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Robert James

Very interesting piece Matthew.

I have looked up a bit more on ASBOs and SOPOs. The CPS guidance on SOPOs for transmission cases specifically suggests the two things that have been used, orders for protected sex and/or disclosure.

The criminal procedure rules do have a small piece on behaviour orders (part 50) and SOPOs are excused a couple of administrative requirements but otherwise are the same as ASBOs and SCPOs (Serious Crime Prevention Orders). All behaviour orders though are for the situation where a court "requires someone to do, or not do, something" suggesting it is not simply to refrain from actions but to compel actions as well.

The main case law covering ASBOs seems to be Boness v R [2005] EWCA Crim 2395 (19 August 2005) which is at http://www.bailii.org/ew/cases/EWCA/Crim/2005/2395.html

Most relevant I think are paragraphs 46 and 47 about the need for the order to protect the community from harm rather than simply protecting "individuals victims" and enforcability but this looks like obiter and not ratio to me.

46 ...The forms of conduct listed on page 8 of the 2002 Home Office guide have a direct or indirect impact on the quality of life of people living in the community. They are different in character from offences of dishonesty committed in private against individual victims, distressing though such offences are to the victims...

47 ...In the absence of a system to warn all hotels, guesthouses or similar premises anywhere within the Greater London Area, there is no practical way of policing the order. The breach of the ASBO will occur at the same time as the commission of any further offence in a hotel, guesthouse or similar premises. The ASBO achieves nothing- if she is not to be deterred by the prospect of imprisonment for committing the offence, she is unlikely to be deterred by the prospect of being sentenced for breach of the ASBO...

There is CPS guidance on ASBOs - and SCPOs but not SOPOs - which may also be helpful in opposing or pushing for clarification of these types of orders http://www.cps.gov.uk/legal/a_to_c/anti_social_behaviour_guidance/#Form

'The Form and Content of the Order'

The terms of the order must be reasonable and proportionate, realistic and practical and must be worded in such a way to make it easy to determine and prosecute a breach. [R v Boness [2005] EWCA Crim 2395] Experience has shown that the use of simple language can assist. For example consider not to be with .. rather than not to associate with..
The terms of the order must be enforceable in that a breach can be readily identified and capable of being proved.

I think the disclosure SOPO could be arguable on enforceability grounds and noting the example in Boness the inability to warn specific individuals when a more general "must not enter any hotel" order was ruled disproportionate.

I wonder if this offence and SOPO are examples of a general rule about consent / autonomy and rational behaviour where there is an anomaly about harming people. Consent is the vital principle for the court and consent to risk perfectly normal (and inevitable in life) but consent is only to the risk of harm and not consent to definite harm. Consent to definite harm being seen as a thing no rational person would do and so even when it happens as in R v Brown it is structured in a way to suggest the person consenting to harm is in need of protection and would not be consenting if they were being self-confident enough. So consent to 'deliberate transmission' is no defence as it has the implication of certain to cause harm.

The oddness now is therefore the necessity of knowledge prior to sex on behalf of the complainant compared to crossing the street, accepting a lift from a person without knowing their driving history, etc and I think this could be part of a wider shift in ideas of protection - all those "this product may contain nuts" labels. They are avoidance of litigation for companies as well but also have a premise that if you are allergic to nuts you will use this info to act sensibly and not eat the product.

HIV is then leading the way as the case law is new and other areas of law around harm may follow. An ASBOs requiring disclosure of previous offences may therefore become more common and seen as sensible by a court. One example could be a person convicted of assault on hospital staff having an ASBO of disclosure that "You must tell hospital staff that you have previously assaulted a nurse" with the understanding that a hospital would then make the rational decision of having security in the room when the person is treated. The idea of knowledge being the method to enforce/promote behaviour that reduces harm in society because we are all rational actors who would never make a bad choice.

Matthew Weait

Robert - excellent post, with lots of very interesting and provocative ideas.

I think you are absolutely on the money about what these orders reflect, and that this is something deeper and more systemic about law and its use in constructing / constraining / managing social interaction.

They seem to me also to be in tune with wider socio-legal developments in "risk society", not so different at one level from the move towards whole body X-rays in airports or the construction of PLHIV as being infected with biological weaponry (as the Michigan case suggested).

I guess that taken together there is a way of reading these developments as emblematic / symptomatic of the hyper-individualism that marks neo-Liberal society (or, paradoxically, the "Big Society" that demands that we take responsibility for others, rather than being supported through law and other social institutions to develop bonds of properly mutual care and support).

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