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6.15 p.m.
Lord Mishcon: Many Members of the Committee will have views upon this matter and they will be concerned about it. However, I think that the principle behind what we have been discussing so far is that we want to make the procedure as flexible as possible. We want to make it administratively sensible and therefore we have involved the police. But we have regard to the fact that the measure might easily have involved the jurisdiction of the county court or the High Court but for the arguments that were brought forward by the Minister a moment ago.
I think it would be singularly unfortunate if we were to lose the situation that would be created if these proceedings took place in a civil court with the usual provision of an injunction to which we have been referred in the past, and if these proceedings entered very much into the criminal area by having to be proved beyond reasonable doubt. As the Committee knows, the guiding principle in the civil court is the balance of probabilities. I should have thought that this was the appropriate basis for the orders to be made under this Bill.
Lord Renton: The noble Lord, Lord Mishcon, has raised a very important point. This is a quasi civil proceeding in a way, although it will take place before magistrates and arise out of a criminal possibility. I think that to insist on the very strict burden of proof that we have in criminal cases--which is what my noble friend Lord Henley is suggesting--may prevent what the noble Lord, Lord Mishcon, has rightly called an injunction from being made when, on the balance of probabilities, it looks as though it should be made. I hope that my noble friend will not feel that he should press this amendment, but it raises a very interesting and important point.
Lord Thomas of Gresford: The noble Lord, Lord Henley, raised an important matter which I think deals with the framework within which we should look at this amendment. A complaint to the magistrates' court under current rules would normally be served upon the respondent to that complaint. No doubt fresh rules will be promulgated for the new procedures under this Bill, but I should be grateful to hear from the Minister what is intended. Can there be ex parte hearings before the magistrates? If it is envisaged that there should be ex parte proceedings where the complaint is not served and where, by reason of a desire for speed, the defendant is completely unaware of the making of the order, a high degree of proof should be required for the order to be made. It would not be surrounded with the safeguards for ex parte injunctions in the county court or the High Court, in all probability. Accordingly, one would require a high degree of proof in that eventuality.
On the other hand, if the complaint is to be served upon the defendant and he chooses not to appear, and absents himself, and proof of service is given, a
prohibitory order--which the Minister says this is--could no doubt be made on a lesser standard of proof. I shall be grateful if the Minister will outline what he sees as the framework in the rules that would be applied under the Bill.
Viscount Bledisloe: I entirely agree with what was said by the noble Lord, Lord Mishcon. Perhaps I may ask the Minister one question. If the matter was dealt with in the county court, the complainant would be able to swear an affidavit and the lady's attendance could then be dispensed with. If she is this intimidated person who has been much spoken of, that will be highly attractive to her. Will that procedure be available in the magistrates' court? Alternatively, because the magistrates' court is more used to oral evidence, will it be essential for her to verify her complaint personally? If that is necessary, will that not give rise to the same problems; namely, she will say, "I am too frightened to come, and therefore it cannot happen"?
Lord Williams of Mostyn: I am most grateful for those questions. Before I deal with them, perhaps I may say this. While the noble and learned Lord the Solicitor-General dealt with earlier proposed amendments, I flicked my eye down to the definition of "local government area". The noble Earl, Lord Onslow, asked me whether the level of complainant authority could be as low as the parish council. I gave a shorthand reply by saying "district council". In fact it is,
- "a district or London borough, the City of London, the Isle of Wight and the Isles of Scilly; in relation to Wales, a county or county borough".
In respect of the burden of proof and the standard of proof, I understand the noble Lords' concerns. However, I believe that they are misplaced. An antisocial behaviour order is a serious matter but it is a civil matter. The criminal question does not arise until a breach is alleged. When the breach is alleged, of course the breach must be proved to the degree of sureness to which we are well accustomed in criminal matters. So one needs to look at these issues quite distinctly.
The noble Lord, Lord Henley, spoke of the responsibilities of the magistrates. Those responsibilities will be at least twofold. The magistrates will have to say to themselves, "Are we so convinced on the balance of probabilities that an order should be made?" That is the first important step. The second important step is what the terms of the order should be. The terms of the order must be such as are within the spirit and letter of the Bill. The noble Lord gave an example of someone who perhaps wishes to go to work across a particular area. There is nothing to stop him doing so if he is not harassing, alarming or distressing people. Quite often--I believe that it will figure in a later amendment--young people will need to go to their places of education. Nothing would stop them from doing so, provided that they do not behave in a grossly antisocial way, in the way that the order would have been cast.
I suggest that with his vast experience of these matters, my noble friend Lord Mishcon has put the matter right, as did the noble Lord, Lord Renton. This is a civil procedure and the magistrates would have to be guided by their clerk about the seriousness of the orders.
The noble Lord, Lord Thomas of Gresford, is right. Doubtless, an amendment of the magistrates' courts' rules is likely to be required. Even at present, as he observed, proceedings on complaint can take place in the absence of the defendant, but only if he has been proved to have been served with a summons. That is the sort of regime one would anticipate coming into effect when the new rules, if they require close scrutiny, would be put into effect.
There is a specific question as to whether or not complainants would have to attend. The complainants would not have to attend. Evidence can be given by the local authority witness or the police witness. So the vice to which the noble Viscount referred would be avoided.
The order stage is genuinely a civil process. There may well have been no actual offence; there is certainly no penalty; simply, I repeat again, the equivalent of an injunction.
The penalty for breach of an injunction may well itself be imprisonment. But to obtain an injunction one does not have to prove matters beyond reasonable doubt or so that the court is sure on a criminal standard. It is also necessary to bear in mind that the civil standard of proof, although described as a balance of probabilities, is not itself set in stone. I think that it was the noble and learned Lord, Lord Denning, who well said many years ago that in civil cases--and it is the commonplace of the burden of proof in civil cases such as defamation--the court always directs the jury, or itself where there is no jury, that the more serious the allegation the more important it is to have a high standard of proof. Therefore in civil cases it is axiomatic that it is not just 51 per cent., and judges and magistrates direct themselves accordingly. It is a flexible instrument. If the court has particular concerns, one would expect it to apply a higher test. I believe that it is a matter best left to the courts.
In this context of general anxiety about the safeguarding of the individual's interests, I have already mentioned Amendment No. 13 and shall revert to that in its appropriate place. We therefore feel that it is wrong in principle to specify a criminal standard. They are civil orders. There is no risk of imprisonment to the defendant. He does not even have a criminal record.
Having answered the questions, I hope, reasonably fully, I therefore invite the noble Lord to withdraw his amendment.
The Earl of Onslow: Perhaps I may say one thing in support of the noble Lord. We want to try to keep as many people as possible away from criminal proceedings, especially when they are young. Once they are enmeshed it is extremely hard to get them out. This system can become a method of warning, consequentially stopping people going down the ghastly line of juvenile courts, imprisonment, and so on. If it has that effect, it will be very good.
If we put standards of criminal proof into the provision, I suspect that it will make the issue more criminal than civil. That is an important point to bear in mind.
Viscount Bledisloe: The Minister has not fully answered my question. I understand that if some lady complains that children have been making a row outside her house, knocking on her window all night, and so on, a representative of the local authority can go to her house, experience the incident, and give evidence of that event. He cannot say that it has been happening for the past six months night after night. Alternatively, the children may be wise enough to know that the representative is there and may avoid the situation. But if the evidence of the lady herself is necessary, will it be essential for her to attend, or may she either give evidence or make a statement to the local authority which the local authority reads out or in some way adopts?
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