Anti-social Behaviour, Crime and Policing Bill

Lord Dear Excerpts

Tuesday 29th October 2013 Lords Chamber

[Lord Dear (CB)]

My Lords, in addressing this omnibus, complex, 200-page Bill, I am conscious that it seeks to shine a very bright light indeed on anti-social behaviour. We have heard a lot about that in your Lordships’ Chamber today. It is behaviour that, at its worst, can cause an absolute blight on society and on the individuals caught up in that action. I think that the words of the noble Baroness, Lady Newlove, moved us all when she explained just how, in extremis, that can affect individuals.

I had thought—and I think that the noble Lord, Lord Ponsonby of Shulbrede, shares my view—that there was some evidence that the existing law, held in the Crime and Disorder Act 1998, was beginning to work with regard to anti-social behaviour orders. I have a couple of questions, not for the Minister to answer today but to hang in the air as we go through to the Bill’s later stages. Are there any compelling reasons why we should redraft sections of that Act? Is there anything that cannot be addressed by changes in policing practice, better targeted policing and embracing to better effect the other statutory services? I will not go on at great length as much of what I had planned to say, inevitably at this late stage, has been said but I, too, am concerned about the imprecise wording which, as we have heard, has already been criticised by Justice, Liberty, the Home Affairs Committee, the Joint Committee on Human Rights and others. The Bill seeks to extend the number of potential claimants originally set out in the Act. It is a fact that it is quite unprecedented to authorise injunctive relief in civil proceedings, even though the public authorities concerned may not have a direct interest in the relief that they seek. That is a very considerable extension of power.

The eyebrows go up even further on the burden of proof. The McCann case brought in the enhanced civil burden—the criminal burden of proof under the existing Act—and we are now seeking in the Bill to drop that onto the balance of probabilities. Taking that particular point, I want to focus on one set of words and to remind the House again that for anti-social behaviour orders under the existing Act the operative words are “harassment, alarm or distress”. I have no problem with those, and I think that the courts and the practitioners have no problem either. The concept of harassment is very well rooted in various statutes in our lexicon of law, “alarm” means fear or fright, and “distress” is fairly obvious as well.

Yet under what we are now calling IPNA—the injunction to prevent nuisance and annoyance—we drop all that and go back to using the words “nuisance or annoyance”. There is no ready reference to those terms in the criminal law, only in housing law. I have a distinct feeling of déjà vu in connection with the words “nuisance “ and “annoyance”, because it is almost exactly a year ago that I stood on the Floor of the Chamber to talk about an amendment that I had tabled to remove the word “insulting” from Section 5 of the Public Order Act 1986. Noble Lords might remember, if they were there, that that section criminalised,

“threatening, abusive or insulting … behaviour” .

“Threatening” is no problem, “abusive” is no problem, but the definition of “insulting” had been widely abused for many years. It was used by vindictive complainants to urge the police to take action when otherwise they would not, and by over-zealous police officers to deal with something that could have been dealt with by the exercise of common sense. Whether or not the individual went to court, it had a distinct chilling effect on the exercise of free speech. The amendment was whipped against, but it was solidly backed by many Members of your Lordships’ House, and was carried by a substantial majority.

I mention this because the word in play at that time was “insulting”, and the two words that we are specifically looking at here are “nuisance” and “annoyance”. “Insulting” was vague and led to all sorts of difficulties in the exercise of the criminal law. I would confidently expect that if we leave in the phrase “nuisance or annoyance” that will lead to the same thing.

In fairness to the Home Office, I have to say that only today I was given a document called Reform of anti-social behaviour powers—Draft guidance for frontline professionals. This is a draft practice document that I understand is going out for consultation, and it seeks in an honest way to give practitioners an idea of what they might bear in mind when they are looking at those words. According to the draft guidance, the test is whether:

“On the balance of probabilities, the respondent has engaged or is threatening to engage in conduct capable of causing nuisance or annoyance to any person; and … The court considers it is just and convenient to grant the injunction to stop the anti-social behaviour”.

The reference is to the court, so the chilling effect will still go on. If we leave it to the court, I guarantee that the practitioners will still wheel in cases and let the court try to deal with them, and we will get into the same position that we did with Section 5 of the Public Order Act.

I congratulate the noble Lord, Lord Paddick, on his excellent speech. He talked about the need for balance, proportionality and reasonableness, and I am entirely in accord with what he said.

Having criticised part of the Bill, I shall conclude by racing quickly to touch on the parts that I shall have the greatest pleasure in supporting, certainly in very broad terms. Here, I remind the House of my previous service in the police. Those are the provisions on forced marriages, the implementation of the College of Policing and all that goes with that, the attempts to strengthen the IPCC—we have heard much about that, and I am entirely in accord with what has been said today—and the moves to abolish the Police Negotiating Board and establish something much better called the Police Remuneration Review Body. On dangerous dogs, I, too, agree that it is the owners who are at fault. I spoke to my two Labradors only yesterday and they assured me that the owners, not the dogs, are always at fault. The possession of firearms for supply is also covered.

Lastly, there is something that is drawn from those excellent two reports by Mr Tom Winsor. I refer to the appointment of chief officers of police from other countries. That would have to be taken in parallel with what he has also recommended regarding two-tier entry into the police and direct entry to the rank of superintendent. All that is wrapped up together in an envelope called “leadership”. Noble Lords may recall that I have spoken on numerous occasions in this Chamber on the urgent need for a far higher standard of leadership across the board, recognising that there are some very fine leaders in the service already but not enough. We need to get hold of the leadership issue in the police service. The part of the Bill dealing with the appointment of chief officers of police from abroad will have my complete and utter support.

I look forward to the debates that will come in the later stages of the Bill and will do all that I can to support it.