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6.15 p.m.

Lord Hardie: These amendments are concerned with the way in which orders are made, served, appealed against, varied or revoked. The noble and learned Lord, Lord Mackay of Drumadoon, referred towards the end of his remarks to Amendment No. 90 and perhaps I can deal with that first.

Amendment No. 90 would have the effect of removing the possibility of an application being made for a civil order where a procurator fiscal or the Lord Advocate decided to raise criminal proceedings relating to the same circumstances that gave rise to the civil proceedings and where those criminal proceedings subsequently fail.

The behaviour which has given rise to an application being made in the first instance may not be sufficient to meet the standard of proof required in successful criminal proceedings, but may yet satisfy the lesser standard required in civil cases. We do not therefore consider that the option of proceeding with a civil measure should be removed.

The Lord Advocate already has the power to enter into any process in the public interest. We will certainly consider whether any amendment is necessary to the clause to include a provision for a minute to be lodged by the Lord Advocate or the procurator fiscal, as the case may be, to sist the civil proceedings pending the outcome of the criminal proceedings.

We consider that that would achieve the purpose which the proposed amendment seeks in preventing civil proceedings progressing until the outcome of any criminal proceedings is known. Neither a procurator fiscal nor the Lord Advocate can be required to specify their reasons for making particular decisions, so the second part of the amendment is not required.

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Amendment No. 71 seeks to make it clear that the prohibitions in an order are to be those the sheriff considers necessary. Since it is only the sheriff who can make such orders, the amendment would appear to be unnecessary.

Amendments Nos. 68 and 68A would reduce the sheriff's discretion over when he could make an interim order under Clause 19. Instead of being able to make such an order when he considered it appropriate, he would only be able to do so if he considered one necessary, or necessary in the interests of public safety. In the context of an interim order that would be an unnecessary fettering of the discretion of the sheriff. Given the nature of the behaviour which these orders are intended to prevent, I would not wish to restrict the sheriff in that way.

I have no difficulty with the principle behind Amendment No. 88, which is that the court should send a copy of an antisocial behaviour order or a sex offender order to the relevant chief constable at the same time as it is given or sent to the person to whom it applies. That is sensible as a breach of an order is an offence which the police would be required to follow up.

I do not consider that it is necessary to specify that in the legislation since it is a procedural matter. We would, however, cover this point in the guidance to which I have already referred. The same approach was taken over the copying of the court certificate and notice of requirement to register under the Sex Offenders Act 1997. The certificates and notices are copied to the police and--where appropriate--the local authority, prison or hospital which will be responsible for the offender. The arrangements were provided for in guidance which was discussed in detail with those involved.

In relation to Amendment No. 86A, I see no need to remove the words "at any time" from the provision. It could be argued that the provision would have the same effect without them, but I consider that they provide helpful clarification. To take the point made by the noble Earl, Lord Mar and Kellie, in theory it could mean that an application could be made the following day, but in reality that would not occur. If it did, I am sure that any sheriff would give it short shrift.

In relation to Amendment No. 84, I agree that certain of the procedural provisions in Clause 20 should apply to interim orders under Clause 19(5). I do not, however, agree that the provisions in subsection (7) on the duration, variation and revocation would be appropriate for interim orders.

Amendment No. 85A stands in my name and extends the procedural provisions on the service of orders in subsections (8) and (9) to interim orders under Clause 19. I intend to move Amendment No. 85A and therefore ask that Amendment No. 68 be withdrawn along with other amendments grouped with it.

Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord the Lord Advocate for dealing in such a constructive manner--albeit taking different tacks--with the four amendments to which I spoke.

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Perhaps I can make one further comment in relation to the amendments incorporated in the two parts of Amendment No. 90.

The amendment was designed not only to deal with the situation which the noble and learned Lord the Lord Advocate discussed, where criminal proceedings had been initiated and were running their course or where the view had been taken that they would have been initiated but because of some problem with sufficiency of evidence they could not be initiated; it was also designed to deal with a situation where the Crown was firmly of the view that, albeit there was a sufficiency of evidence, it would not be in the public interest to prosecute the accused man. The issue would therefore arise as to whether it was in the public interest for the local authority to seek an antisocial behaviour order against a man who is no longer the accused, but is the defender.

As the noble and learned Lord will be aware, in many disputes there are two sides to the story. Anybody involved in the criminal justice system, whether prosecuting or defending, will know that it is not uncommon for a dispute to erupt where it is impossible for either the police or the prosecutor to decide which side is in the right or in the wrong. I therefore invite that further consideration to be before the noble and learned Lord the Lord Advocate. On the basis that I received a most constructive response, I beg leave to withdraw Amendment No. 68.

Amendment, by leave, withdrawn.

[Amendments Nos. 68A to 72 not moved.]

Lord Hardie moved Amendment No. 73:

Page 16, line 14, at end insert--
("( ) A constable may arrest without warrant a person whom he reasonably suspects of doing, or having done, anything prohibited by a sex offender order.").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 74 not moved.]

Clause 19, as amended, agreed to.

Clause 20 [Procedural provisions with respect to orders]:

[Amendment No. 74A not moved.]

Lord Hardie moved Amendment No. 75:

Page 16, leave out line 17.

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Drumadoon moved Amendment No. 76:

Page 16, line 19, at end insert ("and the relevant procurator fiscal").

The noble and learned Lord said: I shall speak briefly to this amendment, which I fully accept might have been grouped with others. I accept that the need for a local

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authority to consult with the procurator fiscal prior to seeking an antisocial behaviour order under Clause 18 might be dealt with by way of guidance, although the position as far as concerns the chief constable is set out on the face of the Bill. I would welcome an assurance from the Lord Advocate that he will look at this point when considering the guidance which is currently being drafted. I beg to move.

Lord Hardie: I can give the assurance sought by the noble and learned Lord. I invite him to withdraw the amendment.

Lord Mackay of Drumadoon: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 77 to 85 not moved.]

Lord Hardie moved Amendment No. 85A:

Page 16, line 34, at end insert ("and subsections (8) and (9) below apply to an order made under section 19(5)(a) above").

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 86 to 88 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 89:

Page 17, line 12, leave out ("shall continue to have effect") and insert ("may be suspended").

The noble and learned Lord said: This amendment seeks to inject into the appellate procedure for appeals against orders a power for the appeal court to suspend the order complained of.

I fully accept that once an antisocial behaviour order or sex offender order has been pronounced there is a very strong argument that it is in the public interest that that should remain in effect until either varied by the sheriff or successfully appealed against. However, there may be rare occasions when it is appropriate that the order should be suspended pending the outcome of the appeal. To take an extreme example, if the local authority had been hoodwinked by a group of alleged victims and it became apparent that the evidence upon which it had relied at the hearing before the sheriff was tainted by perjury but there was delay in getting the matter to a final appeal hearing, it must be appropriate for that order to be suspended ad interim. It is possible to envisage other such examples.

I may be wrong, but as I construe the provisions of Clause 4(2)(b), which deals with appeals against such orders in England, the English Crown Court would have power to make an incidental order as appears to be just. I stand to be corrected as to whether that would cover an interim order; but if it did, it would certainly seem to be sensible for the same discretion to be available to the appeal courts in Scotland as appears, on my layman's reading of the English provision, to be available in England.

The other issue arises in Amendment No. 92, which is grouped with Amendment No. 89, and is of a fairly technical nature. As the Lord Advocate said earlier,

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applications will be by way of summary application. Appeals are in certain instances competent from determinations in summary applications, but there is a great variety of jurisprudence as to in what circumstances they are competent and to where the appeal should lie--whether it requires to go first to the sheriff principal or whether it should go directly to the Court of Session. If I may pray in aid again the consultation responses, my recollection is that some consultees asked that this matter be clarified. What I suggest in Amendment No. 92, as this issue will arise locally and be concerned with activity in a specific local authority area, is that it is appropriate that any appeal should in the first instance lie to the sheriff principal. I hope that certainly the spirit lying behind the amendment will be acceptable. I beg to move.

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