NEW! FIRST CASE OF A CORPORATION GETTING ASBO'D

In June, the first Anti Social Behaviour Order (ASBO) case was brought against representatives of a corporation. The court hearing followed a Camden Borough Council investigation which identified two Sony executives responsible for commissioning illegal fly-posting in the borough. The local authority is said to be investigating another 60 cases of corporate anti-social behaviour and other councils such as Manchester may follow their example.

ASBOs are designed to short-circuit the criminal justice process. They criminalise behaviour that previously might only have been dealt with by civil or administrative remedy. In so far as this enables the criminalisation of persistent or nuisance acts that are difficult to deal with under criminal law, anti-social behaviour legislation captures a theme that has dominated social movements against illegal pollution, toxic dumping and health and safety crimes for many years.1 Of course ASBOs have yet to be used for dealing with this type of corporate offending. So far it is overwhelmingly young people and those that live in the poorest neighbourhoods that have been targeted. There is clear evidence now that ASBOs are causing a rise in custodial sentences for young people (see Young People Now magazine, 21-27 March 2004: 2).

The idea of the corporate ASBO...provides a more concrete example for how local communities might play a role in re-setting the parameters of the crime control agenda.

The Crime and Disorder Act (1998), in which ASBOs first appeared, proclaimed that crime control partnerships were to define the local crime and community safety problems as broadly as they wished. The Home Office guidance noted: “nothing is ruled in and nothing is ruled out” in local crime and disorder audits and strategies. The real experience is that those audits and strategies remain dominated by highly conservative definitions of the crime problem and not one has yet included corporate offending (Whyte, 2004). The idea of the corporate ASBO however, provides a more concrete example for how local communities might play a role in re-setting the parameters of the crime control agenda.

Respondents in the US National White-Collar Crime Survey consistently reported that they believed white-collar and corporate crimes to be more serious than street crimes.

The Camden case presents a good example of what happens when more imaginative questions are asked about the crime problem. The Sony ASBO was pre-empted by a MORI surveys in which local people reported that unsightly illegal flyposting was a local problem after being shown a card with this option on it. In fact only 7% of respondents reported that flyposting “made them feel unsafe or uncomfortable” compared with 43% reporting “broken paving slabs or potholes” and 39% reporting “litter.” A point that is commonly made by corporate crime writers is that when people are actually asked the question they tend to report surprising levels of corporate victimisation such as over-pricing and consumer fraud than other forms of ‘street’ crime victimisation (Pearce, 2000). Respondents in the US National White-Collar Crime Survey consistently reported that they believed white-collar and corporate crimes to be more serious than street crimes. For example, they were much more likely to agree than disagree with the statement that “allowing tainted meat to be sold which results in one person becoming ill is a more serious offence than armed robbery” (Rebovich and Lane, 1999). Now, those findings are derived from a US survey and they may or may not be reflected in UK public sentiment. The important point to grasp, however, is that there are a great deal of questions that local crime surveys and Crime and Disorder Audits don’t even ask. Perhaps if we started to widen the parameters of our inquiry, as Borough officials did in Camden, we would be rather surprised by the answers.

At the moment, an ASBO can only apply to individual representatives of corporations, since anti-social behaviour legislation is designed to deal with individuals. It would not, however, take much more than a minor amendment to the legislation to enable ASBOs to apply to corporate persons. Moreover, the Camden case does present us with a good opportunity to develop about the possibilities for applying ASBOs usefully to corporate offending.

Procedures established by local authorities for the investigation of anti-social behaviour might provide a rationale for subjecting businesses under investigation to the same intensity of surveillance as graffiti artists and mobile phone thieves.

First, ASBOs deal with cumulative ‘non-criminal’ behaviour in cases where there may not be sufficient evidence for a prosecution. Assembling evidence of most types of corporate crime after the event is notoriously difficult. This is partly because corporations are uniquely positioned to keep their decision making structures hidden from view, to mask lines of accountability and to lose investigators in complex evidential paper chases. But it is also because outside of a few exceptional cases, they are rarely place under surveillance by investigating authorities. Procedures established by local authorities for the investigation of anti-social behaviour might provide a rationale for subjecting businesses under investigation to the same intensity of surveillance as graffiti artists and mobile phone thieves. The Camden example illustrates just this point. In this case, the local authority surveillance operation successfully traced posters back to Sony. Camden also employed the services of a private detective to establish precisely who in the organisation had hired the fly-posters.

Second, ASBOs short-circuit the requirement in criminal law that defendant must be shown to have a particular state of mind (mens rea). In the criminal law, a very complex notion of corporate mens rea has been applied in common law that has proven exceptionally difficult to deal with in the courts. According to Hazel Croall and Jenifer Ross: “the ASBO is very well suited to being used against the anti-social business, probably more than against the individual since the behaviour covered by the ASBO is more concerned with the harm caused than the intention of individuals.”

By linking collective abuses of power to large scale social harms, such movements promote social justice as well as criminal justice.

Third, the experience of the use of ASBOs in many communities has been a socially disconnective one. Where social solidarity has been generated in communities it has arisen from collective activism against other individuals in the community. The procedure for securing ASBOs, because it tends to rely upon heresay and evidence gathered from neighbours, encourages conflict within communities and encourages the ‘respectable’ community to demonise and discard those it deems less respectable for whatever reason. Community action against corporations tend to have the opposite effect. Social movements against corporate crime are much more likely to be socially re-connective. Organisations such as the Womens Environmental Network or Communities Against Toxics work at developing community participation in campaigns aimed at securing general social benefits for all. By linking collective abuses of power to large scale social harms, such movements promote social justice as well as criminal justice.

ASBOs have potential as an effective means of challenging criminal corporate behaviour.

Fourth, the Camden case shows that ASBOs have potential as an effective means of challenging criminal corporate behaviour. It is perhaps a measure of the universal support for Camden’s actions by the public and the media - encouraged by the Borough’s aggressive public shaming strategy - that the company did not try and deny, deflect or neutralise the evidence presented against them, but immediately and publicly accepted responsibility for their behaviour. To see a company offering no defence in a court room is rare in any case of corporate crime.

It is more likely that the ‘catch-all’ powers inscribed in anti-social behaviour legislation will be used to protect business interests rather than for dealing with corporate offending.

If those reasons make the case for applying ASBOs to corporate offending theoretically feasible, there is also reason not to get carried away with the idea of corporate ASBOs. The Camden case is to-date an isolated case, and it is more likely that the ‘catch-all’ powers inscribed in anti-social behaviour legislation will be used to protect business interests rather than for dealing with corporate offending. One recent trend is the use of ASBOs against protestors. In July, for example, the Anti-Social Behaviour Act (2003) was used by police to prosecute 8 people involved in a protest at the financial head office of Caterpillar in Solihull protesting at the Israeli regime’s use of the company’s bulldozers to flatten villages and commit crimes against humanity in the West Bank. ASBOs have also been used to impose curfews in order to protect business zones. In Manchester anti-social behaviour orders have been secured by businesses to keep groups of young people out of Trafford Park industrial estate.

But what the Camden case does tell us is that even under this militantly pro-business government, there are still possibilities for tackling corporate offending.

There are other reasons for thinking that the Camden example does not represent a revolutionary break in the trajectory of criminal justice practice. The prioritisation of flyposting in the borough is linked to an initiative called the Boulevard Project. The vast majority of the Boulevard Project’s targets are the young and relatively powerless such as skateboarders, graffiti artists and beggars. And the Boulevard Project is based explicitly upon a ‘broken windows’ approach (Wilson and Kelling, 1982). According to Ian Beaumont of the Project, “when we deal with litter, then vandalism decreases and when we deal with flyposting, other petty crimes begin to disappear” (personal communication, 23rd July 2004). Broken windows tackles ‘crime’ not by changing material social conditions, but by changing the micro-environment and the locations in which crimes are identified. Targeted intervention in factories, offices and boardrooms remains outside the conceptual boundaries of broken windows. To shift the debate into dealing with much more serious safety or environmental offences would therefore require a much broader shift not only in policy, but also in the ideological foundations that underpin local crime prevention strategies. But what the Camden case does tell us is that even under this militantly pro-business government, there are still possibilities for tackling corporate offending. In a criminal justice system that targets the youngest and most vulnerable offenders and remains uninterested in crimes of the powerful, we now know that it is at least feasible to put company executives in front of Blunkett’s new anti-social behaviour courts.

Dave Whyte, Lecturer in Criminology, University of Stirling.

References

Pearce, F. (1990) Second Islington Crime Survey: commercial and conventional crime in Islington, Middlesex: Middlesex Polytechnic.

Rebovich, D and Lane, J (2000) National Survey on White Collar Crime, Morgantown, West Virginia: National White Collar Crime Centre.

Whyte, D (2004) All That Glitters isn’t Gold: environmental crimes and the production of local criminological knowledge, Crime Prevention and Community Safety, vol. 6. pp 53-63.

Wilson, J and Kelling, G (1982) Broken Windows, Atlantic Monthly, vol. 249. pp 29-38.