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Lord Hardie: My Lords, these amendments would increase the standard of proof for antisocial behaviour and sex offender orders from the civil standard to the criminal standard. As discussed in detail at Committee stage, however, these orders are prohibitory and are neither convictions nor punishments. In these circumstances, it is right that the laws of civil evidence should apply and that an order should be granted if the need for it is proved on the balance of probabilities. This is no different from the situation in interdict cases where often one is dealing with similar types of behaviour or with applications to the civil courts for non-harassment orders. As to the ability to adduce counter evidence, the Bill does not preclude anyone from doing so in an application before the sheriff. I invite the noble Earl to seek leave to withdraw the amendment.
The Earl of Mar and Kellie: My Lords, I am interested to learn that the opportunity to cross-examine the evidence and adduce counter-evidence is available if the person concerned wishes to avail himself of it. With that in mind, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
The Earl of Mar and Kellie moved Amendment No. 45:
The noble Earl said: My Lords, I beg to move Amendment No. 45 whose purpose is to narrow the possible scope of the order. It also places limits on what the order should proscribe. I believe that it should be restricted to the behaviour that is reported to the court. At present the scope of the order appears to be too wide. A citizen who is subject to an antisocial behaviour order must know what he is forbidden to do. In the civil court an interdict prohibits the continuation of the conduct that gave rise to the application for the interdict. As an
Lord Hardie: My Lords, the amendment would restrict the sheriff to making an order prohibiting the person from doing the same act that it had been established he had done before. That does not necessarily mirror the situation in interdict proceedings. Although interdict frequently stops someone from doing the same act that he or she has been doing before, it can also be used to preserve rights. If there is an apprehension that someone is going to dispose of an asset, the ownership of which might be in dispute, the interdict might be used to preserve it. It might also be used to protect an individual from harm if he or she thought that he or she was going to be assaulted. It would need to specify that the assault had to be in the same manner as any previous assault.
So if, for example, the amendment were agreed to, and if an application for an order related to youths who had been knocking or banging on the doors of three houses in a particular street between midnight and 2 a.m., the order would prohibit them from doing only that. It would not prohibit them from banging on the door of another house in the same street, or perhaps from banging on the same doors at different times, although that may be more doubtful.
The effect of the amendment would be to limit the order too much. In the circumstances it would be too easy for individuals to continue their antisocial careers while avoiding breaching the order. It is clear that the provisions as drafted enable the sheriff to impose any prohibitions that he considers necessary to protect the community from any antisocial acts or conduct. It is not limitless. It is limited to what measures he considers necessary to protect the community from antisocial acts or conduct.
The person against whom an order is made will have a clear indication of what he or she is prohibited from doing, because he or she will be served with an order which will spell out the behaviour which is prohibited. So the interests of those against whom orders are made are protected. It is our view that the sheriff must have discretion to impose whatever prohibitions he considers necessary to protect the public. In those circumstances, I ask the noble Earl to withdraw the amendment.
The Earl of Mar and Kellie: My Lords, the amendment was suggested by the Law Society of Scotland. It was inspired by the thought that the sheriff could produce an order which said something to the tune of, "not to indulge in antisocial behaviour". The noble and learned Lord has made it clear that it will be a much tighter range of behaviour, but at the same time it will not be a fishing trip or catch-all which would surprise the offender who did not know that he was thinking of doing certain things in the future. Understandably, a
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon moved Amendment No. 46:
The noble and learned Lord said: My Lords, this is an important amendment which seeks to introduce into Clause 18 a power to allow the sheriff to make an interim antisocial behaviour order in the same way that Clause 19(4) allows him to make an interim sex offender order.
Your Lordships will recall that the matter was discussed at Committee stage following which I was pleased to receive from the noble and learned Lord the Lord Advocate one of a number of letters dealing with the issues discussed. He stated that while agreeing with certain of our suggestions he did not propose to introduce provisions for interim antisocial behaviour orders because, among other reasons, he did not wish to skew civil business unnecessarily in that way. He added:
With the greatest respect to the noble and learned Lord, I am not clear what he means by the expression "skew civil business unnecessarily". Daily, sheriffs throughout Scotland have to deal with a variety of applications for interim orders, including interim interdicts. I do not understand how that skews civil business unnecessarily. Sheriffs are well accustomed to dealing with them on the basis of ex parte submissions by solicitors or counsel. Therefore, I do not feel persuaded by that argument.
Undoubtedly, the noble and learned Lord the Lord Advocate accepts that there will be cases of urgency, albeit rare, and the amendment is designed to take account of them. As regards his statement that:
as I suggested on the last occasion, that may be easier said than done. If the person against whom the application for an order is directed seeks to apply for legal aid, even standing the availability of emergency legal aid certificates, that may take some time. If he then lodges answers or defences disputing the factual allegations and averments made against him the case will require to be set down for the hearing of evidence of proof. It may take some time to fix a suitable date and the hearing may last one day or two or, in a complicated case, several days. The sheriff will then have to consider his decision and in some instances that may involve a delay in issuing the judgment.
Therefore, there is a distinct possibility that, in a case of urgency where there is a stateable and colourable argument that an interim order is appropriate, in the
However, there is a further reason which I mentioned in Committee. I am concerned that if a defender hears that the local authority is to seek such an order against him, that may seek to inflame the situation and provoke him into further antisocial behaviour in which he might otherwise not have engaged. No doubt from time to time when someone who has misbehaved as a bad neighbour is warned, whether by the police or by a friendly representative of the local authority, that he ought to mend his ways, he will do so.
However, my experience as a solicitor and counsel suggests that there will be others who will be aggravated by such a threat and, far from improving their behaviour, they will go from bad to worse. If they offend against the criminal law and there is sufficient evidence to justify a prosecution, no doubt the police and the procurator fiscal will deal with them. But if they are sly and cunning individuals, they may act when there are no witnesses available, apart from the particular individual against whom their behaviour is directed. In such circumstances, the police may be powerless to act.
One of the benefits of this provision, if it is to be enacted, is that there will be no requirement for corroboration and no requirement to meet the criminal standard of proof. And yet, if there is no power to grant an interim order, it may be some weeks before the victim of the bad neighbour can be protected.
I have considered carefully what was said by the noble and learned Lord the Lord Advocate on the last occasion. I have thought about the matter and discussed it with the Law Society, which has an interest in this matter. I remain to be persuaded by the argument against including such a power which it is acknowledged will be of value in Clause 19 but which it is disputed will be of value in Clause 18. This does not require the sheriff to grant such an order. It merely affords him the power to do so. On that basis, I beg to move the amendment.
Lord Hardie: My Lords, as I indicated in Committee, I have considered carefully whether we should make provision for interim antisocial behaviour orders. As the noble and learned Lord remarked, I wrote to him on 10th March indicating that I had considered the matter and I remain of the view that I do not support the amendment.
As I indicated in my letter, I should not wish to skew civil business in that way. Perhaps I may explain what I had in mind. As the noble and learned Lord will be aware, this will be a summary application. In such applications, the sheriff determines the procedures so that he can make the procedure as quick or as lengthy as he wishes.
My concern is that if interim orders were permitted in summary applications in the context of antisocial behaviour orders, it would place an undue burden on the court. The noble and learned Lord will know that,
Equally, the noble and learned Lord will be aware that many interim orders are sought, whether it is interim interdict or any other interim order, which are not granted. The burden on the courts would be unreasonable.
In my respectful submission, it would not be appropriate to have interim orders. If the complainant or the people who were suffering as a result of the behaviour wished, they could apply for interdict and obtain an interim interdict. But the whole point about the orders is that they seek to take the neighbours or victims out of the situation and to enable the local authority to take the initiative.
I take the noble and learned Lord's example of the sly person who was victimising neighbours and so on and was committing acts which were not witnessed by anyone other than the victims themselves. In the context of this legislation, it is unlikely that the local authority would be able to come forward with an order unless the neighbours or victims came forward as witnesses. That is one thing that we are trying to avoid.
However, having said that, truly urgent cases--that is to say, urgent compared with the rest of civil business--should indeed be rare. Given the fact that this is a summary form of application, the sheriff could be encouraged by a local authority to hear the application quickly. The local authority would make an application to the sheriff to have an early diet. Further, in those urgent cases, the probability is that the conduct complained of would almost certainly be criminal and, as the noble and learned Lord observed, there are other remedies in that respect. The police would be involved and could take swift action.
During our earlier discussions, the noble and learned Lord drew a comparison with interim interdict in Scotland. It may be necessary to obtain an interim interdict in a very short space of time because of the urgency or imminence of the threat, whether it be of violence or of removal of property. However, that is not the situation where antisocial behaviour orders are concerned; indeed, they are not intended to address such immediacy and immediacy will not normally apply. There is also the question of title interest of local authorities to raise interdict proceedings in respect of someone who is not their tenant. The noble and learned Lord will be aware of the case of Dundee City Council against Cook in 1995.
The noble and learned Lord also suggested that the application for an antisocial behaviour order might inflame the situation and exacerbate the antisocial behaviour. In our view, the reverse is more likely. The local authority will inform those responsible for the behaviour that an order is contemplated. That, in itself, might, as the noble and learned Lord accepted, induce some of the recalcitrants to mend their ways so that an order would no longer be necessary. However, if it does
Page 15, line 14, leave out ("doing anything described in the order") and insert ("continuing the course of conduct which gave rise to the summary application").
Page 15, line 14, at end insert--
("( ) On an application under subsection (1) above, the sheriff may make such interim order in terms set out in subsection (3) above as he considers appropriate.").
"Cases where there is a need for urgency should be rare, given that conduct which is clearly criminal will be addressed by other means. If exceptionally there is a need for particular speed the local authority applicant can ask the sheriff to hear the application quickly".
"If there is a need for particular speed the local authority can ask the sheriff to hear the application quickly",
9.30 p.m.
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