The ability to ‘name and shame’ those made subject to anti social behaviour orders was a clear intention by legislators in the Crime and Disorder Act 1998 and subsequently confirmed in court cases . Because ASBO’s are a civil measure, local authorities can publicise and distribute details and photographs of perpetrators. The purpose of publicity is outlined in guidance from the Anti Social Behaviour Unit and covers four broad areas:
? Public reassurance about safety – to allow victims and witnesses to know that action had been taken
? Public confidence in local services – to let local people know that action will be taken if they report anti social behaviour
? Deterrent to the person subject to the order – so that the perpetrator knows that local people will be aware of the conditions and that breaches are likely to be reported
? Deterrent to other perpetrators – a warning to other would be perpetrators.

The guidance makes it clear that there is no differentiation between children and adults, and while it does indicate that consideration should be given to any vulnerability it also says ‘Age alone is insufficient to justify reporting restrictions’ and ‘The approach to publicity (for children) should be the same as for adults’
It should be noted that this guidance is for local authorities and has no jurisdiction over media reporting or saturation leafleting of details of people made subject to ASBO’s, including children.

Allowing this reporting which not only names children but may also include photographs, addresses and other details such as the school they attend, completely reversed established practice and is in breach of Article 40 (2) (vii) of the UN Convention of the Rights of the Child which requires signatories to guaranteed privacy to children in conflict with the law ‘at all stages of the proceedings’.

The UK has separate systems for dealing with children in trouble with the law and, while many would argue for a more distinct and child focussed system, nevertheless the separation does acknowledge that children have a different level of understanding of proceedings, the impact on them is different to that of adults and any court making a decision involving a child must have regard to the impact of that decision on the child’s welfare . Children’s right to privacy throughout any criminal proceedings is part of that separation and is well established. As long ago as 1933, well preceding the UN Convention on the Rights of the Child, legislation applicable to England and Wales under Sec 49 of the Children and Young Persons Act 1993 established reporting restrictions in relation to children appearing in court, including for criminal matters, with the presumption of privacy unless the sentencer specifically allowed publicity.
There is no such distinction and separation in relation to anti social behaviour orders which are made in the civil court and this causes concern not only for those of us involved in children’s welfare but also some members of the magistracy. John Fassenfelt, vice chair of the Youth Courts Committee of the Magistrates Association says:’ the primary focus of youth courts is to prevent reoffending, whereas adult courts are punishment led. But ASBO’s fail to make this distinction ’

Clause 127 of the current Serious and Organised Crime Bill now proposes a extension of the presumption for publicity to the youth court in its criminal jurisdiction, dis-applying the reporting restrictions for breaches of Anti Social Behaviour Orders and other Orders made under sections 1B and 1C of the Crime and Disorder Act 1998 which are heard in the Youth Court.

So why is there such concern about the ‘naming and shaming’ of children who receive ASBO’s and the proposed extension of this to the criminal youth court?

Regardless of any human rights implications, there is concern for the impact that this measure has on individual children. I would question the effectiveness of such methods in changing behaviour for the better and in some cases such actions will actually have the opposite effect. Where children get status because of their ‘bad’ behaviour, raising the profile of this behaviour merely reinforces that this is how they get attention and leads to more of the same behaviour. The Standing Committee on Youth Justice says: ‘In some cases public identification and publicity can glorify bad behaviour, and act as a ‘badge of honour’. The local notoriety which it brings often feeds into a young person’s sense of satisfaction about causing trouble’. Conversely, those children for who being made subject of an ASBO has had a ‘shaming’ effect and who wish to make a fresh start, the impact of negative publicity will hinder this process and not assist them in re engaging with their communities.

There is a further concern for the safety of children who, however troublesome they may be, are often vulnerable and lack proper support. Evidence from Barnardo’s work and research with children vulnerable to sexual exploitation suggests that adults seeking such children will target and groom those who are perceived to be vulnerable and unsupervised.
The details about children and the way in which their behaviour is reported is also of concern. While the guidance issued by the Anti Social Behaviour Unit may be clear about the purpose of publicity and what may be done by the local authority, there is no such guidance or control of the media. The pejorative tenor of much of the reporting of children made subject to ASBO’s – the consistent use of terms such as ‘scum’ and ‘yob’ or things such as the ‘shop a yob’ campaign in one newspaper – goes far beyond a ‘public interest’ principle of informing local communities and can only serve to raise the levels of fear and antagonism, and in extreme cases ‘fuel’ vigilantism towards children and young people in general.

The proposal to reverse the presumption of privacy in the criminal youth court when the matter is breach of an ASBO would carry the same impacts as for ‘naming and shaming’ following the making of the original order. It could also hinder the rehabilitation process and thus preclude prevention of further offending, the statutory duty of all those involved with children in trouble and which should underpin all sentences of the youth court.

Lord Justice Wolf said, in relation to the application of a publicity campaign not to a vulnerable child but to an adult who was a serving prisoner: ‘it is also necessary to take into account the dangers … of the scheme interfering with the rehabilitation of offenders. This is in the public interest since it reduces crime’.

It is difficult to see how the purposes of publicity as outlined in the Guidance would be served by allowing further publicity at breach sentencing. It would also seem to be inequitable in that children appearing in the youth court via the ‘conventional offence’ route would still be ensured privacy, but those appearing for breaching conditions which have included playing football in the street and being at a particular bus stop, would not. Finally there is a deep concern that this proposal could be used as an argument for the extension of publicity to all the youth court proceedings in general.

All of us have the right to live in a safe and decent community and I am aware of the unhappiness, fear and economic cost that anti social behaviour bring to communities, particularly to the most vulnerable residents – including children and young people. However, the continuing focus on children and young people as the main cause of anti social behaviour needs further research to see if the high use of ASBO’s for them – they account for 48% of all orders made - is based on a high level of anti social behaviour by children. Without evidence that the use of ASBO’s for children is justified and effective in changing their behaviour, the continuing use and proposal for extending the ‘naming and shaming’ would seem to be a breach of their human rights, a breach of the UN Convention on the Rights of the Child (to which the UK is a signatory) and counter productive in terms of either reducing anti social behaviour or the rehabilitation of individual children.