Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Monday 18th November 2013 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, first, I welcome the fact that we are having this debate, because the injunctions were clearly the major issue raised at Second Reading. I think that most noble Lords who contributed to that debate raised this issue.

However, I start by saying that the late scheduling of today’s Committee sitting is rather unfortunate. There will be noble Lords who would have wished to table amendments to today’s debate but who, given that the sitting was scheduled only on the last sitting day before Recess last week, may not have had the opportunity to do so. The noble Lord, Lord Ramsbotham, made the point that we now have a clash with the Children and Families Bill, which is also in Committee as we speak. I suspect that, given the nature of the subject before us today, many noble Lords who are in that Committee would also wish to contribute here. My final plea is that this time yesterday I was in Argentina, and I arrived in the UK only a few hours ago. I promise not to do my Eva Peron impression on this issue—although perhaps in passion if not in length. The scheduling is unfortunate, and I hope that the Minister will take that message back. I would not want noble Lords who have a contribution to make to this debate to be unable to do so.

The noble Lord, Lord Greaves, has done us a service with his amendment, and I am also eager to probe the Government’s thinking on this issue as well. I am certainly not against children and young people being held responsible for their actions; we defined that principle in anti-social behaviour orders. We have had some debate today about the criminal age of responsibility for young people, but the amendment and the Bill are not really about that. They are about whether a young person aged 10 is likely, on the balance of probabilities, to cause annoyance or nuisance to anyone. I am not a parent, but my experience of 10 and 11 year-old children is that they inevitably cause nuisance and annoyance to somebody at some point. I do not know whether the Bill is an appropriate vehicle to make that kind of behaviour subject, on the balance of probabilities, to such an injunction. I find that somewhat strange and I would like the Minister to develop his thinking and explain why the Government think that it is appropriate.

I can think of numerous examples where 10 and 11 year-olds would cause nuisance and annoyance: persistently kicking a ball at a fence, breaking that fence or causing disruption in the neighbourhood. That is the very point that my noble friend Lord Harris made: the Government are trying to squeeze a range of interventions into one which, inevitably, will not be appropriate in every case.

I wonder, if a complaint is made about a young person aged 10 or 11 causing nuisance or annoyance, how the police are going to investigate to see whether it is appropriate that such an injunction be placed on that young person. The JCHR made the point that there is no requirement whatsoever in the Bill to judge what is in the best interests of the child before such an injunction is imposed. It would be helpful if the Government would explain their thinking why it would be appropriate to issue an injunction when a 10 or 11 year-old may cause nuisance or annoyance.

[Lord Faulks (Con)]

Perhaps the noble Baroness can help the House. Section 1 of the Crime and Disorder Act 1998, passed by the previous Government, permitted local authorities to apply for ASBOs in respect of persons aged 10 or over, subject to conditions. Does the party opposite have a changed view now, in view of the amendment?

[Baroness Smith of Basildon]

We want the Government to justify their position. As I said at the beginning, I think it appropriate for young people to be held responsible for their actions, but I want to probe why the Government think that this kind of injunction is appropriate. The anti-social behaviour order, as we shall debate later, required a much higher level of proof of nuisance. In the injunctions contained in amendments made in 2003 to the Housing Act, there is a lower level, as we have heard from the housing associations which have contacted us. In this specific instance, I think that the Government need to justify why they consider this injunction appropriate as the only means of dealing with such behaviour.

--- Later in debate ---

[Lord Lloyd of Berwick (CB)]

My Lords, I had not intended to speak on this part of the Bill, so I am afraid that I have not done as much homework as I should. For many years, however, I have protested against using the civil law to do the work of the criminal law, because it leads to problems when you adopt that approach. For that reason I have always been uneasy about ASBOs. For example, it was years before it was decided—if it has now been decided—whether the standard of proof on ASBOs is the criminal standard or the civil standard but as near the criminal standard as makes no difference. So I shall not be sad to see the back of ASBOs.

Part 1 of the Bill deals with injunctions. Injunctions are a civil procedure. Therefore, on the face of it, one would expect to see the civil standard apply. When the question comes to whether the respondent is in breach of the injunction, the criminal standard applies under paragraph 1 of Schedule 2. That seems a sensible approach. With regret, therefore, I cannot support the noble Baroness’s Amendment 19C, but I am happy to support her other amendments.

[Lord Faulks]

My Lords, we are considering the powers to grant injunctions under Clause 1, but it is important to consider the other provisions in Part 1, particularly Clause 4, which specifies those who can apply for injunctions, including local authorities, housing providers, the local chief of police and various other agencies but excluding individuals.

The anxiety that has been generated by Clause 1 is understandable. This anxiety has been excellently analysed by the noble Baroness, Lady Mallalieu, but it needs to be closely examined to see whether it is justified. The Minister told the House at Second Reading that draft guidance had already been published for front-line professionals and referred to particular parts of that guidance. At page 24, it is specified that,

“in deciding what constitutes ‘nuisance or annoyance’, applicants must be mindful that this route should not be used to stop reasonable, trivial or benign behaviours that have not caused, and are not likely to cause, harm to victims or communities. For example, children simply playing in a park or outside, or young people lawfully gathering or socialising in a particular place may be ‘annoying’ to some, but are not in themselves anti-social. Agencies must make proportionate and reasonable judgements before applying for an injunction. Failure to do so will increase the likelihood that an application will not be successful”.

The jurisdiction to grant an injunction is given to the High Court or the county court, or the youth court in the case of a respondent aged under 18. The court has to be satisfied first that the respondent is engaged in anti-social behaviour and secondly that it is just and convenient to grant an injunction for the purpose of preventing him or her from engaging in anti-social behaviour in the future.

We should not underestimate the inherent safeguards that are present in that procedure. The expression “nuisance or annoyance” is well established in the context of landlord and tenant law and it has been statutorily incorporated into various housing Acts. The expression was introduced with little controversy by the Anti-Social Behaviour Act 2003. There is now a wealth of case law applying this test, which is applied by judges up and down the country. The words by themselves might be thought of as attracting remedies where actions complained of are relatively trivial, but in fact, for “nuisance and annoyance” to pass the threshold, it has to be to be something pretty substantial.

By the same token, judges are not easily persuaded that it is “just and convenient” to grant an injunction unless the court is satisfied that it is equitable to do so. The expression “just and convenient” is well established in law and will mean that the courts hesitate before granting injunctions, unless the behaviour complained of is such that the court considers it fair to do so. If a court were to be too draconian—as to which there has been little evidence in the past—then successful appeals would follow.

The provisions of Part 1 allow for a range of requirements to be included in injunctions, including if necessary a power of arrest. The terms of an injunction will of course depend on the particular facts of a case. Similarly, a power of arrest will be attached only if the seriousness of the allegations merits the exercise of such a power. A point made cogently by the Law Society in its briefing on this part of the Bill is that injunctions are used in the case of noise nuisance as an alternative to possession proceedings. They result in the person or their family staying in their homes, but with restrictions as to their conduct rather than their having to be evicted.

With respect, there seems to be a number of difficulties about the proposed amendments as explained by the noble Baroness, Lady Mallalieu. They would essentially create a criminal regime—there is a criminal offence later in the Bill—for low-level anti-social behaviour, in that before an injunction could be granted there would have to be proof beyond reasonable doubt. This would mean that hearsay evidence could not realistically be used. Witnesses are often afraid of the perpetrators of anti-social behaviour and give their complaints to a housing officer who can then present evidence. One should not underestimate the misery that can be experienced by residents of, let us say, a block of flats where one of the occupants is determined to make the rest of the occupants’ lives a misery. The amendment would probably necessitate seriously frightened residents having to give evidence and be cross-examined. It is much more likely that they would simply refuse to do so.

In our anxiety to ensure that civil liberties are preserved we should neither lose sight of the victims of anti-social behaviour nor underestimate quite what a scourge it can be. I understand entirely what lies behind this amendment and the concern expressed by a number of noble Lords that essential freedoms could be at risk if the powers under Part 1 were used too enthusiastically. However, I feel that the really substantial amendments here will emasculate the right to obtain an injunction under Part 1 and result in a failure to protect those who are the victims of anti-social behaviour. Nevertheless, by way of acknowledging the very real and sincere concerns that a number of people or groups have about Clause 1, I propose in my amendment, which I will outline shortly and is supported by the Joint Committee on Human Rights, that a degree of objectivity be imported into the definition of conduct capable of causing nuisance and annoyance. That amendment, which I will be submitting, would help, but I am afraid that I am against these amendments.

[Lord Harris of Haringey]

My Lords, I find myself in the difficult position of agreeing with much of the excellent speech by my noble friend Lady Mallalieu and much of the speech just made by the noble Lord, Lord Faulks. The reason for that is the mess that this Bill is. The reality is that the original concept of anti-social behaviour orders was introduced because of a real, prevalent problem in many parts of this country. The problem outlined by the noble Lord, Lord Faulks, is that of people whose lives were being made a misery by the actions of others, but because they were often frightened, or did not think that it was appropriate or possible, they would never bring those matters in a formal complaint and would be very reluctant to give evidence. That is why the test was lowered from the criminal standard of proof.

Those in this House who have been elected members, whether at local council level or who have been Members of Parliament, will have had brought to them cases of inter-neighbour disputes that have gone on for years. You tell them, “Keep a diary, keep a list” and so on, and they come back two, four or six weeks later with a completed list, none of which would be sufficient if we were still operating under the old system of a criminal standard of proof. That is why the previous Government introduced anti-social behaviour orders. I do not think that anyone suggests that anti-social behaviour orders have all worked perfectly, but they made a real difference to the lives of very many people. The reason was that we were changing the way in which those actions could be brought and lowering the standard of proof.

The problem with what the Government are doing is not that they are trying to simplify the system or make it better but that they have swept away what has over time developed and then moved to this system of applying for an injunction, or IPNA. By changing the test to one of nuisance and annoyance, they have opened up the prospect of a lower standard of proof being applied in far broader areas. We can all add to the list of things that cause nuisance and annoyance. While it is true that Clause 4 limits the list of organisations which might apply for an IPNA, it does not deal with the circumstances in which there will be very powerful local lobbying about much lower levels of nuisance and annoyance. The regime will be applied to local authorities; it will be applied to local housing providers—and an interesting question is what a local housing provider is. Is it somebody who happens to rent out one room? In which case, can they apply willy-nilly for IPNAs against all and sundry in the local neighbourhood? I am sure that this issue has been addressed in the guidance but that I have just not read it yet. There will be all sorts of cases where people raise matters which at the moment would not qualify for the ASBO procedure.

The reason why we are debating this amendment is that the Bill has created these anomalies. It would be clearly obnoxious for injunctions to be issued in respect of trivial matters on the basis of this lower level of proof. Equally, we are in danger, for those very legitimate reasons, of throwing away all the progress that has been made in the past few years by reverting to the criminal standard of proof. I think of my time as a local councillor and my time on the London Assembly, where much of my constituency work related to anti-social behaviour issues. The difference that it made for the local authority or for the housing association to be able to pursue these matters as they were able to under anti-social behaviour legislation, provided relief for many people. That is not to say that there were not problems or that some places were not more reluctant and so on. I shall propose an amendment later which states that there should be some coherent planning locally as to what the arrangements should be for pursuing IPNAs in a particular area and that there should be an anti-social behaviour strategy in local areas, but we will come to that later. However, the important point is that, because the Government have made such wholesale changes and have then tried to force them into the single IPNA process, we are in danger of sacrificing the civil liberties or well-being of many people who were protected by the regime of anti-social behaviour orders.