Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Wednesday 8th January 2014 Lords Chamber

[Baroness Hamwee]

My Lords, in Committee, I tabled an amendment on the clause which was an attempt to suggest a compromise before we had even discussed it, because I knew that the Government would be keen to stick to the general approach. That amendment would have meant that the clause applied only to 17 and 18 year-olds.

As the right reverend Prelate said, the existing provisions are not absolute. I have some questions for the Minister arising from them. Given that there is currently discretion to allow reporting that is in the public interest, and given the public policy underlying the Bill, would that not be a strong indicator to the court on how to view the public interest test? Would not reversing it, so that the individual is named unless the court decides otherwise—apart from the consequences for the individual; I entirely take the points that have been made—mean additional process for the courts?

I suspect that there would have to be a pre-trial application for anonymity. If I am right, how does one ensure anonymity before that or in the listing of the application? The right reverend Prelate made the point that that would overturn the culture—in fact, the practice—of the youth court. It would be much easier for it to be able to continue with its current practice.

The existing provisions contain a lot of detail about lifting restrictions. Conversely, if one has reversed the presumption, what is the trigger for restriction to apply? What would be pointed to in an application to restrict reporting? Another question is whether any stakeholders have argued for the provision that we see in Clause 17.

Finally, what consideration have the Government given to how communications have changed, particularly with Twitter, which spreads information almost faster than a heartbeat and certainly before restrictions could be applied? Ironically, the law brought into effect in 1933 seems more appropriate for the age of speedy communications, where you start with restrictions and then consider whether to lift them. That would work much better for communications 80 years on.

[Lord Hope of Craighead (CB)]

My Lords, I add just a word based on my experience of how these things are dealt with in the courts. The advantage of the present rule is that a uniform rule applies throughout the country and avoids the problem, which is commonplace in the courts, of different practices in different areas and different judges taking different views. The uniformity of the rule is one advantage.

The second point, which the noble Baroness just mentioned, is that it is essential, if a reporting restriction is to be effective, that it be asked for at the beginning. There is always a risk that somebody nips out of the court before the order is made and the damage is then done but the individual can say, “I wasn’t there when the order was made”. To be effective, it has to be made at the start.

The third point is representation. I do not want to go into the issues about legal aid, which are not a matter for this debate, but there would be concern that people who are not very experienced and not attuned to all the matters raised by the right reverend Prelate fail to take the point. My impression is that if the point is taken as eloquently as the right reverend Prelate made it, the court would be very slow not to make an order unless there were compelling reasons for refusing the application, but it requires an application to be made, because I suspect that a court will not take the initiative without that.

Those are advantages of the present rule which would be lost. Obviously there is a balance to be struck, but I would be interested to know to what extent study has been made of the effect of losing those advantages, if the Bill is to remain in its present form.

[Lord Rosser]

My Lords, I will be brief. The Minister has been asked a number of relevant questions and I am sure that noble Lords will be waiting to hear the responses. In particular, do the Government anticipate that their proposal, with provision for suspending Section 49 of the 1933 Act, is likely to lead to a significant increase in the number of children being named as a result of that suspension of Section 49? Or do they take the view that it will lead to very little increase at all because they think that courts will regularly make decisions—an active choice—not to name the child in question? The question has already been asked about the Government’s intentions, not in respect of numbers or an exact figure, but whether they are looking for a significant increase in the number of children named. Is that the purpose of this? Or is their view that even though they are making the change, it may not make a great deal of difference because the courts are more likely to look at this matter and make the active choice not to name the child in question?

The answer may be that it is already covered in the draft guidance. I have not looked at the guidance to see if it is. However, if it is not already in the guidance, is it the intention that the guidance which will be issued to professionals will say anything about making applications to courts for children not to be named where professionals are directly involved? If it is not in the guidance is it the intention that it should be put in that guidance, and what in fact would it say?

I will leave it at that; the concerns have been expressed about this. Obviously there are already circumstances where children can be named as far as legislation is concerned, and I do not want to pretend that that is not the case. Clearly the Government were expecting that numbers of IPNAs would be issued and, therefore, that that might have an effect on the numbers of children being named. Whether that would still be the case in light of the amendment that has now been carried will remain to be seen. Nevertheless IPNAs will still be around, and that may lead to an increase in the numbers of children being named. It would be helpful to know the Government’s stance. Is that what they are looking for—or do they not see it making a great deal of difference? Will they be giving advice to anybody? I know that they cannot give advice to the courts, but will they give advice to professionals who might be appearing in court in order to make sure that courts are reminded at the very least that they do have this power to make the decision that children should not be named?

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Wednesday 11th December 2013 Lords Chamber

[Lord Taylor of Holbeach]

The European arrest warrant provisions are indeed Europe-wide, so they cover a number of different jurisdictions. None the less, proportionality and human rights considerations are written throughout these particular parts of the Bill. As I said, Sir Scott Baker investigated this. He felt that the human rights bar to extradition did not permit injustice, if it was believed to exist, or oppression, and the Government agree with that assessment. I hope that I have satisfied my noble friend and that he will accept that the Government are not operating this mutual extradition facility which the European arrest warrant provides for in a way which is unreasonable to people who are subject to extradition requests.

[Lord Hope of Craighead (CB)]

Perhaps I may assist the Minister in replying to the question that has been raised. Recently, the Supreme Court had to consider a case where an individual was being sought to be extradited to Albania. The court was told that there was a high degree of corruption among the judges and the extradition was stayed so that the degree of corruption could be investigated further. The matter is now in the hands of the Lord Advocate in Scotland. That is an example of the kind of phenomenon to which the noble Lord referred—where the standards in one of the new countries are not up to the standards that one might expect. However, I suggest that the courts are very astute in ensuring that the human rights protection in relation to a fair trial is preserved. That is a very recent example which I think meets the point that the noble Lord, Lord Lawson, had in mind.

[Lord Taylor of Holbeach]

Not for the first time, I am very grateful to the noble and learned Lord, Lord Hope of Craighead, for his intervention in this matter. I should say that Albania is not a member of the European Union at this stage. However, the principle applies, as the noble and learned Lord said. Section 21 of the existing Act already requires the judge to be satisfied that extradition is compatible with the human rights convention, and that includes the right to a fair trial. Therefore, that already exists in law.

In conclusion, I am grateful to my noble friend for giving the Committee an opportunity to consider various aspects of Part 12 of the Bill. On a number of the issues he has raised, I think that we share the same policy objectives, and in such cases where we have differences between us, they may well simply be a matter of drafting. Having had this important debate and in the light of my comments, I hope that my noble friend will agree to withdraw his amendment. If, on reading the record, he finds that there are still aspects with which he is concerned, I hope that he will not hesitate to raise them with me.

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Wednesday 4th December 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, perhaps it might help if I could balance out the contributions from the Cross Benches by speaking as someone who has never been a police officer or had any responsibility for policing in this country. I approach this amendment by looking at it on its own terms as something which is directed to Clause 126, on the assumption that the clause remains part of the Bill. I make no comment on Clause 126 itself, but I see merit in the amendment for one particular reason.

I have no reason to doubt the proposition that the Government care deeply about considerations of national security and intelligence. Approaching this matter from the sidelines, I would be very surprised if considerations of that kind did not cross the mind of those who were considering making these appointments; let us assume that as a given, in favour of the Government. The value of the amendment is that it counters the suspicion that some may have that these considerations are not in the mind of the Government. It also has a disciplinary effect, because the exercise that is being proposed here will, of course, be carried out in advance of any of these appointments being made. It will help to focus the mind and lay on the table the considerations which one would assume the Government will take into account in making these appointments.

If one thinks of the acceptability of the appointment through the entire police force, the fact that these considerations were on the table and so can be assumed to have been taken into account would add considerable weight to the appointment and the respect in which the appointment-holder would be entitled to be held. Purely from that standpoint, as a former judge and not as somebody who has any experience in the detail of the matter, I respectfully see value in the amendment.

[Lord Rosser]

My Lords, I will resist the temptation to go beyond the amendment that we are principally discussing, Amendment 105. We acknowledge that the Government appear to have a strong wish to bring personnel into the police from overseas, but there is an obvious concern that has been powerfully expressed tonight over the implications for the security responsibilities of the posts mentioned in Amendment 105 and their access to the highest classification of intelligence. The question has been powerfully raised of whether it is appropriate that the positions indicated in Amendment 105 should be held by a non-UK national on national security grounds. The strength of the amendment, as the noble Lord, Lord Hope, has indicated, is that it does not say no, but it requires that written advice be sought from the Intelligence and Security Committee as to whether there are any considerations of national security and intelligence that would need to be examined in relation to the appointment of a non-UK national to the posts mentioned in the amendment. Obviously, there is also the requirement that Section 126 would not come into force until the views of the Intelligence and Security Committee had been obtained and given to the Secretary of State and,

“a copy of those findings has been laid before both Houses of Parliament”.

I always say, “subject to what the Minister has to say, since he might persuade me otherwise”, but it seems to me that, in view of the concerns that have been raised— which seem legitimate—Amendment 105 is eminently reasonable. It is not giving an answer to the question, but it is saying that surely the issue is of sufficient importance that advice should be sought from the Intelligence and Security Committee. We will await the Minister’s response with interest, particularly on whether they have already assessed the security implications of a non-UK national filling one or more of the positions listed in Amendment 105 and have come to the conclusion that there are no national security considerations.

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Monday 25th November 2013 Lords Chamber

I wonder about these time limits which, to me, seem potentially too restrictive. To make them even more restrictive, as the noble Baroness, Lady Hamwee, suggests, would be detrimental to the objectives that the Minister is no doubt seeking for these powers.

[Lord Hope of Craighead (CB)]

My Lords, I share the puzzlement of the noble Lord, Lord Harris, about the provision in Clause 56, particularly as all the flexibility needed is covered in Clause 57. There is a power to discharge, which would no doubt be exercised when the local community is satisfied that the order is no longer needed, and there is a valuable power to vary the order so that it could be extended to more people or its scope reduced if that is shown to be necessary. Flexibility is key and I would have thought that one could get by perfectly well with Clause 57 without having Clause 56 there at all.

[Lord Faulks (Con)]

My Lords, I respectfully agree with what the noble and learned Lord has just said. The only way in which Clause 56 might be amended to satisfy the anxiety is to make it a relatively simple procedure. At the moment, subsection (5) requires that the local authority must consult various people. If the local authority was given an opportunity so that it “may” consult rather than “must” consult, it would make the extension a relatively informal procedure. Otherwise, I entirely accept what the noble and learned Lord says: Clause 56 is over elaborate in view of the existence of Clause 57.

--- Later in debate ---

When I raised this issue in respect of dispersal orders, the noble Lord, Lord Taylor of Holbeach, was unable to answer. I want to try again because I feel very strongly about this. I am sure that we will also return to it for dispersal orders. Any new order that is introduced has to be evidence-based. I am sure—or I hope—that the noble Lord would agree with that. Can he explain where the demand is coming from which says that the public spaces protection order is the appropriate way to proceed instead of the three existing orders, and that that is the only option available for improving or changing those orders? This is another example of where the Government, in trying to streamline or rationalise orders, have let things drop and not identified all the problems and all the issues, such that we could well find ourselves in a weaker position in dealing with these issues. I hope the noble Lord can reassure me that that is not the case. On the present evidence, however, I am worried that effectiveness will be lost by trying to squeeze three orders into one solution.

[Lord Hope of Craighead]

My Lords, I will just add a supplement to my addendum to the point made by the noble Lord, Lord Harris, on the flexibility that lies within the clauses as they stand. Clause 55(8)(c) creates a power to specify the period; so, with great respect to the noble Baroness, it is not a fixture that it will always be three years. If one takes that flexibility along with the point that I made earlier about Clause 57, a lot of flexibility is built into this. It is a very sensitive and well designed measure, subject to the point about whether Clause 56 should be there at all.

[Baroness Smith of Basildon]

As a point of clarification, I am fully aware that it is not three years in every case—it is up to three years. However, one of my concerns is that, because of the cost of renewal and the uncertainties around that, a number of local authorities may think that three years has become the default. It will be easier for them to run to the maximum of three years rather than face the bureaucracy and costs of renewal by doing otherwise.

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Wednesday 20th November 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

Perhaps I may briefly take the Minister back to Amendment 21D. He made a number of points to explain how in practice this measure will be dealt with in the case of people under the age of 18. I was looking at the draft guidance as he was speaking and some of the points that he made do not appear there. Certainly, the point is made that the power of exclusion would not be used often, as is the point about the high threshold and so on. However, for example, the Minister mentioned the function of the youth offending team but that is not mentioned at pages 25 and 26 in this chapter of the guidance. I can see a value in the continuing duty of the youth offending team when dealing with young people who are excluded from their home, but it would be helpful if that were to be put in the draft guidance. Will the Minister undertake to look at the guidance as well as the drafting of the Bill when dealing with the point that the noble Baroness raised?

[Lord Taylor of Holbeach]

We have already committed to looking at the draft guidance in the light of our debates. More to the point, it is explicit in the Bill that the youth offending team is involved.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my amendment is grouped with the debate on Clause 17 stand part and Amendment 22DA in the name of the noble Lord, Lord Ramsbotham. Within the past few minutes, he has sent me a note asking me to apologise to the Committee. Like many of us, his anticipation of what would happen, and when, was rather thrown. He said that he had an impossible diary today with long-agreed speaking engagements outside the House. However, in case the Minister thinks that that lets him off the hook from attack from that quarter, the noble Lord has primed the noble Earl, Lord Listowel, to speak on his behalf on his later amendments. The noble Lord said that he would not dream of considering voting before Report anyway, although I think one might add “ … ” to that.

My amendment is to Clause 17. I have not sought to delete the clause from the Bill because I wonder whether it might be possible to discuss a compromise. I am aware that this is a delicate issue on which there has already been quite a lot of focus. The clause provides that Section 49 of the Children and Young Persons Act 1933—it has a long pedigree—is not to apply to proceedings on IPNAs. That section restricts reporting of proceedings in which children and young persons are concerned. That provision restricting reporting also has an exception within it. Is that exception not sufficient for the Government's purposes? The exception is that if the court is satisfied that it is in the public interest to do so, it may dispense to any specified extent with the requirements of the section. Is that not sufficient? That is Section 49(4)(a). Section 49(5) provides that the court can similarly dispense with the requirements of the provision if it is appropriate to do so for the purposes of avoiding injustice to the child or young person.

We have talked on a number of occasions about one purpose of the ASBI being to avoid criminalising young people, whom we hope to divert from a criminal career—not to consolidate a criminal career. Given the way in which reporting would be likely to happen, this provision would criminalise the young person and have a very unfortunate long-term impact. “Naming and shaming” is not a term I like to use—it means stigmatising and putting a negative label on the young person. There must be a very high risk of perpetuating the problems which an IPNA should be looking to nip in the bud.

We have also talked about positive re-engagement and rehabilitation. I question whether not imposing reporting restrictions would be a deterrent. Is there any evidence that it might be? There are also, of course, safeguarding concerns. This had not occurred to me, but I am told that professionals consider that there is a risk that children who are identified as having been involved in anti-social behaviour may engage in risk-taking behaviour or be more susceptible to being groomed. This is very much in our mind at the moment.

In all, it seems to me that the risks, quite apart from the concerns that have been voiced by the Joint Committee on Human Rights and the Local Government Association, are too big. Perhaps the Minister can tell the Committee what lies behind this; what evidence the Government have that this is the right way to go; what assessments have been made to evaluate safeguarding risks, and whether the Government have kept in mind the impact on a child’s rehabilitation. I beg to move.

[Lord Hope of Craighead]

I add just a short point to what the noble Baroness has said. When one looks at the draft guidance at page 26, one can see what the Government are thinking of here. The point is made that making the public aware of the perpetrator and the terms of the order can be an important part of the process in tackling anti-social behaviour. One can follow the thinking behind that proposition. When one reads on, however, one sees that there will be circumstances in which either the police or the council may decide not to publicise the fact that an IPNA has been made. It seems to me that the power—or the discretion, perhaps one should say—to decide whether or not publicity should be given is being taken away from the court and given to the police or the council. Will the Minister explain why that is being done, bearing in mind the point that the noble Baroness has made about the discretion which exists within Section 49?

It is a very big thing to take away from the court the power to restrict publicity, bearing in mind the reach of the whole of Part 1, which is what we are concerned with, including Clause 5, which permits an application for an injunction to be made without notice being given to the respondent. The court would have no power to stop the press if they happened to be there reporting what had taken place. It would be a very serious matter to go as far as the clause goes without a full explanation why exercise of discretion is being taken away from the court and being given to the police or the council, who are not answerable to the court for what they do.

[Lord Paddick (LD)]

My Lords, I speak from personal experience of dealing with the previous regime under ASBOs. There was a tendency among some local authorities to publicise how many ASBOs they had been granted by publishing a rogues gallery of photographs of people against whom ASBOs had been granted. This was done for political purposes, not to pursue the ends of justice. Some young people thought that having an ASBO against them—or, in this case, an IPNA—was a badge of honour that they could show off to their mates. They were young people with a juvenile attitude. It almost encouraged them to breach the ASBO because their picture had been publicised and they had local notoriety. There is a danger that this provision could make what was a very unhelpful situation under the previous regime even worse.

--- Later in debate ---

[Lord Taylor of Holbeach]

I thank my noble friend for those encouraging words. I feel that we are right on this issue and I suspect that all noble Lords will know that, with discretion on this matter resting with the courts, there will be proper evaluation of the issues before any decision is made. I would expect any court to take full account of the nature of the behaviour before deciding whether to impose such a condition. I might add that the Home Affairs Select Committee considered this point during the pre-legislative scrutiny of the draft Anti-social Behaviour, Crime and Policing Bill. In its report on the draft Bill, the HASC said,

“we are happy to leave the decision not to name a young person to the discretion of the judge”.

We agree that this is appropriately a matter for judicial discretion for all respondents under 18, whether older or younger than 16.

For these reasons, I am confident that the reporting of under-18s will be carefully considered and used only in circumstances where it is necessary. I hope that I have been able to put this particular issue into context and that my noble friend will withdraw her amendment.

[Lord Hope of Craighead]

I come back briefly to the point about discretion. Of course it is right that the court will have discretion as to whether to grant an injunction. In the case of an application made without notice, the clause is perfectly clear; it gives wide discretion to the court as to what to do. My concern is that if the court decides to make an order, where is its discretion if you remove the provision in Section 49 to restrict the publicity that is given to it? It is that element of discretion that I think concerns the noble Lord, Lord Ramsbotham, and the noble Baroness. There are two discretions here. One is certainly there, very properly, in the way that the whole of Part 1 is drafted as to whether orders are to be made. It is the particular point about the discretion as to whether publicity should be given that is of concern.

[Lord Brown of Eaton-under-Heywood (Non-Afl)]

My attention is drawn by my noble and learned friend Lord Walker to paragraph 123 of the Explanatory Notes, which indicates that, even though you are getting rid of Section 49, you are left with the discretion under Section 39 of the same Act. Paragraph 123 states:

“However, section 39 of that Act does apply to these proceeding and gives the court the discretion to restrict the publication of certain information in order to protect the identity of the child or young person, for example: his or her name; address; school, etc”.

Therefore, with great respect to the Minister, his answer lies in Section 39.

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Monday 18th November 2013 Lords Chamber

[Baroness Berridge (Con)]

My Lords, Amendment 20 was recommended by the Joint Committee on Human Rights in its fourth report—a committee on which both my noble friend Lord Faulks and I serve. Amendment 20 is a modest compromise and adds an element of reasonableness or objectivity, giving the test more rigour, and will aid the authorities and other agencies. It will enable them to better explain their refusal to act on behalf of some people who just have different views on what they should have to tolerate from their neighbours and other people in the neighbourhood. I agree with my noble friend Lord Faulks that at this earlier stage, the test should have a reasonableness requirement, as it is at this stage that the officials of the authorities outlined in Clause 4 have to consider that behaviour.

As has already been outlined, reasonableness and proportionality are a requirement that the judiciary has to take into account when granting an injunction. This means that there will be reasonableness applied in the test by the officials and, of course, by the court rather than having a more subjective test by the officials and only later on encountering the reasonableness threshold. I spoke at Second Reading about the inordinate lengths to which witnesses have to go to collect the necessary evidence to get an ASBI or an ASBO. Merely adding after “conduct” the words “that might reasonably be regarded as” does not increase the evidence that has to be gathered and I therefore support this amendment.

[Lord Hope of Craighead (CB)]

My Lords, I will add a brief word to what has just been said in support of Amendment 20. The words “any person” at the end of Clause 1(2) are rather important; I would have thought that they make it all the more important that the words which the noble Lord, Lord Faulks, has suggested are put in. Without that, one would have the very difficult task as a judge of having to assess the evidence of one individual and deciding whether that individual is to be believed. If that individual says that he or she has been annoyed or suffered a nuisance, it would be quite difficult to say that the test was not satisfied. The reasonableness test is the one which would soften this and make it more realistic, and I would have thought that it was compatible with the general aim of the measure.

[Lord Greaves (LD)]

My Lords, if I sometimes tell my noble friend Lady Hamwee that she is being legalistic, that is a compliment since she is a lawyer and I am not, which means that she sees things that I do not. When it comes to the meaning of words, however, I take a straightforward, common-sense view. Words have meanings and we ought to try to stick to them, but sometimes words have different meanings. A word that may well have a respectable legal background in terms of its meaning may not necessarily mean what ordinary people in the street think it means. I think that that is why “annoyance” is causing a reasonable amount of difficulty in the Bill. It has caused many to ask, “Are we really going to have an injunction just because someone is being annoying?”. I take the view that it is a human right to be annoying to other people from time to time, because if it does not happen there will never be any progress. Perhaps that explains some things. The difficulty, however, is at what level annoyance becomes unacceptable. “Harassment, alarm and distress” are clearly degrees of annoyance but they go rather further than what people nowadays tend to think annoyance means.

In the representations that we have had on this there has been quite a concern among those who are used to ASBOs—civil liberties groups and so on—about the way in which the changes are being made, switching from ASBOs and apparently making it easier to obtain an injunction to prevent nuisance and annoyance, and about the possibility that the words “nuisance” and particularly “annoyance” are far too feeble. On the other hand, the housing associations which have been writing to us in the past two or three days are saying, “No, the existing ASBIs”—which are injunctions—“work very well and those are the words that they use”. They would be very concerned if the test was increased.

One reason for this is that you might live next door to somebody who says something foolish to you or wags their finger at you every time you go out in the morning. If it happens to you one time out in the street, and even if the person is going round doing it to lots of people, it really is no reason to serve an injunction on the person, however daft they may be behaving. But if it happens day after day or every time you go out of your house, it becomes a very serious matter. There is a considerable difference between repeated, annoying, low-level anti-social behaviour which irritates and harasses neighbours and is totally unacceptable in a residential context and the same behaviour out in the street. This is happening partly because, as the noble Lord, Lord Harris of Haringey, told us earlier, the Government are bringing lots of different things under the same umbrella.

However, what does “annoyance” mean? Being a fairly boring person and having it on the shelf, I looked in the Oxford English Dictionary, and I found four definitions. These are definitions of the verb “annoy”, but “annoyance” is clearly about annoying somebody. The first definition was “Be hateful to” or,

“Be a cause of trouble to”.

That is a fairly high level of unpleasant behaviour. The second was to,

“be troubled, irked or wearied by”,

which is a much lower level. The third was to:

“Cause slight anger or mental distress to or irritate”,

which seems a very low level. There was another, which was to harm or attack repeatedly, or harass, but it said that that was archaic and the illustration of it was, “A gallant Saxon who annoyed this coast”. Well, I am all in favour of gallant Saxons annoying the Yorkshire coast in the past, otherwise I might not be here, but that is clearly not relevant now.

To bring it up to date, the Merriam-Webster internet dictionary defines it as,

“to cause (someone) to feel slightly angry”,

which is clearly something that we ought not to be legislating about;

“to disturb or irritate especially by repeated acts”,

which might be; and,

“to harass especially by quick brief attacks”,

which probably is anti-social behaviour. That dictionary then said that “annoyance” may be,

“slight anger : the feeling of being annoyed”.

I thought “I’m giving up” but I looked further and it then said it was,

“a source of vexation or irritation”,

and then it defined it as a nuisance, so I thought, “We are going around in circles here”.

Annoyance actually has lots of different meanings, and for most people in this country today it is very low level. If we want it to be higher, the Government ought to make a real effort to define it in the legislation. It is assumed that the words “nuisance” and “annoyance” are in the law already and that everybody knows what they mean. I do not think that they do if the Government mean that they are a sufficiently high level to warrant injunctions against people.

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Monday 18th November 2013 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, 10 days ago, a number of us debated in this House the Second Reading of the Age of Criminal Responsibility Bill, introduced by the noble Lord, Lord Dholakia. I commend some of the things that were said then about the ability of children of the age of 10 to comprehend fully all the businesses of the criminal justice system when they were motivated against them. During the debate I cited the fact that the well known 10 year-olds Thompson and Venables, responsible for the murder of Jamie Bulger, were said by the psychiatrist involved in the case to have a developmental age of four.

You cannot expect a child with the developmental age of four to be able to comprehend exactly what is involved in the criminal justice system, whether it is an injunction, which does not carry a criminal record, or an anti-social behaviour order, which does. I am glad that the noble Lord, Lord Greaves, introduced age very early in this Bill, because all the way through we ought to have at the back of our minds that we are talking about anything to do with children of the age of 10.

We are way below the United Nations recommendation that the age of criminal responsibility should be nearer 15. We are way below what happens in Scotland and countries such as China. I am not sure that it is civilised to throw the criminal justice system at children of 10. Therefore, while I am glad that the intention is not that the injunction should carry a criminal record, we ought to take seriously the question of whether 10 is an appropriate age to start whatever process we have, because within society there should be other ways of doing it. I know that these are not very satisfactory at present, but let us not forget the conditions in which a lot of these children live their lives. I have always thought that it was unfortunate that Mr Blair, in his famous statement about being,

“tough on crime, tough on the causes of crime”,

rather lost sight of being tough on the causes. It seems to me that we have to get to grips with the causes, as much as anything else, when we propose the injunctions and so on that we are talking about.

The other thing that concerns me is that we have here a Home Office Bill that talks about children, while in the Moses Room we have the Children and Families Bill, which also talks about children. We learn there that the Department for Education is not actually the key organisation in the development of children initially, but the Department of Health. Then we find that the Department for Work and Pensions has a role to play in all this, as, of course, does the Department for Communities and Local Government. Therefore all sorts of initiatives are going on, all aiming at the same thing, which lack co-ordination. I feel that there ought to be a Minister of child development in the Cabinet Office, responsible for pulling all these threads together, otherwise we will go charging off in a lot of directions, which will be unco-ordinated, and the casualties will be the very people whom this Bill claims to protect.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I might follow my noble friend Lord Ramsbotham on an issue which I raised at Second Reading: the position of the court granting an order. I raised the question of whether there was anything in the Bill that provided for rules to be made requiring the court to make sure that the individual understood the order that was being made, bearing in mind the consequences if the injunction was to be breached.

I think I am right in saying that nothing in the Bill requires rules to be made to deal with that matter, but will the Minister tell us whether the guidance deals with the position of the child in court? Obviously, the guidance deals with the steps preliminary to taking this action against the individual. However, if the age of 10 is to be adhered to, it is extremely important—for all the reasons that the noble Lord has given—that the individual fully understands the consequences of the order, as well as the need to obey it.

If there are no provisions in the Bill about rules to be made, it comes back to the guidance and the responsibility on those who are guiding the individual to ensure that the order is fully understood, and that there is a reasonable prospect of the child fulfilling what he or she is required to do.

EU: Eurojust (EUC Report)

Lord Hope of Craighead Excerpts

Monday 4th November 2013 Lords Chamber

[Lord Elystan-Morgan (CB)]

My Lords, the matter before the House concerns only Eurojust, but it is clear that Eurojust and the EPPO have a very close nexus one to another. There are two ways of looking at that nexus: one is positive and the other is negative. It seems to me that the Government, and the Opposition for that matter—one is in the luxurious position on the Cross Benches of being able to say, “A mild plague on both your houses”—are approaching the matter from an utterly negative point of view. The Government have asked the question: is Eurojust in any way tainted by association with the EPPO? They answered yes; ergo, it must be rejected.

I argue that there is a forceful and utterly convincing case to the contrary. I am proud to say that I, too, am a member of Sub-Committee E. We have heard a great deal of evidence over the months with regard to European fraud. The official figure for fraud was €440 million or something of that nature. I do not think that anybody applied their minds to it properly, as the evidence was very different, appearing to range somewhere between €3 billion and €5 billion, possibly even in excess of that latter figure. Nobody was charged with overarching responsibility. That is where the case for the EPPO comes in. There is a saying in Welsh: “Everybody’s concern is nobody’s responsibility”. That is the situation here. Unless there is a body that is charged with the particular commission of looking at European fraud in a serious way, as has never happened before, I think that the whole system will be jeopardised to its very roots.

If one accepts that there should be an EPPO—and the noble Lord, Lord Hodgson, has pointed out that the objections are sere thin, casuistic and have no merit whatever—it seems to be the case that the Eurojust situation very much fits into that picture. It seems to me that the whole situation is tainted by the prejudices that have become so prevalent in the last few months in relation to Third Pillar matters. We have heard abundant evidence to show that it does not matter a row of beans what we do about 90 to 95 of those 130 measures, as most of them have virtually no effect upon our situation. One or two are of peripheral significance. Yet somehow or other the Government have managed to taint the whole situation by pretending that this is a massive battle for British sovereignty. In doing so, they are jeopardising something like 30 to 35 matters that are of crucial significance in so many different fields, and doing so cynically in order to pretend that we are somehow winning a great victory in relation to the 95 matters that never mattered at all.

I therefore very respectfully ask the Minister, whom I believe to be one of the most reasonable Ministers in government, to consider yet again whether he may be wrong in this particular matter.

[Lord Hope of Craighead (CB)]

My Lords, perhaps it is appropriate that someone who was not a member of this sub-committee should say a word or two about this issue. I come to this against the background of having been chairman of Sub-Committee E more than a decade ago, when Eurojust was just appearing on the horizon.

It is fair to say that initially there was a certain amount of suspicion as to whether it would be right for the United Kingdom to have any part to play at all, for reasons that are easy to understand: we have our own system for the administration of justice, our own prosecutors and prosecution system, which is so very different from that in the countries on the continent. However, I have kept an eye on this from a distance, and everything that has happened since then has supported the points that have just been made: Eurojust is beneficial and indeed essential to the battle against cross-border crime that we all must face up to. The only way to deal effectively with cross-border crime is cross-border co-ordination. The report says that pan-European co-ordination is required. Indeed, it is global co-ordination that is required.

From my position, based in Scotland, I would attach considerable importance to the evidence that was given by the Lord Advocate. I know that the Lord Advocate and his team have been closely involved in matters that lie at the heart of the Eurojust project. I will not mention names, but various issues have arisen where they have been hands-on in dealing with cross-border matters and the co-operation that is available through Eurojust has been absolutely crucial to the way in which they have been able to carry out their work. I do not think that anyone in the justice system in this country would have any doubt that Eurojust is beneficial and something that we should continue to support and be part of.

Anti-social Behaviour, Crime and Policing Bill

Lord Hope of Craighead Excerpts

Tuesday 29th October 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I wish to speak briefly on two issues. The first relates to Part 1 and in particular to the threshold that Clause 1 sets regarding the power to grant an injunction under it. The second issue relates to the test in Part 13 regarding compensation for miscarriages of justice under Clause 151. Of the two, the first issue is much the most important because Clause 1 will enable a court to grant an injunction against a person aged as young as 10, and because of what the breach of such an injunction, whatever the person’s age, may lead to.

Of course there is a real social problem about anti-social behaviour that must be addressed, as the noble Baroness, Lady Newlove, in her moving speech reminded us. However, one must surely be very careful to set an appropriate threshold for what constitutes such behaviour within the meaning of the statute. What is or is not appropriate will depend very much on the context. The nature of any sanction and its consequences will be crucial to that decision. What is proposed is the granting of an injunction to stop the behaviour. An injunction is one of the most powerful weapons in a court’s armoury, never to be granted lightly because a breach of an injunction will be treated as a contempt. Here Clause 86 tells us that a breach may lead to recovery of possession of a dwelling house in which the child lives or which he visits, which could have damaging effects on the family life of others who are living there. Indeed, it may affect whole families, as the noble Lord, Lord Dholakia, told us. Schedule 2 tells us that it may lead to the person’s detention. These are very serious matters. I have never, in all my 40 years of experience, heard of a court granting an injunction against a child, let alone one as young as 10, so to provide for this by statute is a very significant step, not to be taken lightly. If a court is to be enabled to do what is envisaged by this clause, three things surely are fundamental to the way that the power may be exercised. First, the threshold must be set at an appropriate level; secondly, the court must be satisfied that the person fully understands what he is being told to do or not to do; and thirdly, the language of the court’s order must be clear and precise so as to leave no room for doubt on that matter in that person’s mind.

Let us take first the threshold that appears in subsection (2). Every word used here to describe what the person has been doing, or is threatening to do, is important. We find the words “conduct capable of causing”, “nuisance or annoyance” and “to any person”. Contrast that phrase “nuisance or annoyance” with “harassment, alarm or distress”. Why is the threshold being reduced so much? Will the Minister explain the problem that has led to the decision to do this? It is a very significant reduction, let there be no doubt. I have searched the case law over the past 50 years as much as I can, for some guidance as to what a court would be likely to make of this formula. Most cases where the issue has arisen are about noise: shouting, banging doors, loud quarrels between people. However, it does not have to reach a very high level to fall within the expression “nuisance or annoyance”. Those two words, “nuisance” and “annoyance”, are put together as if they are a reasonably high threshold. However, the two words mean the same thing; putting the two together does not add anything. That which is a nuisance will annoy, and that which annoys will be a nuisance. Let us face the fact that this clause is simply dealing with people who are thought to be a nuisance.

Mention will be made, no doubt, of judicial discretion. There is a case in the books, from 1958—Raymond v Cook—that illustrates the problem. It was a case about an ice-cream man. His chimes disturbed the sleep of two night workers who had to sleep during the day. They complained, and the magistrate found the ice-cream man guilty of causing a nuisance. The Court of Appeal had a look at the case and refused to interfere, as it said that this was a matter of fact for the magistrates. It was not necessary to prove that the inhabitants generally were annoyed. The defence led people from the neighbourhood who said that they were not disturbed at all by the ice-cream van, but that made no difference: those two night workers found it to be a nuisance.

What then of the formula used here, of,

“conduct capable of causing nuisance or annoyance”,

and the words “to any person”? Even the best behaved children are often noisy. Are children whose noise when playing wakes up people who have to sleep during the daytime to be exposed this regime? I cannot believe that the Minister really intends that. If that it is so, surely that should be made clear. Even injecting “serious” into the phrase would help to some extent, but surely it would be far better to retain the ASBO formula unless something is demonstrably wrong with it. Indeed, we find it used in Clause 21(3) for criminal behaviour orders. At the very least, an explanation will be needed in Committee as to exactly why the threshold is being so drastically reduced.

It is also disturbing to find nothing in Clause 18 about the making of special rules for cases involving children under 15 or persons with mental disabilities. Should the court not be required expressly to explain the purpose and content of the injunction, to ensure that children and other vulnerable people really do understand what the order means and what its consequences will be if it is breached? The rather loose wording of Clause 1(4), which uses the words “do anything” in relation to what may be put into the order, is another point of concern. These prohibitions and requirements ought to be related precisely to the behaviour that has given rise to the injunction. These points are just as valid, whatever the wording of the threshold may be that must be crossed.

I turn very briefly to Clause 151, concerning miscarriages of justice. Of course the number of cases likely to be affected will be very few, but it is important that we get the wording of the clause right and, as the noble Lord, Lord Faulks, said, this is quite a difficult issue. The Supreme Court examined the issue in Adams. I must declare an interest, as I was a party to that decision. We will of course discuss the issue much more fully in Committee, but I will make two points now. The first is that I do not claim any primacy for the majority view in that case at this stage. I believe that it is right that Parliament should take a fresh look at this issue and should do so with an open mind. It is also right to seek to promote clarity and certainty in this difficult area.

The second point, which follows very much what the noble Baroness, Lady O’Loan, said a moment or two ago, is that it is at least doubtful whether the test that this clause lays down will cover all cases of miscarriage of justice where it is just that compensation should be available. It is not difficult to envisage situations where sheer proof of innocence, whatever the standard might be—it does not really matter whether it is beyond reasonable doubt or just on the balance of probabilities—will be simply unattainable. No doubt there will be cases where DNA evidence will resolve the issue. However, that evidence may have been lost or disposed of, and not all crimes are open to proof of guilt or innocence by that kind of evidence. It may, in the end, simply come down to one person’s word against another’s and, if you are dealing with the evidence of a wrongly convicted person who was not believed by the jury which convicted him, how can his word alone be enough to prove his innocence?

These are difficult issues. We will come back to them, and I am sure will examine them with very great care, when the time comes in Committee.