ASBOs and the Targeting of ‘Undesirable’ Persons

Abstract

Historically, the courts in Scotland, and in England and Wales, have long expounded the general principle that both legal procedures and the decision-making of officials must be fair — and that a duty exists to act fairly and to afford all participants the right to be heard. Galligan has observed that: ‘Exceptions to the principle might still be made, but only where there are strong reasons for doing so; indeed the presumption is that the general duty to follow fair procedures will apply unless exceptions can be justified. The practical application of the principle can still be uneven, with various factors influencing a court’s appraisal of what procedures are needed’ (1996a: 329). It will now be considered to what extent (if at all) procedural fairness in ASBO cases has featured secondary in the pursuit of policy objectives, and moreover, whether administrative and procedural decision-making in ASBO cases requires to be revised and improved. Subsequently, this chapter examines three specific areas of ASBO legal procedure which are identified as particularly problematic in the context of fairness and due process for ASBO defendants: the defence of ASBO action, interim orders granted ex parte, and the ‘balancing’ of interests.