If an ASBO is granted under the 1998 Act and has subsequently been breached (since the 2004 Act came into force) which Act should the breach be charged under?
A. A breach of an ASBO granted under the 1998 Act would not be proceeded against under the 1998 Act. The relevant part of the 1998 Act, s.22, has now been repealed (see Schedule 5 of Antisocial Behaviour (Scotland) Act 2004) so it is not competent to prosecute someone under the 1998 Act for a breach of an ASBO committed post repeal even if the original order was granted under the earlier legislation. It is competent, however, to proceed against someone for breach of an ASBO under s.9 of the 2004 Act in these circumstances.
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