In July 2010 Theresa May heralded the end of the ASBO; claiming that they are responsible for putting ‘too many young people on the conveyor belt to prison’.

Civil liberty groups and criminal lawyers alike breathed a collective sigh of relief, glad to see the end of these over used, overly prescriptive and often unsympathetic orders.

Miss May went on to promise that the new government would turn the system on its head, and demonstrate that more community action was needed, bringing back rehabilitative and restorative justice, over criminalisation and coercion.

Just six months on however, and we are introduced to the ‘Gang Injunction’, arguably an ASBO by any other name.

What is a Gang Injunction?

Under the Policing and Crime Act 2009, police and local authorities now have the power to apply to their local county court for an injunction against local ‘gang members’. This is an order designed to ‘prevent’ and ‘protect’ an individual from ‘gang related violence’.

The definition of ‘gang related violence’ has been defined in the 2009 act as; ‘Violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that: a) consists of at least 3 people; b) uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group; and c) is associated with a particular area.’

At present the injunctions are for over 18’s, although the government intend to role the scheme out to younger teenagers later this year. The injunction can include any ‘reasonable prohibition or requirement’ to prevent an individual engaging in, encouraging or assisting in gang related violence.

The suggestion is that the injunction can be applied for even when criminal investigations are on-going, and pending a charging decision by the CPS.

Normally the individual, or respondent, will be given notice of the application. In these circumstances there must be a consultation prior to the matter being brought before the court, with local interested agencies such as the youth offending team (YOT) and probation. The decision as to who needs to be consulted remains with the applicant.

The consultation must remain confidential, and must not be disclosed to the individual.

Where a ‘with notice’ application for an injunction is made the respondent is entitled to be present and legally represented. However, there is also opportunity to apply for an injunction ‘without’ notice.

At which point any consultation period is waived due to the urgent nature of the application, for example someone’s safety would be put at risk if the respondent is informed of the hearing.

As a civil remedy the court will be able to take into account a broad spectrum of evidence; including direct evidence, previous convictions and crucially hearsay evidence. It is also anticipated that ‘sanitised’ police intelligence will also be used as evidence.

The court will need to be satisfied on the balance of probabilities that the individual has been engaging in, or encouraging or assisting gang related violence; thereafter, they will need to be satisfied that the terms of the injunction imposed are effective, proportionate and enforceable.

There is no minimum term for the length of the injunction, although the maximum term is set as 2 years, with a review hearing shortly before the expiry of the first year.

Examples cited in the 2009 act include prohibitions such as not to associate with certain people, exclusion zones, wearing certain types of clothing or keeping a dangerous or threatening dog.

Positive requirements could include attendance at anger management courses, counselling, job-preparedness coaching or mediation with rival gang members.

Upon application, the court can attach a power of arrest to an injunction prohibition or requirement (save where the individual is required to attend a certain activity, such as education, and fails to do so), meaning a police officer can arrest without warrant, an individual for a suspected breach.

The individual must be brought before the court within 24 hours, and if the matter is not resolved, can either be bailed or remanded in custody.

Breaches of the injunction are not criminal offences, although they must be proved to the criminal standard. They will be dealt with as a civil contempt of court, which is punishable by a prison sentence of up to 2 years, or an unlimited fine. The imposition of an injunction will be recorded on the police national computer.

Once an injunction has been imposed, it can be appealed to a circuit judge. Notice must be lodged within 21 days of the imposition.

So what does this mean?

There are in fact fundamental differences between the ASBO and the Gang Injunction; not least the change of venue. ASBOs were a civil remedy, albeit routinely applied for in the criminal courts.

A breach of an ASBO was a criminal offence, with a maximum sentence available of five years. One of their major flaws was that relatively low level antisocial behaviour would often result in expensive jury trials, with extremely serious consequences for the perpetrator.

The Home Office suggests that the removal of powers from criminal courts to the civil courts will encourage family members and friends to give evidence against their loved ones, appeased by the fact that they will avoid the ignominy of a criminal record . Whether this argument stands up to scrutiny is debateable.

The consequences of breaching a gang injunction are potentially arrest, remand in custody, followed by a prison sentence. What parent will be content with this, as long as it does remain on their child’s police record? In reality, how many parents involved will understand the very subtle distinction between the two?

A desire to remove people from the criminal justice system is an admirable one. However, the ‘gang injunction’ appears to simply shift the problem to the civil courts.

As disillusioned as most criminal practitioners may have come with the ASBO, they are fully conversant in the law and more importantly understand more about the circumstances of those who receive them.

The probation service and youth offending teams (both agencies who will be consulted prior to the injunction being imposed) are arms of the criminal justice system.

How will the civil courts and their practitioners manage an influx of ‘gang members’?

And what about the definition of gang violence? It is a nebulous concept, which by the government’s own admission is designed to be ‘broad and wide-ranging’ in order to ensure the injunctions can be used to tackle different gangs in different areas.

But on the face of it, the definition is not gang specific.

It simply requires three or more people, who have an item of clothing in common, and who are associated with a particular area, to use or threaten violence.

This could in principle include football fans, or indeed, later this year, school children. We have seen magistrates’ attempting to use ASBO’s to stop young people wearing low slung jeans or hoodies, how will this be any different in practice?

ASBOs became a badge of honour for some and a millstone for others. How will gang injunctions be any different? In the same way as the ASBO, they still risk alienating and marginalising some of the most vulnerable in our society.

If the conveyor belt still takes you straight to prison, whether you get there through the criminal or the civil courts doesn’t really matter.

Julia Furley is a barrister at JFH Law LLP