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5.15 p.m.
Lord Hardie: This amendment addresses a concern that the court process would not be sufficiently speedy to meet the expectations of local communities. I should point out that Clause 20 provides that applications for such orders should be made by way of normal summary application procedure for civil business; and as the noble and learned Lord will be aware, that is a particularly swift procedure, in so far as any court procedure is swift.
Cases where there is a need for urgency should be rare. However, given that conduct which is clearly criminal will be addressed by other means, in my view it would be unnecessary to have any special provision.
In relation to legal aid, to which the noble and learned Lord referred, and the possibility of sisting for an application for legal aid, there is provision for emergency legal aid in such circumstances. If there is a particular urgency, the local authority applicant can seek that the period of notice to the person against whom the order is to be made could be as little as 48 hours and then make representations to the sheriff to justify an early diet being fixed for the hearing.
I am not satisfied that there is a requirement for an interim order in anti-social behaviour orders. As we shall discuss shortly, we consider that interim orders should be possible when sex offender orders are being considered because of the nature of the behaviour which such orders is intended to prevent. Having said that, and in a spirit of conciliation, I agree to consider this matter further on the same basis as that of my noble friend Lord Williams of Mostyn. Again, I should not hold out too much hope of change.
Lord Mackay of Drumadoon: Small though the mercy be, I am grateful for it, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon moved Amendment No. 58:
The noble and learned Lord said: Amendment No. 58, which is grouped with Amendments Nos. 70 and 73, raises the issue of whether, when orders are pronounced in Scotland under Clauses 18 and 19, there should be attached to them a power of arrest which would enable an officer of police who was advised of an alleged breach of the order to arrest the person who is the subject of the order if he deemed it appropriate to do so.
Amendments Nos. 58 and 70 are in my name and that of my noble friends. Amendment No. 73 is in the name of the noble and learned Lord the Lord Advocate. It may
The government amendment seeks to achieve my objective in that it provides that a constable, without warrant, may arrest any person whom he reasonably suspects of doing or having done anything prohibited by a sex offender order. It does not attach such a power of arrest to the order itself but it gives the police officer the necessary power and to some extent therefore it meets my purpose.
However, I invite the noble and learned Lord the Lord Advocate to clarify whether such a power would exist when the court had exercised its powers under Clause 19(5)(a) and granted an interim order pending the granting of a sex offender order. If the answer is that it would not--and as I construe the amendment it would not--then I ask why that is the case.
I also pose a supplementary question relating to such interim orders. Let us suppose that the sheriff has exercised his power under Clause 19(5)(a) and pronounced an interim order and the person against whom the order is directed or pronounced breaches that order. What is the sanction? As I read the Bill, there are no provisions in it which would allow the court to deal with the matter. Therefore, we would have to fall back on the normal rules of contempt of court as regards the breaching of any order. Indeed, harking back to a debate which the noble Lord, Lord Thomas, initiated on the last occasion, that might lead to some considerable confusion in that certain orders pronounced under Clause 19 would be penalised as being contempts of court, whereas others would be penalised under the route set out in the Bill. I fully appreciate that we are discussing fairly technical issues. Nevertheless, they are of practical importance notwithstanding the fact that the Government and I are at one in suggesting that, in dealing with sex offender orders, there should be such powers of arrest.
I turn now to Amendment No. 58, which seeks to introduce into the procedure for antisocial behaviour orders a power on the part of the sheriff to attach a power of arrest when such an order is pronounced. If a person acts in breach of an antisocial behaviour order and his action constitutes a criminal offence which could be prosecuted at common law in Scotland as a common law offence, and there is evidence of such a breach, I fully understand that, as a matter of practice, there may be no need for such a power because the police officer could exercise his existing powers to arrest people or, if appropriate, detain them for having committed a breach of the peace, an assault, or whatever the offence may be.
However, from the way that the terms in Clause 18(3) are framed, especially the last few words, it is possible to foresee a situation where an order is breached without any criminal offence having been committed and, therefore, without any arrestable offence being available to allow the police officer to exercise his powers. I suspect it is also possible to foresee a situation where there is little doubt that a common law offence has been committed, but equally there is no doubt that there is only one witness to such a situation. Therefore, the
It is in the interests of the order that such a power of arrest should be attached to it. The Scottish Affairs Committee of another place, whose report I referred to on the last occasion, recommended that interdicts involving violence not just in the domestic situation should have such powers of arrest attached to them. As I have mentioned, the Government acknowledge that that is appropriate in sex offender cases. However, I invite them to go that one step further and accept them in relation to antisocial behaviour orders.
I should stress that all I am seeking is that the power of arrest should be included in the order if the sheriff deems it appropriate. I am certainly not suggesting that it should be mandatory for any such power to be attached to the order. Indeed, even if it were included in the order, it would then be a matter for the discretion of the police officer, in the light of his training and experience and the factual situation with which he is confronted when it is alleged that an order had been breached, to decide whether or not he should exercise such a power. I beg to move.
The Earl of Mar and Kellie: I should like briefly to contribute to the debate. I certainly approve of the need for a swift procedure in such circumstances. However, I am wondering how the public, who will have to supervise such orders, will get to know about them. We have heard that the police will be supervising them unofficially, but will publicity about who has been placed on an antisocial order be allowed? I suppose that I am really asking a question about community notification, because the working of an antisocial behaviour order will depend on the community responding to it.
Lord Hardie: Amendments Nos. 58 and 70 relate to powers of arrest. It is our position that there is no need for a power of arrest for breach of an antisocial behaviour order. Where the behaviour which constitutes a breach is sufficiently serious to justify arrest, it will almost certainly constitute a criminal offence; for example, a breach of the peace. The powers of arrest relating to that offence would then apply. That is very different from a breach of a sex offender order.
I am grateful to the noble and learned Lord for raising the issue by way of his amendments. I certainly agree that it is important--given the nature of the criminal conduct that sex offender orders were intended to discourage--that anyone breaching such an order can be arrested. A breach may well indicate that an individual's behaviour is getting out of control, and that a serious sex offence is imminent. The behaviour prohibited by an order may, however, be relatively innocuous and certainly non-criminal. An individual may, for example, be prohibited from entering a children's playground between certain hours. That behaviour may be a reliable indicator, in relation to the particular offender, that a serious sex offence is about to be committed.
The police's common law powers of arrest may not be sufficient to allow arrest in such circumstances. That is particularly so if the police know the home address--as they will do because of the registration requirements associated with orders--and it is not judged that the individual is likely to abscond. In England and Wales, breach of a sex offender order will automatically be an arrestable offence under the Police and Criminal Evidence Act 1984, because it carries with it a maximum penalty of at least five years' imprisonment.
I fully accept the need for a power of arrest and the principle behind the amendment. However, I hope that the noble and learned Lord will forgive me if I indicate that I am not persuaded that it should be couched in the terms set out in his amendment. For example, there is no need for the proposed subsection (5B) as sex offender orders will not have effect until served; and the provisions of Section 22 of the Criminal Procedure (Scotland) Act 1995 would apply automatically as breach of an order is an offence which can be tried summarily. Therefore, subsection (5D) is also unnecessary.
Perhaps I may now turn to the point raised by the noble and learned Lord as to whether or not the powers of arrest in the government amendment would cover an interim sex offender order. I should like to take this particular aspect away with me to consider whether a further amendment is required in addition to the present government amendment to meet that point. I shall, therefore, return to the matter at a later stage. Members of the Committee will see from the Marshalled List that there is an equivalent amendment tabled in my name; namely, Amendment No. 73. I invite the noble and learned Lord to withdraw his amendment, and that grouped with it, and support my amendment.
Page 15, line 6, at end insert--
("(3E) On making an anti-social behaviour order, a sheriff shall attach a power of arrest, unless it appears to him that in all the circumstances of the case such a power is unnecessary.
(3F) A power of arrest attached to an anti-social behaviour order shall not have effect until a copy of such an order has been given or sent to the person named in the order in terms of section 20(8).
(3G) If by virtue of subsection (3E) above, a power of arrest is attached to an anti-social behaviour order, a constable may arrest without warrant the person named in the order if he has reasonable cause for suspecting that person of having done anything which he is prohibited from doing by the order.
(3H) Where a person has been arrested under subsection (3E) above, the officer in charge of a police station may liberate that person in accordance with the provisions of section 22 of the Criminal Procedure (Scotland) Act 1995 or refuse to liberate that person; and such refusal and the detention of that person until his appearance in court by virtue of any provision of the Criminal Procedure (Scotland) Act 1995 shall not subject the officer to any claim whatsoever.").
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