Bang out of order

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When a dodgy builder was jailed for fleecing customers, he got an ASBO into the bargain. What the dastardly felon also got was a dose of rough justice

鈥淛ak the Builder鈥�, now that's a good snappy name for a builder. The outfit is into home extensions. David Flaherty is the man behind the name. Or rather, he was. Now he鈥檚 doing three-and-a-half years鈥� porridge.

Flaherty advertised his services and gave a nice, attractive deal. Of course, it meant a lump of cash in hand just to get the materials and job under way. The work was started and then 鈥� yes, you know what's coming 鈥� Flaherty scarpered. Most of us wouldn't touch Jak the Builder with that well-known bargepole, especially once he talked about cash in hand.

He is the sort of nuisance that makes people like the Federation of Master Builders shout hurrah when the legal system gets them. The FMB gave an even bigger cheer, and so did the trading standards folk, when Judge Dafydd Hughes not only handed out a long stretch but added a bonus 鈥� he gave Flaherty an antisocial behaviour order.

Frightening. Wrong.

ASBOs have merit. The idea is to find a way of dealing with neighbours from hell, with bullying, drunken behaviour, assault, vandalism and so on. You or your local Neighbourhood Watch can join with the council and a local bobby to ask a magistrate to issue an injunction. It will name the individuals and direct them to clear off. Break this civil order and you face prison. The courts are dishing out ASBOs galore.

But how did this scoundrel Flaherty, our Jak the lad, come to receive an ASBO along with his jail term? The judge said Flaherty had 鈥渟hamefully betrayed the trust of his fellow tradesmen and customers鈥�. He also said that although the prison sentence would act as a deterrent to Flaherty, imposing the ASBO (as requested by trading standards) was the only way to stop him reoffending.

So for five years after he comes out, he is banned from operating on his own account or in partnership or as a director of a limited company, or in a building business of any sort or as a self-employed builder, unless he is an employee or subcontractor to a bona fide builder. He is not allowed to price or quote for any building work. He is not to contract directly with consumers for or in connection with any building work. He is not to advertise or otherwise seek building work. He is not to receive any payments directly.

Bang out of order

Let me tell you what is worrying me. Flaherty pleaded guilty to theft involving 拢13,000 and three deception charges. One victim was a restaurant owner conned out of 拢6000. Hurrah for the three-and-a-half years. Then the judge was taken to the Police Reform Act 2002, which gave a sentencing judge the power to consider whether the admitted criminal offence or conviction was that which 鈥渃aused or likely caused, harassment, alarm or distress to one or more persons, and if so whether an order is necessary to protect persons from further antisocial acts鈥�.

The judge was satisfied that all this could be answered by yes, yes, yes and more. I doubt, however, that he was taken to the Home Office guide of last year headed Taking a Strategic Approach. It explains the scope of behaviour likely to cause harassment, alarm or distress.

It is all about being a bloody nuisance, loutish and thick-headed behaviour. ASBOs are all about dealing with those who bring misery to the local community as a whole. ASBOs are for public conduct that offends the general public. None of this is the same in character as offences of dishonesty committed in private against individual victims.

As distressing as it was to that restaurateur, being taken for a ride to the tune of 6k is not what ASBOs were invented to address.

Think about this: if Flaherty comes out of nick and does a super job on a restaurant extension (yes, it will be a surprise but bear with me) he will go to prison for doing a first-class job. That鈥檚 because he will have breached the ASBO, which is a civil order of the court making a non-criminal action (placing an advertisement in the newspaper, giving a quotation) punishable with prison. This is going too far in reading what ASBOs are really for.