A man who pleaded guilty to being drunk and disorderly has been sentenced to imprisonment for nine months. He had been found drunk, lying on the ground in a disused commercial car park. It bears repetition: nine months for being drunk.

The well-informed reader will know that the maximum sentence for such behaviour in England and Wales is simply a fine. But the keenest of readers will immediately see the answer: the antisocial behaviour order (ASBO). For while a drunken evening can result in an on-the-spot fine, there is a minority whose drunkenness is too grave, too pernicious, for such an approach. Nor is it sufficient to arrest and prosecute such people according to the law of the land. Instead, a private penal code – the ASBO – prohibits them from doing anything that may cause harassment, alarm or distress to the general public. But there are those – our man is one – who do not comply with their ASBOs. They return to court. They are sentenced. Often the process is repeated with unfortunate regularity.

Few would doubt that some ASBOs, properly applied, may bring benefits to communities. But what should be done with people who seem incapable or unwilling to comply with their order? In February last year the Court of Appeal decided in the case of Cyril Stevens (above), who is in his mid-fifties, that the ASBO breach entitles a court to impose a sentence greater than that given to someone else for exactly the same behaviour. But how much greater? The sentencing court obviously should look at the harm caused to any victim and the community; but is being drunk in the street (without accosting anyone) or swearing at a police officer to push off, even in breach of an order not to, so serious that custody is the only answer?

Even after pleading guilty, Stevens received eight months for swearing and nine months for being drunk. If such behaviour is really so serious then why has Parliament set the usual sentence for that conduct at no more than a modest fine? In years gone by a day sobering up in the cells was sufficient for the town drunk. Local councils also have a clear duty to provide social welfare assistance to find housing and some care for vulnerable chronic alcoholics.

Expert View

You can't ban someone from being a druggie

Frances Gibb, The Times Legal Editor

The key questions in sentencing for breach of an ASBO ought to be: what is the actual harm caused by the breach – that is, how serious is the conduct that it constitutes? Secondly, what is the potential harm to be guarded against? Breach of a court order (whether bail breach, driving ban, etc) by itself does not mean that custody is inevitable or that its length should be so great.

What about the incurable alcoholic? A nuisance is no more or less than that, and a sentence of up to five years must not be used to engineer an impossible ideal of social Utopia and harmony. On this approach, Stevens’s sentence was disproportionate to the harm caused. That the community, represented by the magistracy in his home town, later agreed to remove the prohibition preventing Stevens from being drunk in public from his ASBO conditions eloquently expresses their view of how serious the harm is and how effective that prohibition can be.

Stephen Bennett, of Blaser Mills solicitors, Stevens’s solicitor, says: “The magistrates demonstrated considerable courage and sympathy for his plight in this application [to remove the prohibition]. It was suggested to them that his behaviour is directly associated with his alcohol addiction, over which he has little or no control and that it was inevitable that if the ASBO remained unchanged, he would spend the rest of his life in prison. Knowing him as a nonviolent individual, the court was persuaded to introduce sane proportionality to the order.”

Furthermore, the cost jailing someone for months when prisons are so overcrowded, and with so little benefit to the community, must be of concern. With children there are further problems: last January Professor Rod Morgan stepped down as head of the Youth Justice Board because he believed ASBOs were drawing more children into the criminal justice system while failing to deal with the social and cultural problems leading to bad behaviour.

Any rethink of sentences for minor criminal conduct that breaches an ASBO must be consistent with the Lord Chief Justice’s wish to favour alternatives to custody, his exhortations to reserve custody for the most serious cases and to keep sentences as short as possible. So what about sentences imposed on incurable alcoholics with ASBOs? These people are by their nature likely to reoffend, and without much gap in time. They are also likely, unlike some criminals, to be readily apprehended. They can serve almost their entire sentence – and this can lead to something akin to a “life” sentence for some.

Courts accept that prohibitions placed in ASBOs must be effective. But so must the sentence for a breach. It may be that whatever the sentence, the ASBO will not work and change behaviour. But heavier penalties for repeated breaches can be unjustified and no answer. Let us hope that the current consultation proposals of the Sentencing Advisory Panel will lead to a reappraisal – and reverse the current trend for long jail terms for minor offending.

— The author is a practising barrister at Castle Chambers

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