|Crime and Disorder Bill [Lords]
Mr. Clappison: The Minister has just said that the defendant can challenge the evidence. Does that mean that he can cross-examine any witness?
Mr. Michael: I shall be coming on to that. I am trying to deal with some of the stray points that I might otherwise overlook.
The question of adjournment to allow the defendant to be present has been raised by a number of hon. Members. However, speed is needed to stop the behaviour that is being complained about. In most circumstances it will not have come out of the blue. A number of attempts will have been made to use different prohibitions, the threat of eviction or prosecution, or efforts will have been made to get the different parties together to resolve issues without recourse to an application for an anti-social behaviour order.
The presumption should be to go ahead even though it is clear in part V of the guidance notes that the possibility of an adjournment is there if it is reasonable to take that course of action. The person who receives a summons to face the possibility of an order being made should understand that.
There is otherwise a danger that he could think that it was not likely to go ahead the first time and not bother to turn up. That could lead to an intolerable delay and a continuation of the very behaviour that we wish to prohibit. Adjournments should be allowed only exceptionally; the defendant's absence will normally constitute a reason for an adjournment only on exceptional grounds.
The hon. Member for Woking also asked whether proceedings would be in public. They would be in public except in the case of juveniles when they could be in private, but that would be at the discretion of the courts. In general it should be left to the common sense of the court. The hon. Gentleman made an interesting point about the overlap of local authority areas. I have given the matter some thought. In cases like inner and outer London or Salford and Manchester, the definition of a local authority or commission boundary may be rather more arbitrary than one would like.
There are complications whichever way one approaches the matter as different commission areas and different local authority areas can be involved. In general the view has been taken that if an application involves different areas separate applications might be needed to prohibit the same type of behaviour in both areas. The issue cannot be concluded completely tidily and I am continuing to give it some thought. The present drafting of the Bill looks to us the tidiest way of dealing with the matter.
I turn now to the more specific elements in the amendment. We considered with some care whether the county court, the magistrates court or both should be used for these orders. There are five main reasons for our conclusion. First, many applications will be made by the police. They are more familiar with the magistrates courts process, which makes matters simpler. Secondly, it allows the courts to enforce their own orders through the criminal offence mechanisms in the Bill. That would not be possible for county courts except through contempt of court. Thirdly, we believe that only one court should hear applications. More than one could lead to confusion and would make the establishment of a consistent approach more difficult. We set out, however, as one option to be considered in our consultations, that of applications being made in either the magistrates court or the county court.
Fourthly, magistrates courts are generally close to the local community than county courts and their use supports the essentially local nature of the orders. Fifthly--I consider this to be conclusive--after we issued a consultation document on the orders last September, we received various comments, many of which were constructive and helpful. A summary of those responses was placed in the Library on 19 December. The responses strongly supported magistrates courts as the venue for dealing with the orders, and we should not ignore that advice. Several arguments pointed in that direction, but it was certainly the overwhelming view of respondents. I hope that I have dealt satisfactorily with amendment No. 294.
Amendment No. 34 is unnecessary and complicated. The hon. Member for Hertsmere raised some important points and I am happy to reassure him about them. The defendant will have the opportunity for a full hearing and to question witnesses. That is a normal part of the civil process and it applies to the orders. The hon. Gentleman was right--it is made clear in the guidance--that the defendant must be made fully aware of the serious nature of the order when a summons to appear is issued and of the need for him to attend the hearing.
A defendant would be able to question witnesses. Indeed, it is difficult to envisage circumstances when a court would not consider it unfair not to allow that, even when witnesses might be worried about their position. That is a better solution than that proposed by the hon. Gentleman and it makes special and elaborate witness protection measures for the orders unnecessary.
It is not possible to compel defendants to attend, so orders on an ex parte basis are possible. There is no need to restrict their length if a defendant refuses to attend. Indeed, that might lead to worse cases being treated more leniently. I reassure members of the Committee that the existing rules of court for magistrates courts will apply. We are considering whether any specific rules are needed to cover such detailed aspects as are outlined in the amendment. The detailed guidance will make clear the rights of the defendant and the summons procedure, for example, and that is the appropriate place for such detailed specifications.
I reject the suggestion that we should increase the burden of proof from the balance of probabilities that is normal in a civil case to the criminal standard of beyond reasonable doubt, and amendments Nos. 7 and 87 would have that effect. An anti-social behaviour order is a serious matter and it is backed up by the criminal law only if there is a breach. To treat the anti-social behaviour order as if it were a criminal matter throughout would be to negate the purpose of the order and to abandon those whom we seek to protect through the introduction of such orders.
There are two main reasons why it would do that. First, the initial stage--the application--is genuinely a civil process. There is certainly no penalty, merely the equivalent of an injunction to prevent certain behaviour. It would be odd to make such a procedure subject to the criminal standard of proof. Under current arrangements, the penalty for a breach of an injunction may be imprisonment, following proceedings for contempt of court. The procedure and the balance that we suggest are not entirely innovative.
Mr. Malins: Such imprisonment is civil rather than criminal.
Mr. Michael: Imprisonment feel like imprisonment, whatever the source from which it arises.
Breaches of an anti-social behaviour order can attract imprisonment and it does not break new ground by creating a jeopardy arising from a civil order. The consequences flowing from a criminal offence of breach of an order is a difference of degree from breaches of normal injunctions, not a difference in kind.
The second reason is the nature of the civil standard of proof. It is wrong to think of it as one absolute standard of 51 per cent. It is a flexible instrument, which courts can interpret in response to the circumstances of individual cases. Indeed, they do that as a matter of course, and we would expect them to do so if there was particular concern over an application and they wanted to apply a higher test--but that is a matter best left to the courts.
The Bill provides the defence that the conduct was ``reasonable in the circumstances''; such an amendment was debated in the House of Lords. If the individual establishes such a defence, an order cannot be made. We included that defence in another place to answer the concerns that several hon. Members have voiced today. Indeed, I assure those who have not read the reports of the debates in another place that that particular aspect was the subject of a long and learned debate, and that the Government were able to satisfy the legitimate concerns expressed.
In conclusion, it would be totally wrong to apply a criminal standard of proof. The orders are civil orders, which carry none of the risk to a defendant entailed in criminal proceedings, such as imprisonment or a criminal record. They do not merit the imposition of a disproportionate standard of proof.
I understand why amendment No. 10 was tabled, but I assure the Committee that it is unnecessary. Although applications for orders against juveniles will be heard in magistrates courts, the individual's interests will not be neglected; the protections are there.
Section 44 of the Children and Young Persons Act 1933 applies to children and young persons in summary proceedings in magistrates courts. Under that section, the court is required to have regard to the welfare of the child or young person. In addition, under section 34A of the 1933 Act, a court may require a parent or guardian to attend the court. That is likely to apply if the parents are not subject to parallel proceedings for anti-social behaviour order.
Mr. Clappison: For those of us who do not have the provisions of section 44 of the Children and Young Persons Act 1933 at our fingertips, will the Minsiter explain whether it requires or enables a court to ask for a report on the family circumstances of a young defendant to be prepared by an independent person, such as a probation officer?
Mr. Michael: I shall take advice on that, but I believe that the court can choose to seek such advice if it feels that it is needed. I shall certainly check, but in my experience, magistrates can be quite creative in making sure that they have whatever information is necessary. I should mention also that, under clauses 9 and 1, the court will have discretion as to whether to impose parenting orders for those under the age of 16.
A number of specific points were raised on amendment No. 12. I have already pointed out that under the Protection from Harassment Act 1997, a defendant has to establish that in the particular circumstances, the pursuit of the course of conduct was reasonable. Again, there is precedent for our approach in what the House had already decided. The requirement that it should be reasonable is consistent with the general law on magistrates courts.
Under section 101 of the Magistrates' Courts Act 1980, where the defence relies on any ``proviso, excuse or qualification'', the burden of proof lies on the defendant. Placing the burden on the individual to show that his behaviour was reasonable is nothing new. That is because it would be in his knowledge rather than that of the prosecutor whether he had an excuse. It is for the prosecution to show that the behaviour complained of has the effect that is described; it is for the individual to show that, despite that effect, it was reasonable in the circumstances. That is surely a reasonable protection. Again, I remind the Committee that legal assistance will be available to defendants. Surely, if a defendant feels that his actions were reasonable, it is right that he should show that to the court. Conversely, the court cannot be expected to know when behaviour is reasonable, which could result in orders being granted inappropriately. The court must be satisified that the case has been made to justify the order.
Amendment No. 31 refers to the dangers of discrimination. It would add nothing to the obligations in article 14 of the European convention on human rights. I remind the Committee that the European convention will be incorporated into UK law and will be relevant to the courts in making decisions. Accepting the amendment would cast doubt on other powers to grant an order that was not restricted by an anti-discrimination clause.
I support what the hon. Member for Hertsmere seeks in his amendment, but I hope that I can reassure him and other members of the Committee that it is not appropriate. We are talking about what should be included in the civil order. It can prevent behaviour only to the extent that is necessary to protect the public from further anti-social acts by a defendent. We are not talking about community sentences or penalties, and I draw attention to the draft guidance that I have circulated to members of the Committee. The order is not intended to ban normal behaviour, merely anti-social behaviour. It should not stop an individual going from A to B; it covers the behaviour that might take place en route. We do not accept discrimination on race or any other grounds. That is a basic tenet of all our legislation and does not need specific endorsement. To do so could call other legislation into question. The guidance leaves the matter in no doubt. The fact that it has been raised by the hon. Member for Hertsmere and placed on the record will be helpful in reinforcing that point.
With regard to amendment No. 291, I remind the hon. Member for Hallam that in virtually all cases when an application is made for an anti-social behaviour order, attempts will have been made to persuade individuals to co-operate. We are likely, therefore, to be dealing with unco-operative individuals. Certainly, they are the target of the anti-social behaviour order. I sympathise with the hon. Member for Hallam, but his amendment is unnecessary. Detailed procedural provision for application made by way of complaint is already made in part II of the Magistrates' Courts Act 1980 and rules of court, which deal with the powers of the court in the event of non-appearance by the defendant and make effectively the same provision as that proposed by the hon. Gentleman. I said earlier that we shall consider whether a change of reinforcement is needed in the rules. It is difficult to be completely precise because we are trying to get the balance right between two dangers.
Amendment No. 32 would insert the words
If a defendant can show that his actions constitute
that would demonstrate that his behaviour was reasonable in the circumstances, which could be his line of defence. If, however, his quiet enjoyment somehow causes harassment, alarm or distress to others of a different household, and both the police and local authority believe that an order should be sought, surely it is right that the provision should be used and the reasonableness of the behaviour tested in the court. The defence already provided should be sufficient to meet the need; to add to it would be to dilute the overall strength of the provision and to call into question what it may or may not cover. We could construct a list of exceptions, but it would never be comprehensive. The amendment presents dangers, and the defence for which we have allowed deals better with the matter.
The same argument applies to amendment No. 84, which is unacceptable because it would place an obstacle in the way of any application for an order. There is an objective test: whether the behaviour that leads to the complaint causes ``harassment, alarm or distress''. The amendment would impose a test of intention, but it is the behaviour and the distress that is relevant when making an order.
I hope that I have managed to deal with all of the major points raised in the debate, although perhaps I have not dealt with the length of the period for which an order could apply--
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