Anti-social Behaviour, Crime and Policing Bill

Baroness Berridge Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Berridge (Con)]

My Lords, there are many principles in this Bill of many parts but I shall mention briefly the IPNAs, forced marriage, the IPCC and miscarriages of justice.

I have the privilege of serving on the Joint Committee on Human Rights and I am pleased to hear that our recent report on the Bill is being relied upon in your Lordships’ House and, with one notable exception, being agreed with. However, it is important to remember the context outlined in that report at paragraph 11:

“Preventative measures against anti-social behaviour are in principle a welcome fulfilment of the positive obligation on the state to protect people against having their rights interfered with by others.

An Englishman’s home is his castle and many of us take for granted that yesterday’s storm was an unusual intrusion on a quiet night’s sleep. One only has to glance at the fly-on-the-wall TV programmes filmed in some of our neighbourhoods to realise the need for legislation in this area that is easily enforceable. It is sad that the law is being used not only to protect you from your criminal neighbour but to try to make your neighbour be a considerate one.

I found it most illuminating to speak to lawyers who practise in this area. This brought home to me not only the type of behaviour that has been outlined in your Lordships’ House but the lengths to which witnesses have to go to provide appropriate evidence for the current ASBO and ASBI regimes. Usually it involves months of diary-keeping, spending time every evening detailing the day’s events, recording the exact time of the spitting through the letterbox, for how long the music was blaring, which other people witnessed the dog defecating for the umpteenth time on your front doorstep, and who else can confirm that the cannabis smoke that was wafting into your children’s bedroom was indeed cannabis. However, sometimes the threshold of tolerance apparently just grows so that none of the above registers on the Richter scale of annoyance any more. Often the diary ends abruptly. When asked in court why that is so, sometimes the answer is, “Someone in the family got cancer so there were other things to focus on”.

Many months, of course, often elapse between the behaviour starting, the behaviour becoming persistent, the complaint being made to the authorities, the decision being made by the authorities to take action, the evidence being gathered, proceedings being issued and a directions hearing being heard at court. There is already a huge ask of witnesses who, of course, are telling all this while living in the neighbourhood when this behaviour is still going on. So I welcome the streamlining of the powers, the increasing number of agencies that can apply and the attachment of a power of arrest.

It is also welcome that the breaching of an injunction to prevent nuisance and annoyance will not be a criminal matter. Many children go through phases when they are a nuisance to a neighbour—they knock and run a bit too often, are too loud and maybe for a while they are just caught up in the wrong crowd—but it will now not mean a criminal record. However, I, too, see that some form of reasonableness needs to be added to the test outlined in Clause 1, as recommended in the Joint Committee on Human Rights report.

I would be grateful if my noble friend, before Committee, could clarify Clause 1(5)(a) in relation to the effect of injunctions and the right to hold religious beliefs, which is an absolute right. It is only the manifestation of one’s religion that can be subject to limitation by law as necessary in a democratic society, not the holding of the beliefs per se, as Clause 1(5) currently states.

As I have read the statute, it does not deal with a situation where offences are committed by groups of offenders. Sometimes some of the offenders are over and some under the age of 18, and they need to be tried in one set of proceedings. This should be a simple change. It would be an undue burden on the witnesses I have mentioned to have to attend court twice. I believe a simple amendment has been put forward by the Law Society.

On forced marriage, there has been much debate as to whether to criminalise this matter and I support the Government’s decision to do so. That sends important messages about the basic role of consent in marriage and sexual relationships, of the right of the individual to choose and, conversely, of the appropriate place for cultural, community, family and religious views.

In the ITV programme “Exposure”, I found the comments of the Chief Crown Prosecutor in the north-west, Mr Nazir Afzal, illuminating. The reported cases of forced marriages involved Sikhs, Hindus, Jews, Christians and Travellers, as well as reflecting the appropriate proportion of Muslims. Mr Afzal’s labels are all communities, so criminalisation could assist individuals in those communities to defy the leaders or families and assert their own wishes—in fact, their own human rights. Sadly, however, this legislation recognises an anomaly in Clause 108(3). For the purpose of the criminal offence of forced marriage, it does not matter whether the marriage is a religious ceremony that is not a legally recognised marriage under UK law. As I understand the legislation, someone can be forced into a marriage, which would be a criminal offence, and the spouse who forced them into the marriage would be imprisoned. However, if it was merely a religious ceremony, then the woman—it is usually the woman—has none of the protection of the division of family assets available in our divorce courts. Will she suddenly be entitled to be given the family assets under the Proceeds of Crime Act? Will Her Majesty’s Government please take this opportunity to look at the religious marriages that are not legally binding in UK law that are misleading women, and perhaps look at putting responsibility on the religious leaders who conduct such ceremonies?

With regard to the IPCC, I welcome the fact that the Government are enacting some of the recommendations from the Home Affairs Select Committee. However, the Select Committee also said,

“it is vital to have a body that is truly independent and competent”.

I have to wonder how this is achieved with the proposed transfer of resources from the police forces’ own professional standards departments—the same departments of which it was said by the Select Committee:

“It is unacceptable that Police Standards Departments had made the wrong decision in 38% of appeals”.

Will this really enhance the IPCC’s reputation of independence from the police it investigates, or the credibility of those investigations?

Finally, will Her Majesty’s Government please consider the Select Committee’s recommendation to change the name of the IPCC to the Independent Policing Standards Authority? This would reflect its broader functions—over, for instance, Her Majesty’s Revenue and Customs. It would also serve another purpose. Last week, during the latest plebgate episode, the following actors were on the media stage: three police officers from something called the Police Fed, three chief constables, a Home Secretary, a Prime Minister, a PCC and an IPCC. The accidental similarity of the acronyms of the latter two bodies may also be fudging in the public mind the different roles that they perform. I had to listen very carefully to the news coverage to work out which body they were actually referring to.

Whether one agrees with Blackstone’s formulation,

“It is better that ten guilty persons escape than that one innocent suffer”,

there has always been great protection for the innocent in common law by the presumption of such innocence. When a miscarriage of justice is proved, I am very proud of our history of paying compensation in appropriate cases. I am also proud that our law in this area has recently been upheld by the European Court on Human Rights in the case of Allen v the United Kingdom. The changes outlined in Clause 151 of the Bill are not, apparently, to save money but to make the system more certain for applicants and simplify the case law to apply. However, as your Lordships have seen, there is significant disagreement about whether Clause 151 reintroduces the old case law of having to prove clear innocence to receive compensation. I speak as a lawyer, but to avoid the Committee on this Bill being blinded by the case law, I hope that the Minister will convene a meeting so that Members can hear the arguments of the Home Office, the Joint Committee on Human Rights and of any other interested Members of your Lordships’ House. On a practical note, as our law has already been all the way to Strasbourg, the Government may inadvertently be starting that journey again by changing it—even if the intent is to simplify that law.

Many of these matters will come back to your Lordships’ House in Committee. I am concerned to have the best evidence to present at that stage. If time allowed I would make submissions on Schedule 7 to this Bill. I hope that my noble friend the Minister will assist me and any Members of your Lordships’ House as I have made a request, which the parliamentary police service scheme is seeking to fulfil, to go and see Schedule 7 in action at our ports and airports. It is unusual that they have the power to stop people without reasonable suspicion. I hope that my noble friend can assist in that matter.