Paul Firth: Asbos: We are talking here about crime. Pure and simple

There are greater and lesser offences, but we are talking about crime. Pure and simple. Lesser crimes may lead to more serious offences and that is why they should be nipped in the bud.

The anti-social behaviour order (Asbo) was introduced by the 1998 Crime and Disorder Act. It was aimed primarily at youngsters, just setting out on the road to crime. But it rapidly became a monster, useful for banning all kinds of non-criminal activity among all ages.

Loud music and baseball caps have been targeted by Asbos, along with playing football in the street and using a video camera.

One of my own regrets is an Asbo I made while sitting as a District Judge. The subject, a man in his 30s, was clearly mentally ill, but refused to be assessed.

He had become a danger to himself and those around him through an addiction to petrol. He was homeless and carried his few possessions in plastic shopping bags. One bag regularly contained a litre or two

of petrol.

While it seemed like a sensible idea to ban him from garage forecourts and from carrying petrol in such an unsafe fashion – made all the more dangerous by the unidentified youths who thought it amusing to light matches and throw them at him – the consequences of the Asbo became wholly disproportionate.

As is the case with more than half of all such orders, this one was breached. Breach of an Asbo is a criminal offence, carrying a maximum sentence of five years, longer than for many offences of violence. The first and possibly even the second breach can be treated with some leniency, but eventually an inadequate ends up in prison for walking on to a garage forecourt.

Herein lies one of the Asbo's problems. It turns sometimes non-criminal behaviour into an imprisonable offence. Almost half of breaches end up with a custodial sentence, yet again begging the question whether the right people are going into our prisons. To this extent, Mrs May's aim not to "criminalise young people unnecessarily" is laudable.

But even the original objectives, dealing with gangs of feral youths who made life thoroughly miserable for other residents, were not so easy to achieve. Policemen became evidence gatherers, amassing huge files before an Asbo application came to court. There was inevitable delay and cost.

I can recall one case where there were so many respondents we couldn't fit them all into one court at the same time. The whole procedure needed trimming to make it manageable and cost-effective.

In the worst cases, it was treated as a joke to be banned from certain streets. It turned into a game of cat and mouse. The police rarely had the resources to deal with activity that, but for the Asbo, would not have been criminal.

The local community were regularly reluctant to be seen as some sort of vigilante force, especially when identification often proved

problematic. Try explaining how sure you are that you can recognise the lad with a scarf across his face.

Gradually the Asbo application became a poor substitute for being able to prove a real crime had been committed. Breaches were alleged to be legion, far above the 55 per cent that were proved in court. The successes were more at the bottom end of the scale with those who, pre-1998, would have been warned off by some simple old fashioned policing.

Finally, the Asbo deteriorated into a means to impose heavier penalties than the law otherwise allowed for minor offences. There is a man in Liverpool – not a case I ever dealt with – who was regularly fined for being drunk and disorderly. When he was made subject to an Asbo, he faced five years' imprisonment for the same offence.

The one truly positive addition to the sentencer's armoury was an amendment which became known as a Crasbo. This was an Asbo made as part of the sentence for a crime. It was easier, quicker and cheaper to obtain, relying mainly on the present offence and previous convictions.

It worked or failed to work in the same way as the civil Asbo, but seemed to carry almost the same weight as a suspended sentence might.

But, just like a suspended sentence, it is a threat which the courts must be prepared to carry through. There has to be the will and the resources to enforce the order. Persistent offenders, who commit no major single offence, but who over a period imprison their neighbours in their own homes, have to have it spelled out that they risk a

custodial sentence for the next offence, no matter how minor.

Let us not pretend that the very worst of these offenders will respond positively to anything other than a threat. Remedies completely away from the justice system have to be available for the right individuals.

But for some there is no carrot, only the stick.

Paul Firth is a retired district judge who sat in magistrates' courts in Yorkshire, Merseyside and Lancashire.