Derek McDowell (Labour)

An ASBO does not criminalise misbehaviour any more than the civil injunction and contempt punishment criminalises ordinary behaviour. It is a simple thing. In certain circumstances, a person's behaviour may cross a threshold which requires him or her to be brought to court. An order is made on the balance of probabilities, using the civil standard of proof, against that person and if he or she breaches that order, it is explained, as is provided in this Act, that he or she will commit a criminal offence. If the person commits the criminal offence, under this Act it must be proven beyond reasonable doubt. If a court, on the second stage, has a reasonable doubt, it must acquit the person concerned. That is what we are dealing with here.

Is this a novel proposition when looked at from another point of view? It is not. From time immemorial, as the late Mr. Justice Rory O'Hanlon has said, justices under the common law ——