Anti-social Behaviour, Crime and Policing Bill

Lord True Excerpts

Wednesday 20th November 2013 Lords Chamber

[Lord Crickhowell (Con)]

My Lords, one step at a time. I am going to let my noble friend’s suggested change to the amendment pass by for the time being. However, I have a great deal of sympathy for both these amendments. I will concentrate on my noble friend Lord Marlesford’s amendment. I have now moved from my home in a national park, but I have always been horrified by the casual way that, in one of the most beautiful valleys in the countryside, people throw drink containers out of the windows of their cars as if that was a normal and natural thing to do. I am almost equally horrified—frustrated, indeed—by the attitude described by my noble friend as coming from Defra. I am not entirely surprised that it comes from officials: I am horrified that it has come in the form of letters from my noble friends who I have always regarded as thoroughly practical, sensible and wise people. I hope that my noble friend Lord Taylor will show that I am right in that respect when he responds to this debate.

The condition of our roadsides is really appalling. It is a very long time since I served in Lady Thatcher’s Government, but I well remember her returning from an overseas trip and expressing horror and consternation at the state of the road from Heathrow to London given the litter that was there, compared to the roadsides she had observed in the places she had been visiting. This was, I am afraid, one of the occasions when she did not do anything and here we are, 30 or more years later, and nothing effective has been done.

My noble friend described the comments from a Minister about the strength of the legal system and how, if you have a tough law and all the awful penalties he described, people were likely to take notice of it. I have to tell him that it is not only the hooligans and the ignorant who ignore the law. I well remember, when I was still a Member of Parliament for Pembroke, the president of my association—who had himself fought three parliamentary elections and was a distinguished local magistrate—telling me of driving back over the Preseli Hills from a magistrates’ meeting in Haverfordwest. He was horrified because someone in the car in front of him was throwing papers out of the window every few hundred yards. After he had driven for 10 or 20 miles and the confetti had been scattered along the roadside for a considerable distance, he decided to stop to see what the litter consisted of. He stopped, picked up the litter and discovered that it was the minutes of the magistrates’ meeting that he had just left. There you had a magistrate leaving a magistrates’ meeting who was so terrified of the law which my noble friend has described that he was taking no notice of it at all.

We have a very practical suggestion from my noble friend and it does not deserve the casual and rather absurd way that it has been treated so far by Defra. I hope that the Minister, if he cannot accept the amendment in exactly its present form, will tell the House that he will be prepared to discuss this whole matter in much more detail with his department in the hope that we can make some belated progress on this urgent problem.

[Lord True (Con)]

My Lords, this is the first time that I have intervened on the Bill. I should declare an interest as leader of a London borough council; indeed, it is the council that I now learn is the world’s centre of mooning. I should apologise to Lady James of Blackheath for the offence that was caused. I will try to avert my eyes when I next go to Twickenham.

I express my immense support for my noble friend Lord Goschen and his amendment. He is exactly correct to point out the scourge of fly-tipping and I hope that the Government will be supportive. Equally, I am extremely supportive in principle and in practice of my noble friend Lord Marlesford’s amendment. I am going to anticipate what I fear the Minister might say about it, in the hope of averting the risk that he will push it aside. There are issues of policing that local authorities would have to face with this. It is not as easy to identify a car from which a piece of paper has been thrown as it is to find a parked car of which you can take a photograph and stick it on the web, so that the person who has parked the car can see the offence that they have committed. The proposed process imitates the process for dealing with a parking offence, and will still have issues of proof and so on attached to it. I am sure that the Minister may well be tempted to say that. None the less, I am sure that there are ways in which, with a will, these kinds of problems could be overcome. I hope that my noble friend on the Front Bench will take it forward in a positive spirit.

I should add to what my noble friend Lord Crickhowell said about motorways, where the situation is appalling. Last time I went up the M1, I saw the astonishing investment by the Highways Agency in having ridiculously exaggerated numbers of cameras at the first few junctions. Millions must have been spent on them, the side notices and so on. Yet along the side of the road, totally neglected, were piles of litter. Something ought to be done by the Highways Agency to prioritise investment and deal with this problem, which is a terrible advertisement for our country along its main highways and which a small local authority is not by itself competent to deal with.

[Baroness Smith of Basildon]

My Lords, I find myself in complete agreement with the noble Lord, Lord Marlesford, and the noble Viscount, Lord Goschen, on this issue. It should not have been a surprise to your Lordships’ House that when we debated the Private Member’s Bill of the noble Lord, Lord Marlesford, there was enthusiastic—indeed, passionate—support for the objectives he put forward. If one talks to the public at large, they regularly raise the state of the streets and pavements, and the impact that has on their community. That is why both these amendments are so relevant to this Bill.

Noble Lords may be aware of the “Panorama” programme that my noble friend Lady Bakewell presented a few weeks ago, in which she was able to show the cumulative impact of litter on anti-social behaviour in a local community, and the pride otherwise taken by that community in how it looked and about whether that litter was cleared. At Second Reading, we were very pleased to support the Private Member’s Bill. I am not going to suggest, nor is the noble Lord, Lord Marlesford, suggesting, that every word in it was perfect; we would have welcomed the opportunity to debate it further in Committee. But if the Minister were able to take it away and look at the objectives that it is seeking to achieve, that would be very welcome.

On the issue of fly-tipping, one of the problems has been that so many local authorities have been forced into the position of cancelling their door-to-door collections of larger and bulkier items. While some people have tried to make alternative arrangements, some think it is easier to dump it in the car, drive somewhere and tip it out. Local farmers—and local authorities, as the noble Lord, Lord True, said—speak about the increasing costs that they incur in having to deal with fly-tipping and litter.

I have never been subject to mooning on the motorway—I am not quite sure whether that is within the scope of the amendment—but if an area looks bad then behaviour becomes bad as well, which is of great concern to many people on private and public housing estates across the board. I hope that the noble Lord can take away the serious sentiment that, by dealing with litter and fly-tipping, we would improve our communities and make them better places to live.

--- Later in debate ---

[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.