Crime and Disorder Bill [Lords]

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Mr. James Clappison (Hertsmere) rose

Mr. Michael: I shall give way, but I should like to continue my remarks and then respond to questions.

Mr. Clappison: I am grateful to the Minister for giving way, as my intervention is relevant at this point.

The Minister said that the police and local authorities will take account of the guidance, but, of course, the courts will not do so. Will he explain sub-criminal behaviour, and can he give the Committee an example of it?

Mr. Michael: I shall illustrate that when I discuss the type of behaviour that would reach the threshold required to grant an order. I shall touch on the question of whether non-criminal behaviour can be adduced in making out a case for an order. I should like to proceed with my remarks and deal with that point coherently when it arises. I shall certainly be happy to answer further questions from the hon. Member for Hertsmere if he is still not satisfied.

I have referred to the three elements that will establish a threshold for anti-social behaviour orders, to ensure that such orders are not used for trivial behaviour. The courts will be aware of the guidance and of the intentions of Parliament. That is an important point.

In our previous debates, several hon. Members raised the issue of the type of behaviour to be covered by the orders, and I was challenged to give examples. There is a danger that if illustrations are given, they could be used to set the position in stone. We had long debates about such matters during the passage of previous legislation on criminal justice. Members of the Conservative Government shied away from giving examples when challenged to do so.

I have tried to help hon. Members by including in the guidance a few generalised types of behaviour that might be caught by the orders, although they are merely illustrations. I shall cover the matter further in a moment, by giving some more examples. However, I must make it clear that they will be examples, not a definition of the type of behaviour that would be covered.

It is important to examine what the orders are intended to do. There are three key elements. First, the orders are intended to tackle persistent behaviour. Indeed, a preventive order would make no sense if it dealt with a single event. Secondly, the cumulative effect on the victims of anti-social behaviour will often be more important than each individual act. That creates a perspective in the case of the orders different from that which relates to normal criminal offences, in which the seriousness of each action counts. Thirdly, the orders are intended to be used for criminal or sub-criminal activity, not for run-of-the-mill civil disputes between neighbours. If the relevant behaviour is criminal, the order should be used if criminal procedures might not be appropriate or might not prevent further anti-social activity. The intentions are precise.

We want primarily to target activities that ruin the lives of individuals, families or communities, and which cannot be dealt with effectively by existing measures. On Tuesday, hon. Members pressed very hard to be given an example. I remind them that it is for the police, the local authority and the courts to recognise what has been described as the elephant on the doorstep, which is easier to recognise than to define, but I shall give an illustration.

10.45 am

Let us take the example of the proverbial family from hell. It might involve arguments with neighbours, peppered with threats; persistent loud noise at unsocial hours; the posting of excrement through the letter box of a neighbour who dared to complain; the dumping of refuse all over the place, perhaps in neighbours' gardens; and abusive language, intimidating behaviour and the intimidation and bullying of neighbour's children on the way to and from school. Hon. Members can fill in further detail for themselves. Several of the events that I have listed might be criminal acts, but the impact of that pattern of behaviour on neighbours is the important thing.

Some actions in any list of types of anti-social behaviour might be criminal offences, while some might be subject to civil remedies; for example, loud noise can be dealt with under environmental health legislation. It would be appropriate to make it the subject of an order only if it was part of a wider pattern of behaviour that caused concern. If the family in question lived in a council property, the powers of the local authority as landlord would be available. In some circumstances, the sum of existing remedies fails to deal with the real problem. I have experienced such cases. I have spent time with the police and relevant local authority trying to tease out a way of using options such as prosecution or eviction, and found that the problem, and the misery for the neighbours who were targeted, continued. That is why we need the new remedy.

A series of events such as I have described should be dealt with as a package. The inability of existing remedies to do so gives rise to the need for the order. Such events need to be prevented from recurring, not merely where a remedy exists punished. Often, the criminal burden of proof could be satisfied with respect to one or two actions. However, that would not reflect the impact on neighbours of all that was being done, which there was a need to prevent from happening subsequently. That could be taken into account in an application for an anti-social behaviour order.

What I have explained answers, in part, the question whether an order would be more or less serious than sanctions under the Public Order Act 1986, which I was asked in Committee on Tuesday. It is a misleading question. The anti-social behaviour order is to be used in circumstances that are neither more nor less serious. The orders differ in conception, operation and affects from the criminal law. Essentially, the orders are to be used for criminal or sub-criminal activity to tackle serious, persistent, anti-social behaviour that affects a community, causing one or more persons harassment, alarm or distress. They are not intended for run-of-the-mill disputes between neighbours, petty intolerance, minor, one-off disorderly acts or the penalising of the merely eccentric. That is why it is the breach of an order that would be a criminal offence. The behaviour to be prohibited in an order should be serious enough to justify the available sanction. That is what the guidance says, and I should welcome the Committee's endorsement of that.

The hon. Member for Hertsmere (Mr. Clappison) asked in his intervention about sub-criminal activities. I hope that it is clear from what I have said that some acts might or might not be criminal a court would have to resolve that but if such acts formed part of a wider pattern of activity, they would not need to meet the criminal standard of proof. Those acts would be part of a pattern of anti-social behaviour that affected other individuals and families in the neighbourhood.

Mr. Clappison: In the list that the Minister provided today, and in his comments on Tuesday, he said that orders would be made in circumstances where there was a pattern of mixed criminal under existing law and non-criminal activity. Could be order be granted if all the behaviour was non criminal or subcriminal, and thus not covered by existing law? Would it be possible for an order to be made for a repeated, but non-criminal, act?

Mr. Michael: It would be theoretically possible; and, in a wide range of activities, those to which the hon. Gentleman referred might be easiest to prove. Such circumstances however would be unusual; the guidance shows that. It is possible to go to the extreme in definition and pose theoretical anomalies. That was true in legislation passed by the previous Government in for example, the definition of seriousness. When we discussed that we accepted that it was important to have a definition that was sufficiently wide, but to ensure that, through tests and a safety net, it did not cover silly examples in practice. Therefore, the circumstances that[Mr. Michael] the hon. Gentleman described are theoretically possible, but unlikely.

I deal now with two specific anxieties that were expressed on Tuesday. The first is discrimination. Hon. Members asked about the danger of orders being used to penalise those who are simply different. That must not happen, and orders must not be used in a discriminatory way. The guidance will make it clear that the police, local authorities and the courts must exercise extreme caution. That point was made on Second Reading, when we undertook to ensure that the guidance specifically emphasised that point of principle.

Individuals who should be protected against discrimination are also those who may benefit from the protection that an anti-social behaviour order might provide.

Mr. Edward Leigh (Gainsborough): I want to return to section 5 of the Public Order Act 1986. It uses precisely the same words as the the Bill about "harassment, alarm or distress".

I have had an opportunity to examine the Minister's guidance notes, especially paragraph 3.5, which deals with various examples. I am grateful to the Minister for attempting to give examples to the Committee. Does he accept that those examples, especially the intimidation of neighbours and abusive behaviour, could be covered by section 5 of the Public order Act? If so, the Minister seems to argue that, although section 5 could cover the sorts of behaviour we are considering, he wants to tackle repeated behaviour. We must define the position clearly.

Mr. Michael: I understand the hon. Gentleman's point. Within the range of activities that would be presented to the court as evidence for the need for an anti-social behaviour order, some would be caught by the Public Order Act. However, the comparison with Public Order Act offences is misleading: a Public Order Act offence is an offence. The order does not represent offence, nor is it a response to an offence. It is a civil order which seeks to prevent future behaviour. I am happy to accept what the hon. Gentleman says, but it does not offer any argument against the need for an order.

It is also worth making the same point that I was making about what has been described as sub-criminal activity. The behaviour may well be criminal, just as behaviour may involve a transgression of the Public Order Act, but it may not be possible to prove it to the standard required for a criminal conviction. There are a variety of reasons for that. One might be that the victim is too frightened to give evidence. That is a serious consideration which I am sure hon. Members would recognise. Clause 2 enables third-party witnesses to give evidence of the behaviour in circumstances in which they are not the victim. That means that protection can be provided for members of the public.

It should be borne in mind that we are not turning the subject of an order into a criminal; he is not guilty of an offence before the court but is merely required not to indulge in specific types of behaviour. It therefore provides a protection in circumstances where it is not possible to get a conviction on the basis of the criminal standard of proof. That is the essence of what we are trying to do in these clauses.

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