Serious Organised Crime and Police Bill

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Mr. Jonathan Djanogly (Huntingdon) (Con): Is the Minister aware that at least one of the ASBOs to which she refers has been breached in Cambridgeshire and that the police decided not to prosecute? If she was not aware of that, will she investigate why it happened?

Caroline Flint: I am happy to look into that incident and the circumstances surrounding it, but my point remains that ASBOs can be used very appropriately to tackle certain individuals. As we know, communities that have been affected by the sort of activity that affected Darley Oaks are seeking injunctions and ASBOs to protect the wider community, which relates to the point made by the hon. Member for Somerton and Frome.

In such circumstances, the penalties that we have outlined are appropriate for the offences that we are discussing. As Liberal Democrat Members have said, we should be mindful of the fact that we are pushing at boundaries in trying to find a balance between dealing with people who we fear are engaged in totally unacceptable activity and ensuring that we protect people's right to protest, which should not be restricted by the Bill. The offences we propose would deal with someone whose very presence, regardless of any conduct, is a threat. So the offences are strong and powerful, but should at the same time carry proportionate penalties. People engaged in other activities should, of course, be arrested and charged for those offences, and the higher offences would apply if they were found guilty of those offences in court.

We must raise awareness of the effect on victims of animal rights activity through the national forum, which involves the Attorney-General, the Minister responsible for such matters in the Department of Trade and Industry, Ministers from the Department for Constitutional Affairs, officials, police and others doing relevant work, and myself. We meet regularly to oversee current activity and what the police are doing and to build better awareness. The Crown Prosecution Service has developed guidance on taking witness impact statements in animal rights extremist cases to maximise the prospects of obtaining appropriate disposals and orders such as ASBOs. The Court Service is educating magistrates and the courts about the methods and tactics of animal rights extremists, using guidance and best practice material so that the judiciary is aware of the aggravating nature of the activity when they consider relevant cases.

As for amendment No. 224, I understand the wish of the hon. Member for Sutton Coldfield (Mr. Mitchell) to give police officers more flexibility in exercising their power of arrest for the offence of harassment outside a person's home. I think that Conservative thinking is in line with ours on that issue, but the amendment is a little premature, because we
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are amending arrest powers more broadly elsewhere in the Bill. The arrest powers specified in clause 117(2) will cease to have effect on the commencement of clause 101. As hon. Members know, that clause codifies the powers of arrest available to a constable under the Police and Criminal Evidence Act 1984. The effect of the wider changes will mean that the power to arrest without warrant will be exercised by any constable and not restricted to a constable in uniform. However, in the transition period before the changes come into effect, we wish to retain consistency between the arrest power for the new offence of harassment outside a person's home and the police's current power of arrest for non-compliance with a direction under section 42, which is currently exercised by a constable in uniform.

Clause 118 strengthens the police powers to direct protestors to stay away from a person's home where harassment, alarm or distress is caused to the resident. The clause amends the existing direction power in section 42 of the Criminal Justice and Police Act 2001 to allow a constable to direct a protestor to leave the vicinity of the home and not to return within such period as the constable may specify, up to a maximum of three months. If the protestor returns to the vicinity of the premises within the specified period for the purposes of representing to or persuading the resident that he should not do something that he is entitled to do, or that he should do something that he is not obliged to do, he will commit an offence. The penalty for failing to comply with the direction or for returning to the area within the specified period will be imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both. That will rise to a period of 51 weeks or a fine not exceeding level 4 on the standard scale when the relevant provisions of the Criminal Justice Act 2003 come into force. Those penalties are consistent with the penalties for failing to comply with a direction from the police in other contexts.

The hon. Member for Somerton and Frome commented about the effect of the provision on people in workplaces. I understand that that is covered by other legislation. Section 14 of the Public Order Act 1986 gives the police powers to impose conditions on assemblies of as few as two people. A condition could include the direction to move away.

Mr. David Heath (Somerton and Frome) (LD): That also covers the situation outside someone's home. If it is necessary to strengthen the law that applies outside the home, one would think that it was also necessary to strengthen the law that applies outside the place of work.

Caroline Flint: The circumstances that we are dealing with in relation to someone's home give rise to issues such as vulnerability in a community or neighbourhood. I will double check, but the measure is about a gap that we have identified and we do not believe that there are the same concerns about workplaces as about people's private home. We want to plug that gap.

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In any prosecution for a breach of a direction, the police will be able to rely on direct evidence from the householder that the person returned to the scene, or on evidence such as CCTV footage. Statistics provided by Staffordshire police, in whose area the Darley Oaks farm is situated, show that of 97 directions made in the period from July 2003 to mid-December 2004, 80 were directions to leave the vicinity. Clause 118 will give the police discretion to decide whether a person who is directed to leave should additionally be required not to return to the vicinity for a specified period. Giving that power to the police will deter the same protesters from returning to the scene again and again to protest in a way that causes harassment, alarm or distress to residents.

Amendments Nos. 101 and 254 place an unnecessary hurdle in the way of the police in their exercise of the direction power, which may include an additional requirement not to return to the vicinity. That is related to appeal mechanisms. The amendments would create an anomaly in relation to other police direction powers that have no appeal mechanism. For example, the police have the power to direct protesters to leave land where they reasonably believe that a person is committing, has committed, or intends to commit the offence of aggravated trespass on land. If, having left the land, the person again enters as a trespasser within a period of three months, he commits an offence. More significantly, that the amendment would render the power to direct a person away and not to return unworkable. I have no need to remind hon. Members how canny that particular group of people are when it comes to exploiting the law.

Safeguards are built into section 42 of the 2001 Act before a police officer can give a direction. A constable may give a direction to any person if that person is present outside or in the vicinity of any premises that are used by an individual as his dwelling, if the constable has reasonable grounds to believe that a person

    ''is present there for the purpose . . . of representing to the resident or another individual . . . or of persuading the resident or such another individual—

    (i) that he should not do something that he is entitled or required to do; or

    (ii) that he should do something that he is not under any obligation to do''

and the constable also believes on reasonable grounds that the presence of the person amounts to or is likely to result in the harassment of the resident or is likely to cause alarm or distress to the resident. Those are the steps that have to be gone through before a constable can issue a direction, and rightly so. We are not seeking to give the police the power to ban all protests outside homes or to impose directions indiscriminately. I believe that clause 118 would clarify a grey area. When regular protests are taking place outside someone's home, it is not unreasonable for the police to have an additional ability to tell someone to leave the vicinity and not come back for a certain number days or weeks, or for three months at most.

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It should be remembered that the issuing of a direction by a constable could be anything from a direction to stand in a particular place, to remove a banner, or to stop drumming. In more serious circumstances, a constable may direct a person away from the vicinity of a person's home and in the most serious cases they may direct a person away and require them not to return for a period of up to three months. Clause 118 simply gives the police an additional power and, as I have said, the maximum period that they will be required to stay away is three months.

Dr. Harris: I hesitate to rise to discuss this amendment, which was tabled by my hon. Friend the Member for Somerton and Frome. However, I am a little confused by what the Minister initially said about the powers in amendment No. 101 or the equivalent amendment tabled by the Conservatives meaning that the clause would be unworkable. Let us say that a constable said, ''Go away and do not come back for three months''. Neither those who have tabled the amendments nor I would suggest that direction should not come into force until it was confirmed by a magistrate; we simply propose that it should be challengeable later during the ban. I do not see how that would stop the operational effectiveness of the police direction.

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Prepared 20 January 2005