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.
Interpretation
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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