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Lord Thomas of Gresford: My Lords, I fully support my noble friend's amendment. A few moments ago the noble Lord, Lord Renton, said that a jury may
have to decide such issues. In fact, there are two stages set out in the clause. The first stage is that it must appear to "the authority," which is either the local authority or the police--not a jury--that the relevant conditions have been met. The amendment is addressed to that first stage. It is proposed that the antisocial manner should be defined in the way outlined by my noble friend.The second stage is when the jury, or a magistrates' court, may become involved. That arises in subsection (10) of the clause, which says:
- "If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable",
to the various penalties set out thereafter. Therefore, when it comes to the imposition of the criminal sanction, there is, presumably, a defence that the defendant has a "reasonable excuse" for what he has done. What my noble friend is suggesting is that one should, as it were, introduce the concept of the reasonable excuse before what he described as this dangerously wide order is imposed in the first place.
What concerns me is that at the stage when the local authority or the police are considering the making of this wide order, the person against whom the order is made may not be guilty of disturbing behaviour but of disturbed behaviour. Let us suppose someone who is mentally ill and is at large in the community is causing alarm and distress through his conduct. Is his mental illness not to be taken into account in the first place in the imposition of the order by the authority, and then can it be taken into account as a reasonable excuse if he should be subsequently charged with a criminal offence under subsection (10) at some later stage after the order is made? I believe there is a conflict between the first stage, the making of the order, and the further criminal stage.
Lord Renton: My Lords, as this is Report stage I may not make another speech. However, will the noble Lord be so good as to bear in mind that although, as he rightly says, under subsection (1) there is the question of the making of an order by "a relevant authority", nevertheless the definition of the antisocial behaviour referred to in subsection (10) is dependent upon what is written into subsection (1) where the definition of antisocial behaviour appears? That is what we are concerned with.
Lord Thomas of Gresford: My Lords, I am grateful to the noble Lord for his comments. I entirely agree with what he says. In a way he is making my point; namely, if you cannot commit the offence of being in breach of an antisocial order if you have a reasonable excuse, why should the order be made in the first place? Why should not the qualifications that my noble friend suggests in his amendment be before the authority who are minded to make the order in the first place? I suggest that the Minister should reconsider the matter.
Lord Campbell of Alloway: My Lords, I do not find any inconsistency here. A relevant authority may apply for the order. However, there is a discretion under subsection (4) as regards the court. It does not have to
make an order; it may make an order. If there are mitigating circumstances and special considerations, the court retains under subsection (4)--as I see it, and I stand open to correction--a discretion whether or not to make the order. If that rather simple form of construction is correct, what is wrong with the clause?
Lord Northbourne: My Lords, I share the anxieties of the noble Lords, Lord Thomas of Gresford and Lord Goodhart. I do not know the right way to solve this problem. However, I am concerned that the phraseology of Clause 1 leaves open the possibility that an order may be made in circumstances where the alarm or distress caused was not, as it were, reasonable. Surely there should at least be a limitation that the alarm or distress is such as could be caused to a reasonable person and not just to any one person. That provision should be included as a minimum. I support the amendments of the noble Lord, Lord Goodhart.
3.45 p.m.
The Solicitor-General (Lord Falconer of Thoroton): My Lords, what underlies the amendment of the noble Lord, Lord Goodhart, as I understand it, is a concern that there may be conduct which upon analysis does not justify the making of an antisocial behaviour order because it is either reasonable or not sufficiently serious to justify the making of an order. I believe that his concern is misplaced. I believe that insufficient attention has been given to the basic procedure which applies in relation to the making of such an order. Without being wearisome I hope I may indicate briefly what is involved.
The application for an order can be made only after consultation between the local authority and the police authority. There is no obligation on an authority which regards antisocial behaviour as taking place, or arguably taking place, to make such an application. Once it has consulted and decided to make the application, as the noble Lord, Lord Campbell of Alloway, rightly pointed out, there is a discretion on the part of the magistrates' court as to whether or not it makes an order. On the point made by the noble Lord, Lord Northbourne, there is a specific provision in Clause 1(5) which requires the court, upon the application for an order being made, to,
- "disregard any act of the defendant which he shows was reasonable in the circumstances".
Therefore there is the obligation to consult; there is the discretion as to whether to apply; there is the discretion on the part of the magistrates as to whether or not to grant the order; and there is the obligation on the part of the magistrates to remove from their consideration any conduct on the part of the defendant--the person against whom the application is made--which they regard as being reasonable in the circumstances.
We believe that that is safeguard enough to ensure that the orders are not made in inappropriate circumstances. Equally, we believe that one needs to deal with this on a case-by-case basis. We need to give magistrates a straightforward and clear test they can apply, which we believe our provision does. We believe that there are more than sufficient safeguards in the Bill as it is. I say with the greatest of respect to the noble
Lord, Lord Goodhart, that his amendment is unnecessary, misplaced and simply adds to complication where none is necessary.I turn to the two elements in the amendment--
Lord Thomas of Gresford: My Lords, before the Minister does that, can he explain what the Government have in mind by the expression "without reasonable excuse?" What kind of excuse would be reasonable for the breach of an antisocial order that had been made by a magistrates' court?
Lord Falconer of Thoroton: My Lords, it would be wrong for me to start to define here what is a reasonable excuse because that quintessentially is a matter that magistrates decide on a day-to-day basis.
Lord Falconer of Thoroton: My Lords, I can give the noble Lord, Lord Thomas of Gresford, an example as he made a strange noise when I said that. If, for example, the nature of the antisocial behaviour was continually to make a noise with a car, or a noise of the kind that the noble Lord, Lord Thomas of Gresford, makes from time to time, a reasonable excuse might be that a medical emergency required the arrival of a loud car at night to drive someone away. There is tremendous danger in someone seeking to indicate in this debate what constitutes reasonable excuse because then it would become defined. I say with the greatest of respect to the noble Lord, Lord Thomas of Gresford, that I should have thought his vast experience in the courts would lead him to the conclusion that magistrates are wise enough and experienced enough to know a reasonable excuse when they see it. As one reads the provisions of the Bill, one can see that there is no conflict whatever between the criminal offence stage--namely, determining whether there is a breach of the order--and the stage at which one is considering whether to make the order.
I shall deal with the two elements of the amendment of the noble Lord, Lord Goodhart. First, on the issue of specific intention, in considering whether to grant an order in the first place the courts will have to consider whether on the balance of probabilities the behaviour of the individual or the individuals was likely to cause harassment, alarm or distress in the future. As I have already stated, the nature of this order is merely prohibitive. That is to say, a person subjected to the terms of an order is merely being asked to behave in a reasonable manner, in a way which is considered to be within the bounds of the law. We are not talking at this first stage about sanction for a criminal offence. Moreover, as I have indicated, a defence of reasonableness has been provided. Surely there can be no need to prove intent merely to seek an order which simply demands that a person acts reasonably. To ask for that would be to cut across one of the main purposes of the provision. We believe that it is the heedless, careless antisocial actions that the order needs to target, not just those with deliberate intent. The orders do not
simply duplicate that which is already provided in the Public Order Act 1986 and Protection from Harassment Act 1997.The prohibitive order is, as noble Lords know, backed by a criminal offence in the event of a breach, and this offers--as the noble Lord, Lord Thomas of Gresford, rightly pointed out, albeit with an air of bafflement--the defence of reasonable excuse. Someone who breaches the order will therefore not be liable to prosecution under the criminal law unless he wilfully breaches the order.
The second issue is whether the behaviour should be such as to cause "serious" or "justified" alarm or distress. For the reasons I have indicated, we do not feel this is necessary. I entirely agree that applications should not be brought where the behaviour at issue is trivial. But I believe that for the reasons I have indicated there are sufficient protections to prevent that happening. Moreover, the amendment makes the clause more difficult to understand and unnecessarily complicated. For those reasons, I ask the noble Lord to withdraw his amendment.
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