von Hirsch (2006) have called ‘two-step prohibitions’, of which there are several other examples. There is technically no punishment involved in a civil order (step 1) such as the ASBO, which delivers prohibitions designed ‘to protect persons … from further anti-social acts by him’ (1998 Crime and Disorder Act, section 1(1)(b)). Only if the prohibition is flouted does a criminal offence occur that can be prosecuted (step 2) and punished by up to five years’ imprisonment.

The appellants in Clingham and McCann sought to challenge the status of the ASBO, arguing that in reality and substance the nature of the process was criminal, given the content of the orders and the criminal character of breach proceedings. The issue at stake was the hearsay evidence that supported allegations of serious and persistent abuse and crime by the youths in their respective neighbourhoods.