Anti-social Behaviour, Crime and Policing Bill

Debate between Lord True and Lord Rosser

Wednesday 20th November 2013 Lords Chamber

[Lord True]

My Lords, I need a little help on Amendment 22C. I heard what my noble friend said about applying a test of necessity. It seems that this potentially weakens the ability of the court by adding that it,

“is necessary to protect any person”.

The kind of practices with which we are dealing here can relate to manner and habit. It may not be that there is a proximate need to protect an individual from a specific act. It could be that I as a lawyer do not understand this, but it seemed to me that the court is surely best placed to decide. The broader definition, which does not add in the need to protect a specific individual against a specific act, seemed to me to be satisfactory. I was content with the drafting presented by the Government.

[Lord Rosser]

I certainly await with interest what the Minister has to say in response to these amendments. Subject to what he may say, at the moment it is not entirely clear why Clause 21(3) does not say that the court has to be satisfied “beyond reasonable doubt”. After all, other parts of the Bill lay down the standard of proof, whether that be reasonable doubt or the balance of probabilities.

The draft guidance on criminal behaviour orders, under the heading “Test” on page 29, states:

“If the court is satisfied beyond reasonable doubt”.

Therefore, one thinks that the term is in the draft guidance, although it is not considered important enough to be in the Bill. However, when one turns to page 30, under the paragraph headed, “The Test”, it states:

“For a CBO to be imposed, the court must be satisfied that … the offender has engaged in behaviour”,

et cetera. There is no reference to “beyond reasonable doubt”.

So there is one case where the draft guidance states “beyond reasonable doubt”, and on the following page it is not put in. On page 31, under “Standard of proof”, the guidance states:

“It is expected that courts will follow the reasoning in”—

the case of Clingham v Royal Borough of Kensington and Chelsea—

“and apply the criminal standard of proof”.

Therefore, in one version it is expected that that is what the court will do. The reference to the test on page 30 does not say anything about the court having to be satisfied beyond reasonable doubt. However, on the previous page—29–when reference is made to the test, the words “beyond reasonable doubt” are put in. There is an inconsistency in the draft guidance over the wording and there is no reference at all to it in the Bill. I think that the noble Baroness, Lady Hamwee, is making the point that it has to be beyond reasonable doubt.

I have a further issue with the criminal behaviour order. The draft guidance states:

“The prosecution, usually the Crown Prosecution Service … may apply for the CBO after the offender has been convicted of a criminal offence … The CBO hearing will occur after, or at the same time as, the sentencing for the criminal conviction. The CPS will rely on the police or council to build the case to be presented to the court”.

However, the following paragraph states:

“There is no scope for retrospective applications”.

Does that mean that if the application is not made at the same time as sentencing but is done after the offender has been convicted of a criminal offence, there could be a separate hearing into the criminal behaviour order, with the police or the council having to present their case to the court and prove it beyond reasonable doubt? Perhaps the Minister can confirm that if the application is made in that way, the case has to be proved beyond reasonable doubt.

How long after the offender has been convicted of a criminal offence can the application be made for the CBO—bearing in mind that the next paragraph appears to say that there is no scope for retrospective applications? Does that just mean that there cannot be a retrospective application in a case that has already been heard and dealt with? It would be helpful if the Minister could clarify how long after the offender has been convicted of a criminal offence an application can be made for a CBO. Is it envisaged that it will be heard on the same day? What happens if the conviction occurs at 4 pm? If the police and the council have built up a case to present to the court, do you then continue on that day with the case being presented for a CBO? Do you adjourn the proceedings? How long can they be adjourned for? It would be very helpful if the Minister, as well as responding to the issue about reasonable doubt, could tell us something about how the logistics of an application for a CBO will work in the light of what is in the draft guidance.