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Lord Hylton: The noble Lord, Lord Thomas of Gresford, made out a formidable case for his amendment. I wish to support it on the grounds that it will tend to limit the number of people sentenced to prison and the length of time that they are likely to spend there and that those perhaps few--they may turn out to be a small number--who are sent to prison will be subject to a more liberal and humane regime.

Lord Northbourne: I am not at all happy about the Bill as drafted in this context and support the noble Lord, Lord Thomas. It seems to me that the Bill goes completely over the top with a potential penalty of five years' imprisonment for what may be just be a bit of bad behaviour by an adolescent. For heaven's sake, all of us were young once. Surely we remember the time when we thought it was rather funny to do something which cheeked older people and perhaps to do it again when we were told not to do it? Surely there were times when some of us got a little drunk, or even perhaps quite a lot drunk? Whether we accept Amendment No. 21,

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Amendment No. 22 or some other amendment, I believe that the Bill as drafted is not sensible and will be profoundly unfair.

Lord Monson: I added my name to Amendment No. 22 because, like the noble Lord, Lord Thomas of Gresford, and my noble friends on these Benches, I believe that a maximum of five years' imprisonment is quite excessive for an offence of this nature.

Whenever one casts doubt upon the desirability of even higher maximum sentences, the Home Office Minister of the day invariably says, as I dare say the noble Lord, Lord Williams, will say tonight, "Yes, but do remember that the maximum sentence is only a maximum; the courts are under no obligation ever to impose it in practice". That may well be so, but I submit that a maximum sentence which looks preposterously high to the man in the street will bring the law into disrepute and will therefore be counter-productive.

Lord Henley: My name is down to one of these amendments and it might be helpful if I say a word or two. I do not intend to follow the noble Lord, Lord Thomas of Gresford, on the subject of sentences. I am sure that the Government are well able to defend their own policies and to justify the inclusion of a maximum sentence of five years for offences which I dare say on some occasions could be very serious indeed.

The amendment I wish to speak about is Amendment No. 24, which has been grouped with Amendments Nos. 21, 22 and 37. The noble Lord, Lord Goodhart, has added his name to that amendment. I put it down merely as a probing amendment because I wanted to know, first, what subsection (10) was about. I think I have worked that out now: it will not be available to the court to make an order of conditional discharge. Secondly, I should like to know why that should be the case and why the Government feel that that discretion should not be open to the court. Just as there will be occasions when the offence is of the utmost seriousness and therefore the court may wish to make use of the maximum powers available, there will be occasions when such a decision would not be right and where the minimum would be required. For that reason I believe there may be occasions when an order for conditional discharge could be made. I look forward with interest to hearing what the Minister has to say.

9 p.m.

Lord Goodhart: My noble friend Lord Thomas of Gresford spoke eloquently and powerfully on Amendment No. 22, and at this time of the night I do not wish to add anything to what he said except to say that I am in complete support of everything he said, both on the question of substituting the punishment for contempt rather than a gaol sentence and also on the length of the sentence if a gaol sentence was to be imposed.

I should like to add a few words on Amendments Nos. 24 and 37 which have perhaps been wrongly grouped with Amendment No. 22. They raise a different point, as the noble Lord, Lord Henley, said. They are

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more than simply probing amendments. They relate to the question of why the power of the court to punish a breach of an order by a conditional discharge has been excluded. The same point arises in the case of the anti-social behaviour order and in the sex offender order in Clause 2(9) which is covered by Amendment No. 37.

What is the point of excluding the power to grant a conditional discharge? It is a useful weapon in any court's armoury. It leaves the possibility of having a sentence hanging over the offender's head if a further offence--not necessarily an offence of the same kind--is committed. It may well be that there are cases where that is the appropriate order. As matters now stand, if the possibility of a conditional discharge is excluded and the courts find themselves in a situation where there has been a breach of the order which they regard as trivial, they can still deal with that. They can indicate that they regard it as trivial by imposing a nominal fine of £5 or £10 or something like that. Why should small fines be allowed but, at the same time, the court be refused the power to order a conditional discharge which may well, in those circumstances, have a stronger deterrent effect?

The subsections appear to be without logical justification and are explicable only on the basis of a distrust of the courts. I believe them to be wholly unjustified.

Lord Dholakia: Perhaps I may add a further dimension in relation to Amendment No. 22, which I support and for which a strong case has been made out.

It is an accepted principle that the use of imprisonment and the length of a prison sentence takes into account the seriousness of the offence. That was acknowledged by the Government in the White Paper, Community Safety Order. That paper stated that proceedings for breach of an order would be dealt with summarily.

I do not dispute that, from time to time, there may be cases where imprisonment for a period over two years may be justified--not for the breach alone, but due to persistent criminal behaviour. What worries me is that none of that behaviour has to be proved to the criminal standard. The normal procedure available to defendants in criminal proceedings should not be set aside in a process which can result in a serious criminal conviction and a lengthy prison sentence.

Baroness David: I support Amendments Nos. 24 and 37. I was mystified as to why the possibility of a conditional discharge was put out of court, so to speak, and look forward to hearing the explanation for that from my noble friend.

Lord Williams of Mostyn: Amendments Nos. 21, 22, 24 and 37 are grouped together and I shall speak to them all together. They go to the heart of the policy on the new orders. We want a two-stage process: first, the civil order with preventative force acting like an injunction but not a perfect twin to an injunction; secondly, punishment for breach of an order by a criminal offence.

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The reason for that is very strong. Anti-social behaviour is a menace on our streets; it is a threat to our communities. We aim to prevent it as far as we may. A civil order is part of the regime for doing that. But, ultimately, we regard such behaviour as criminal. If it cannot be stopped at stage one--the order, after the safeguards I identified earlier--it must be recognised and dealt with for what it is. That is why we made the deliberate decision to invoke the criminal law at the breach of the order stage.

I deal now with some hyperbole. This is by no means unprecedented. If one looks at the Protection from Harassment Act 1997, Section 3 provides that,

    "A complainant may obtain an injunction against a defendant from the High Court or the county court".
If there is in fact a breach of such an injunction granted by the High Court or the county court, and the defendant, without reasonable cause, commits a prohibitive act, he is guilty of an offence. What further happens if he is found guilty of that criminal offence? He is liable on conviction on indictment to imprisonment for a term not exceeding five years or a fine, or both.

Lord Goodhart: Will the Minister accept that there are two vital differences in the case of an order under the Protection from Harassment Act which distinguish it from the proposed order under the Bill? One is that under the Protection from Harassment Act a restraining order or injunction can only be made following an actual conviction for criminal harassment, and the making of the order requires a criminal standard of proof. Secondly, the restraining order can only be broken by an act which is itself a breach of the general criminal law of the land.

Lord Williams of Mostyn: That does not go to the point of principle being addressed earlier by the noble Lord, Lord Thomas of Gresford; in fact, it does not bite on it at all.

If one looks at Section 3 of the Protection from Harassment Act 1997 an actual or apprehended breach of Section 1 may be the subject of a claim and an injunction may be granted. My point, to which I return because it will not elude us, is that on breach of the injunction, the conviction on indictment carries a maximum sentence not exceeding five years, a fine or both.

The injunction itself is analogous, we suggest, to an antisocial behaviour order. Perhaps I may tease out one or two further points in the spirit of flexibility and open mindedness for which I have been so often, and indeed, rightly, commended. What the noble Lord, Lord Thomas of Gresford, wishes is this. A man is subject to an antisocial behaviour order. He breaches it. It may be grossly, wilfully and continuously breached. We say, balancing all things as they are duly appropriate, that if it is relatively minor, on summary conviction the offender may be dealt with by imprisonment of not more than six months--the usual magistrates' court limit. On indictment, he may suffer a penalty of up to five years. So introduced there, as is customary in our law, is that if a sentence of more than six months--I omit the

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occasional two consecutive sentences in the magistrates' court--is to be passed, a man or woman can look in our system to trial by jury. That is what our system provides. But the noble Lord, Lord Thomas of Gresford, does not wish that as a safeguard for a defendant. He wants judge, and judge alone, to decide on guilt and sentence up to five years.

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