Why Is it Wrong to Breach an ASBO?

Abstract

This article reviews the case law on the offence of breach of an ASBO and offers a theory of the public wrong identified by the courts as the reason for punishing people who commit the offence. It argues that the wrong that unifies all breaches of an ASBO is the insecurity caused by defendants’ failure to address their disposition to cause insecurity in others. The greater is the insecurity that they are thought to have caused as a consequence of their failure, the more serious is the wrong and the more severe is the sentence to which they are liable. It is argued that this public protection theory gives a better account of the positive law than two competing accounts, namely the theory that the offence is simple defiance of the court’s authority and the theory that breach of an ASBO is a ‘composite offence’ intended to aggregate many minor wrongs for the purposes of sentencing. Some of the problems and questions raised by the public protection rationale for punishment are briefly considered.