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Lord Thomas of Gresford: In answer to my query, what circumstances does the noble Lord envisage would have to have occurred for a five-year sentence of imprisonment to be passed for a breach of one of his antisocial behaviour orders and where a more serious offence has not been committed?

Lord Williams of Mostyn: My learned friend is like the mariner upon the icebergs. One of them is sinking and so he jumps on to the other one. I just want to sink the first one fully. I return to my point. If someone is liable to serious consequences by way of extensive imprisonment, our regime--liberal, enlightened and well informed--is that the man should be tried by a jury.

Lord Thomas of Gresford: Does the noble Lord intend, therefore, to change the system of civil injunctions so that anyone who is liable to two years' imprisonment for a breach of a civil injunction will now face trial by jury?

Lord Williams of Mostyn: No, because at the moment, as is normal in these circumstances, we are dealing with law reform one step at a time. What I am attending to now is the proposition that the noble Lord put forward. I do not mind if he is sorry that he put it forward when I expose what might charitably be described as internal self-contradictions.

There are circumstances that we know well--they are possibly rare but not as rare as we want them to be--where the kind of behaviour, but much, much worse, that my noble friend Lord Mishcon referred to earlier--racist behaviour--may have continued for a significant period of time, with people having no redress.

Lord Northbourne: Will the noble Lord give way?

Lord Williams of Mostyn: I am trying to answer the noble Lord, Lord Thomas of Gresford. I am perfectly happy to answer all conceivable questions on all possible subjects but I want to deal with the noble Lord's specific question. We reach the situation where the only redress for the individual citizen--black, white or whatever--is to try to establish through the relevant authority (a local authority or the police) that the order is required. If behaviour of that kind continues time and again even after the offender has been brought to court, even after the proceedings have been introduced, there

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may well be extreme circumstances where a five-year sentence would be justified. I can easily conceive of those circumstances. I now give way.

Lord Northbourne: I was going to ask the noble Lord whether under those circumstances the offender could not have been indicted under other legislation, possibly the Race Relations Act.

Lord Williams of Mostyn: The noble Lord's point is well made. If that were so, the prosecuting authorities would have their choices, as they have choices now, as to the basis on which they wished to bring charges against a particular individual. If that were so, that might be the appropriate action to take. What we are offering here--I know that the noble Lord, Lord Monson, anticipated my answer--is a maximum. It is a maximum which may be of utility in some circumstances. It is a maximum also which is intended to demonstrate the seriousness with which we regard this type of activity in certain circumstances.

I stress that imprisonment follows only when the order has been made, when criminal proof of the order has been demonstrated and when the defendant has the safeguard, if he wishes it, of trial by jury before he is exposed to a sentence of any more than six months.

I believe that we have put the balance right. I am very glad to have had the opportunity to deal with these questions and these propositions. I believe that the five-year maximum may never be used or very rarely indeed. It may well be appropriate in the circumstances which I have described.

We now come to the linked questions of Amendments Nos. 24 and 37, which I believe the noble Lords, Lord Henley and Lord Goodhart, rightly put in tandem because they address a slightly different aspect of the problem. As both noble Lords have identified, the consequence is that the conditional discharge will not be available. If a breach of the order is alleged there is provision for the defence of reasonable excuse. So for the breach to be proved that would have to be disproved by the court. To allow a further conditional discharge is really serving a further order, a further final warning and a further last resort.

We have come to the conclusion that that is otiose. The original seeking of the order gives a message to the defendant which is, "Carry on like this and serious consequences may well come about. If you breach the order there will be criminal sanctions." For a conditional discharge to follow a breach there will be the same statement over again. It ignores the original order and we shall be back in a situation which most people have regarded as foolish in the extreme; namely, caution, caution and caution.

We have come to the policy conclusion that if, without reasonable excuse, which is a defence, a breach of the order occurs, it must mean that the defendant has continued in his actions in defiance of the court and in the knowledge that his conduct will be viewed in that way. It means that he has a pattern of behaviour that he either cannot or will not control. In that context, with

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all the safeguards built in, we believe we are right not to accept these amendments. We are talking about serious matters. I recognise the rights of defendants. We believe in giving the defendant the opportunity of trial by jury and the reasonable excuse defence. We believe that that is the right outcome. We do not believe that a conditional discharge, which so often, as they say in the trade, is just a slap on wrist with a wet lettuce, is appropriate.

9.15 p.m.

Lord Goodhart: Would it be possible for the court to impose a fine of £5 or £10 or does the Minister intend to exclude that power as well?

Lord Williams of Mostyn: The noble Lord has rightly scanned the Bill and come to the same conclusion as I have. A fine is possible, but a conditional discharge is not.

Lord Northbourne: I am sorry to delay the Committee. Can the noble Lord give me an example of a situation in which the five-year prison sentence would be appropriate and which could not and should not be dealt with under other legislation?

Lord Williams of Mostyn: It may well be that there are evidential difficulties with other legislation, but I do not know. I cannot possibly scan all possible hypothetical situations. We are saying two things: firstly, this is serious business to which we are intent and, secondly, the prosecutor still has the discretion to choose the appropriate charge. I do not believe anyone in this Committee has any doubt that there is serious social mischief here.

Lord Renton: In support of what the noble Lord, Lord Williams, has said and with deep respect to the noble Lord, Lord Northbourne, it is a fairly frequent practice, when drafting indictments, to create more than one offence out of the same facts. The prosecution need to play for safety. If it does not get a finding against one statute, it may do so against another. So, as a matter of precaution, that is done quite frequently.

Lord Thomas of Gresford: It is a sad day that the Government Benches have to support their arguments by reference to the final kick of the previous Home Secretary in the previous administration; namely, the Protection from Harassment Act. I am glad that the noble Lord, Lord Williams, referred to that legislation because I attacked it root and branch for precisely the same reasons as I am attacking this. I put forward a scheme very similar to what I am arguing today. I am completely consistent. Unhappily, the Labour Government have followed in the footsteps of their predecessors. As I say, it is a very sad day. That legislation was swallowed up in the rush to get things on the statute book just before the general election. It is for that reason and because the Government are now relying on the last Act of the previous Home Secretary that I welcome the lack of support from the Conservative Front Bench. That rather makes my point.

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However, I most warmly welcome the support that I have received from other noble Lords, including my noble friends, who have recognised the importance of this point.

When the noble Lord, Lord Williams of Mostyn, uses the word "serious", which is now replacing "flexible" as the word of the night, is he suggesting that I am joking? Is he suggesting that I do not appreciate that there is a social evil which has to be addressed? But that social evil has to be addressed with regard to the liberties of the people of this country. These matters should be dealt with properly and sensibly.

The noble Lord was unable to answer the questions put to him by the noble Lord, Lord Northbourne, and was unable to name a single circumstance that he could envisage in which a five-year sentence could be imposed when another criminal offence had not been committed. If the argument is that a person may be in breach of the order time and again, the answer is that under my proposals he could go to prison for up to two years at a time on each breach. This is a serious matter. I do not propose to press the amendment tonight for obvious reasons, but I assure the noble Lord, Lord Williams, that I shall return to it in due course. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No.22 not moved.]

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