Criminal Justice and Immigration Bill

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New Clause 55

Anti-social behaviour orders: reporting restrictions
‘(1) Omit sections 1(10D), 1(10E) (anti-social behaviour orders) and 1C(9C) (orders on conviction in criminal proceedings) of the Crime and Disorder Act 1998 (c.37).
(2) In section 1C(9) of that Act (orders about anti-social behaviour on conviction in criminal proceedings) omit “(10D), (10E)”.
(3) After section 49(2)(d) of the Children and Young Persons Act 1933 (c.12) (restrictions on reports of proceedings in which children or young persons are concerned) insert—
“(e) any proceedings under the Crime and Disorder Act 1998.”.’.—[Mr. Heath.]
Brought up, and read the First time.
Mr. Heath: I beg to move, That the clause be read a Second time.
The Chairman: With this it will be convenient to discuss new clause 56—Anti-social behaviour orders
‘(1) Section 1 of the Crime and Disorder Act 1998 (c. 37) (prevention of crime and disorder) is amended as follows.
(2) In subsection (7) at the end insert “or in the case of persons under 18 not less than three months”.
(3) In subsection (10) after “if without reasonable excuse a person” insert “over the age of 18 years”.
(4) In subsection (10) at the end insert “or
(c) in the case of a person below the age of 18 years, a reprimand, warning, youth conditional warning or any sentence of the court commensurate with the seriousness of the offence other than imprisonment,”.
(5) In subsection (11) after “Where a person” insert “over the age of 18 years”.’.
Mr. Heath: I promise that this will be the last group that I speak to.
The two new clauses deal with antisocial behaviour orders and their application to young people. We have been reminded on several occasions that it was not the original intention for ASBOs, but they have become principally a disposal for young people rather than adults, which is perhaps perverse. New clause 55 deals with something that I do not expect Ministers to agree with me about, because they have disagreed on the last two occasions that we have debated the matter—in the context of the Anti-Social Behaviour Act 2003 and the Serious Organised Crime and Police Act 2005. However, that will not stop me from raising the issue again.
In the case of criminal offences, we have a reporting restriction for children. It has been there for 70 years, it is an important part of our criminal justice system, but yet it does not apply to ASBOs, either when they are made, or when they are breached. These children, when brought before a court, can have their faces spread all over every newspaper and even on a notice board in a supermarket. Yet if they commit a more serious crime and are given a criminal sentence ab initio, that will not happen. It seems perverse that we deal with such matters in different ways, and a variety of people have brought attention to the subject.
I do not expect the Committee to be hugely swayed by the opinion of Alvaro Gil-Robles, the Human Rights Commissioner of the Council of Europe, although he is an estimable gentleman and a colleague of mine on the Parliamentary Assembly of the Organisation for Security and Co-operation in Europe. He specifically raised the issue, saying that it is,
“entirely disproportionate to aggressively inform members of the community who have no knowledge of the offending behaviour, and who are not affected by it, of the application of ASBOs. It seems to me that they have no business and no need to know.”
That is his view, and it is perfectly proper for the Government and the Committee to take a different view. However, I think that it is disproportionate and that it is in stark distinction to the way that we deal with real criminal offences, as opposed to those that fall below the criminal standard of proof. It seems extraordinary that we make that division in the case of children. In the case of adults, I have no problem. If adults commit antisocial behaviour, naming and shaming them is all part of the process, but I am not sure that that is the right way for civilised society to deal with young people and children as young as 10.
New clause 56 deals with the period of an ASBO, and seeks to extend the discretion of the court when dealing with a person aged under 18, so that the minimum period can be reduced to three months. That would enable a short, objective lesson in the form of an ASBO to be given to a child, without it necessarily extending to the two-year minimum period. That, too, seems a sensible discretion to leave the court when it deals with a very young offender—I suppose that we call them offenders when we are talking about ASBOs. It is a moot point whether they are offenders or potential offenders when such a civil remedy is applied. In any case, the courts should have the discretion to do what they see fit in the case of a young person, and a three-month minimum period for the order would be appropriate.
The second part of the new clause deals with what happens in the event of a breach. Again, we return to the matter of custody. Is that really the answer for a breach of an ASBO if it has not been established as necessary for the protection of the public from harm? I doubt it, and if a young person is in breach of an ASBO, better and more appropriate disposals should be available to the court and used rather than sending a young person into custody, where we know what will happen—we have just discussed it. They go in, come out and commit an offence. That is not a sensible way to deal with someone who persistently causes problems through antisocial behaviour.
I am not arguing against ASBOs; as the Under-Secretary of State for the Home Department knows, we have always been open to the view that they can work under certain circumstances. Right from the start, we did not oppose them. However, the way in which they are used has always been open to question, and we have always wanted to engage in discussion with the Government on how they can best be used.
Mr. Coaker: I have a couple of brief comments on the new clauses. The context of the debates that we have had in the past hour or so is that none of us wants to see our young people in prison for the sad reasons that we have heard about. We want them to be diverted from antisocial and criminal behaviour. We must consider how we can effectively do that and what to do to ensure that we achieve it. If we really mean that, every single one of us in the room has a lot of work to do.
Out there, diversion and community punishment, and working with young people who commit offences instead of imprisoning them—restorative justice and so on—is a big matter for argument and a debate that needs to be won. The terms of trade are changing, and the debates that we have had in the Committee and elsewhere in Parliament show that parliamentary opinion, and perhaps some parts of public opinion to an extent, are moving. The work of my two ministerial colleagues in the Ministry of Justice has helped to shape that debate and move it forward.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): My hon. Friend is absolutely correct, and it is good to see some movement in the direction of saying that laws ought to prevent what they forbid, which is precisely what the ASBO is designed to do. It is a measure of prevention, not punishment.
6.30 pm
Mr. Coaker: That is an excellent point, and I thank my right hon. Friend for it. That is the whole purpose of the civil order—not to punish, but to prevent.
After that brief introduction, I shall respond briefly to the comments made by the hon. Member for Somerton and Frome. There is almost a contradiction between what I said a moment ago and what I am about to say, in that I do believe that the courts need discretion in some of the cases referred to by the hon. Gentleman. For example, in respect of reporting restrictions when antisocial behaviour orders are given, it is not automatic that the court should publicise the names—it does not have to name and shame. The court has the power to say, “We do not think it appropriate in these circumstances for the name of that young person to be given, for the following reasons.” The courts would no doubt take factors such as vulnerability into account. However, in some circumstances, for the prevention of harm in communities, including the prevention of harm to other young people—young people are, by and large, the victims of crime—naming may sometimes be necessary. I ask the hon. Gentleman to reflect on that point.
On reducing the minimum duration of antisocial behaviour orders from two years to three months, the Committee will know that the Government have moved some way toward the sorts of issues that the hon. Gentleman raised. The Bill now allows for an annual review. Although it does not go fully to the three months’ duration wished for, it has started to move towards it. Where there was an expectation that a review would be held, we have made an annual review a statutory requirement—a statutory duty. Again, progress has been made.
One of the most difficult questions, particularly in the context of today’s debate, is that of not having the option of custody for breach of ASBOs. I do not particularly want young people to be put in prison, nor do I want them to be imprisoned for breach of an ASBO, but I believe that that must be an option. Let me cite a study that shows how difficult the subject can be. The Youth Justice Board conducted a study in December 2004—admittedly, a couple of years ago—in which it considered 43 young people who had received custody for breach of ASBOs. Between them, those young people had committed a total of 1,779 offences. Ministers receive briefings all the time, but when I read that I was astonished and shocked.
When I say that custody is available as a sanction for breach of an ASBO, hon. Members often say, “Yes, but there has to be a lot of other offences before it happens.” I was shocked at that figure. It suggests that many of the interventions that my hon. Friends are trying to introduce earlier in the process need to be considered in order to discover what works. However, there is a problem: what do you do with people who have committed so many offences, when every other alternative has no doubt been tried by the police, the youth offending teams and others? It seems to me that, in those circumstances, we are left with no choice.
The question then is what sort of environment are those young people being sent to if they breach their ASBO and are sent into custody? Again, the debate has moved on; we are moving away from saying that they should just be locked up and given bread and water. There is a growing mature opinion says that if people— particularly the young—breach their ASBOs, there must be a better option than the traditional type of environment. Although it might have to be a secure environment, perhaps it could have a better rehabilitative element that would command public confidence.
Although I understand the principles and substance of the points set out by the hon. Member for Somerton and Frome, I believe that the custody option should be available as the last resort for those who breach an ASBO. We have tried to move some way towards a minimum term in the annual review that we have introduced in this Bill. With those comments, will the hon. Gentleman consider withdrawing his new clauses?
Mr. Heath: I am grateful to the Minister for sustaining the quality of debate right to the end of our proceedings. This is almost a coda to what we started a long time ago. I hope that he and his colleagues are right about the alternative structures that will be put in place if the Bill is enacted and that they will be effective in doing what we as a Committee all want them to do.
I do not agree with the Government about reporting restrictions, but the Minister knows that. I accept what he said about the minimum period. However, I do not think that people should be given a custodial sentence for breach of ASBOs. They should be given a custodial sentence if that is necessary for the protection of the public as a result of the offences that they have committed. It is a subtle but real difference. Again, we must agree to differ on that. Having said that, I am grateful to the Minister for responding to the points that I have made and I seek leave to withdraw the new clause.
Motion and clause, by leave, withdrawn.

New Schedule 1

‘Special rules relating to providers of information society services
Domestic service providers: extension of liability
1 (1) This paragraph applies where a service provider is established in England and Wales or Northern Ireland (a “domestic service provider”).
(2) Section 64(1) applies to a domestic service provider who—
(a) is in possession of an extreme pornographic image in an EEA state other than the United Kingdom, and
(b) is in possession of it there in the course of providing information society services,
as well as to persons (of any description) who are in possession of such images in England and Wales or Northern Ireland.
(3) In the case of an offence under section 64, as it applies to a domestic service provider by virtue of sub-paragraph (2)—
(a) proceedings for the offence may be taken at any place in England and Wales or Northern Ireland, and
(b) the offence may for all incidental purposes be treated as having been committed at any such place.
(4) Nothing in this paragraph is to be read as affecting the operation of any of paragraphs 3 to 5.
Non-UK service providers: restriction on institution of proceedings
2 (1) This paragraph applies where a service provider is established in an EEA state other than the United Kingdom (a “non-UK service provider”).
(2) Proceedings for an offence under section 64 may not be instituted against a non-UK service provider in respect of anything done in the course of the provision of information society services unless the derogation condition is satisfied.
(3) The derogation condition is satisfied where the institution of proceedings—
(a) is necessary for the purposes of the public interest objective;
(b) relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective; and
(c) is proportionate to that objective.
(4) “The public interest objective” means the pursuit of public policy.
Exceptions for mere conduits
3 (1) A service provider is not capable of being guilty of an offence under section 64 in respect of anything done in the course of providing so much of an information society service as consists in—
(a) the provision of access to a communication network, or
(b) the transmission in a communication network of information provided by a recipient of the service,
if the condition in sub-paragraph (2) is satisfied.
(2) The condition is that the service provider does not—
(a) initiate the transmission,
(b) select the recipient of the transmission, or
(c) select or modify the information contained in the transmission.
(3) For the purposes of sub-paragraph (1)—
(a) the provision of access to a communication network, and
(b) the transmission of information in a communication network,
includes the automatic, intermediate and transient storage of the information transmitted so far as the storage is solely for the purpose of carrying out the transmission in the network.
(4) Sub-paragraph (3) does not apply if the information is stored for longer than is reasonably necessary for the transmission.
Exception for caching
4 (1) This paragraph applies where an information society service consists in the transmission in a communication network of information provided by a recipient of the service.
(2) The service provider is not capable of being guilty of an offence under section 64 in respect of the automatic, intermediate and temporary storage of information so provided, if—
(a) the storage of the information is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request, and
(b) the condition in sub-paragraph (3) is satisfied.
(3) The condition is that the service provider—
(a) does not modify the information,
(b) complies with any conditions attached to having access to the information, and
(c) (where sub-paragraph (4) applies) expeditiously removes the information or disables access to it.
(4) This sub-paragraph applies if the service provider obtains actual knowledge that—
(a) the information at the initial source of the transmission has been removed from the network,
(b) access to it has been disabled, or
(c) a court or administrative authority has ordered the removal from the network of, or the disablement of access to, the information.
Exception for hosting
5 (1) A service provider is not capable of being guilty of an offence under section 64 in respect of anything done in the course of providing so much of an information society service as consists in the storage of information provided by a recipient of the service, if—
(a) the service provider had no actual knowledge when the information was provided that it contained offending material, or
(b) on obtaining actual knowledge that the information contained offending material, the service provider expeditiously removed the information or disabled access to it.
(2) “Offending material” means material the possession of which constitutes an offence under section 64.
(3) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.
6 (1) This paragraph applies for the purposes of this Schedule.
(2) “Extreme pornographic image” has the same meaning as in section 64.
(3) “Information society services”—
(a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations), and
(b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”;
and “the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).
(4) “Recipient”, in relation to a service, means any person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.
(5) “Service provider” means a person providing an information society service.
(6) For the purpose of construing references in this Schedule to a service provider who is established in a part of the United Kingdom or in some other EEA state—
(a) a service provider is established in a particular part of the United Kingdom, or in a particular EEA state, if the service provider—
(i) effectively pursues an economic activity using a fixed establishment in that part of the United Kingdom, or that EEA state, for an indefinite period, and
(ii) is a national of an EEA state or a company or firm mentioned in Article 48 of the EEC Treaty;
(b) the presence or use in a particular place of equipment or other technical means of providing an information society service does not, of itself, constitute the establishment of a service provider;
(c) where it cannot be determined from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider’s activities relating to that service.’.—[Mr. Coaker.]
Brought up, read the First and Second time, and added to the Bill.
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