Anti-social Behaviour, Crime and Policing Bill

Lord Marks of Henley-on-Thames Excerpts

Tuesday 29th October 2013 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join noble Lords in congratulating my noble friend Lord Paddick on his extremely well judged maiden speech and welcome his decision to make it in this debate so soon after his introduction. He has a great deal to contribute on the issues raised in the Bill, which will be very welcome as we continue to scrutinise it.

Approaching the end of a long debate on the Bill, much of which I, too, greatly welcome, I will confine myself to coming back to the concerns I share with the JCHR—and with many others who have spoken in this debate and in another place—about the proposed new injunctions and criminal behaviour orders. With others, I fear that these new orders are likely to affect children and young people disproportionately. The Ministry of Justice’s own statistics show that in 2011 38% of ASBOs were imposed on children and young people aged between 10 and 17, who together comprise only 13% of the population.

It is true that for adults these injunctions are to be granted by civil courts and so may be called civil injunctions. For lawyers, the distinction between civil injunctions and criminal sanctions may be clear and meaningful, but for those who will be subjected to these injunctions I suspect that it means nothing. For children and young people they will be granted by the youth courts. That is understandable and probably right, but it illustrates the point that for the young people on the receiving end, injunction proceedings will be in practice almost indistinguishable from criminal proceedings. They may not get a criminal record, but even that protection is undermined by the fact that the courts may allow them to be named.

There is a serious risk that young people, whose misbehaviour might never have brought them into contact with the criminal justice system, will now be dragged into the courts by the Bill. The prospect of breach proceedings presents a particular danger for young people, with a possible sanction of three months’ detention for defaulters from 14 to 17. The threshold conduct required for an order is both too trivial and too ill defined. The phrase:

“Conduct capable of causing nuisance or annoyance to any person”,

could cover almost anything, as many noble Lords have pointed out. Speaking for too long in this Chamber would clearly suffice. The noble Lord, Lord Dear, is absolutely right to draw the comparison with insulting words and behaviour. Conduct should not qualify unless it actually causes or at least is likely to cause—not is merely capable of causing—harassment, alarm or distress, not merely nuisance or annoyance to any person.

Like others, I cannot understand why the imposition of a sanction for misconduct imposed by a court, which for those involved is effectively a criminal sanction, can require only the civil standard of proof, which is that a court finds that the conduct is more likely than not to have occurred. Not just the imposition of the injunction is at stake; there is the prospect of a power of arrest in any case involving the use of violence or the threat of violence or a significant risk of harm to others. I agree that a power of arrest is an appropriate way to make injunctions effective, but its availability serves to increase the need for full proof of the conduct concerned. The prospect of breach, contempt proceedings and punishment is at stake, and presents a real danger in a process that starts with an evidential test that most lawyers would regard as failing to meet the demands of justice.

The second condition for the grant of an injunction in Clause 1, that it should be,

“just and convenient to grant the injunction for the purpose of preventing the respondent from engaging in anti-social behaviour”,

involves a very low hurdle, which risks encouraging courts to grant such injunctions far too readily. When a statutory test like this is both insufficiently demanding and poorly defined, implementation is likely to be far too variable, both geographically and over time, so that reasonable uniformity and predictability are unattainable. A test of necessity would be much more appropriate and strike a better balance than the Bill now does between civil liberties and the rights of the wider public not to be subjected to anti-social behaviour.

I also suggest that there should be a statutory maximum term for all such injunctions, not just for respondents under 18, and a requirement that the term of all such injunctions should be no more than is necessary and proportionate. Lack of such restrictions risks particular respondents being picked on by courts and again risks irrational inconsistencies between courts and over time.

I should say that in respect of criminal behaviour orders under Part 2, two of the objections I have raised are absent. There has to be a conviction that at least imports the criminal standard of proof at that stage, and the threshold for conduct is based on harassment, alarm or distress. However, an indefinite criminal behaviour order is to be a possibility for adults, which is potentially oppressive and, as with injunctions, the positive requirements that may be imposed in such an order are entirely undefined, which is wrong.

On sanctions for breach, I agree entirely with the noble and learned Lord, Lord Hope of Craighead, in respect of the dangers of contempt proceedings against adults and of proceedings under Schedule 2 against children and young people in breach. Although there are restrictions on detention for those aged between 14 and 17, the fact that it is perilously easy to be exposed to the imposition of an injunction in the first place carries with it a serious risk of substantial injustice. I also agree with my noble friend Lord Dholakia and the noble Lord, Lord Judd, in particular that it is simply unfair that whole families should face eviction from their homes because one resident or even a visitor has breached an injunction or criminal behaviour order.

There is much else in the Bill that will require our detailed attention in due course, but we will need to be especially vigilant to ensure that the protections afforded to our generation as young people by our criminal justice system are not watered down by this and similar legislation about anti-social but non-criminal behaviour.