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Lord Hardie: My Lords, as I indicated when we discussed this matter in Committee, there is no need for a power of arrest without warrant for breach of such an order. Where the behaviour is serious enough to justify arrest, it will almost certainly constitute a criminal offence in its own right and the powers of arrest relevant to that offence would apply, although any arrest for such an offence without warrant would require to be justified in the particular circumstances.
In Committee, the noble and learned Lord, Lord Mackay of Drumadoon, referred, as he did this evening, to the recommendation of the Scottish Affairs Committee of another place that interdicts involving violence should have powers of arrest attached to them and suggested that a similar argument could be made for antisocial behaviour orders. But breach of an interdict is a form of contempt of court which would result in separate proceedings for the breach. The police are not involved until the breach has been established. Breach of an antisocial behaviour order, on the other hand, is in itself a criminal offence and the normal powers of the police apply. The interests of justice might well justify the police arresting without warrant an individual for breach of an antisocial behaviour order where the breach involved violence or another criminal offence, just as the police would be justified in arresting an individual for breach of the peace or assault.
The noble and learned Lord gave two examples this evening of when the police might not be able, without such a power, to arrest an individual. As I understood it, the first was that the act itself may not constitute a criminal offence. In that situation, I would be reluctant to confer on the police a power of arrest for acts which
do not in themselves constitute a criminal offence. The other situation was where it may be obvious to the police officers that there is no corroboration of the breach. As the breach of an order is a criminal offence, it would require to be proved to the criminal standard and would require corroboration. If there were no corroboration, I would be concerned that the police had powers of arrest in respect of a charge that they could not prove. Accordingly, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, again I regret to say that I am not entirely persuaded by the noble and learned Lord's reply. As regards my first example of where the activity is not a criminal offence, the noble and learned Lord said that he would be reluctant for a power of arrest to exist in that situation. That may well be the position under Clause 19. As I understand it, it is acknowledged in relation to that clause that, while going to a particular place may not be evidence of a criminal offence, it is a clear breach of the order, for which the public interest warrants having a power of arrest.
My second point in relation to the lack of corrobation was a matter which was considered by the Committee of another place and clearly must have been before Parliament when the provisions for the Matrimonial Homes (Family Protection) (Scotland) Act was passed. Again, therefore, I feel it appropriate to test the opinion of the House.
10 p.m.
On Question, Whether the said manuscript amendment (No. 48A) shall be agreed to?
Their Lordships divided: Contents, 18; Not-Contents, 70.
Anelay of St. Johns, B. [Teller.]
Blatch, B.
Brougham and Vaux, L.
Byford, B. [Teller.]
Cochrane of Cults, L.
Dean of Harptree, L.
Elliott of Morpeth, L.
Harmar-Nicholls, L.
Henley, L.
HolmPatrick, L.
Kimball, L.
Lucas of Chilworth, L.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Mountevans, L.
Renton of Mount Harry, L.
Soulsby of Swaffham Prior, L.
Wise, L.
Acton, L.
Amos, B.
Blackstone, B.
Blease, L.
Brooke of Alverthorpe, L.
Brooks of Tremorfa, L.
Burlison, L.
Carlisle, E.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Clinton-Davis, L.
Cocks of Hartcliffe, L.
David, B.
Davies of Oldham, L.
Dean of Beswick, L.
Dholakia, L.
Dixon, L.
Dormand of Easington, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gallacher, L.
Gilbert, L.
Goodhart, L.
Gordon of Strathblane, L.
Graham of Edmonton, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Kennedy of The Shaws, B.
Kilbracken, L.
Linklater of Butterstone, B.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L. [Teller.]
Mar and Kellie, E.
Merlyn-Rees, L.
Monkswell, L.
Montague of Oxford, L.
Nicholson of Winterbourne, B.
Nicol, B.
Pitkeathley, B.
Prys-Davies, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L. [Lord Privy Seal.]
Sewel, L.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thomas of Gresford, L.
Thomas of Macclesfield, L.
Varley, L.
Watson of Invergowrie, L.
Whitty, L.
Williams of Mostyn, L.
Winston, L.
Resolved in the negative, and amendment disagreed to accordingly.
10.7 p.m.
Clause 19 [Sex offender orders]:
The Earl of Mar and Kellie moved Amendment No. 49:
The noble Earl said: My Lords, this amendment spells out what is probably implicit in the Bill and sets slightly higher standards for the making of sex offender orders. The inclusion of the words "necessary for public safety" is much clearer than the word "appropriate" when it comes to describing why a sex offender order should be made. This will ensure that sex offender orders are used only for convicted sex offenders who are intending to reoffend or whose actions suggest that they are very likely to do so. That is typical of a paedophile who does not accept that what he wants to do is utterly wrong.
I do not believe that sex offender orders are intended for all convicted sex offenders. The use of "proved beyond reasonable doubt" clarifies that sex offender orders should be used only when the individual is continuing to behave in an offending manner. It would be wrong to place convicted sex offenders on sex offender orders on the basis that they might continue their offending behaviour. They are already subject to official monitoring in various ways--for example, by the need to register with the police, or by being subject to extended post-imprisonment supervision, or indeed by participation in treatment programmes within a probation order. This amendment makes all these points admirably clear and will establish what is really intended. I beg to move.
Lord Mackay of Drumadoon: My Lords, Amendment No. 49 is grouped with Amendment No. 50 in the names of myself and my noble friends. My amendment seeks to put in very similar, but not identical, terms the point made by the noble Earl in Amendment No. 49. We seek to provide that when the sheriff makes an interim sex offender order the same legal test should be applied as that which he is required
and that it is the same high test which is necessary before an interim order is pronounced.
When this matter was debated in Committee, as I recollect it the noble and learned Lord the Lord Advocate said that he would not wish to unnecessarily fetter the sheriff's discretion when dealing with interim orders. But the same legal test ought to apply because once the order is pronounced the same criminal sanctions will apply if the offender breaches it. I believe that it would be wrong to have a lesser or more discretionary test available at the interim stage than that which requires to be followed when a permanent order is pronounced. For that reason I support the amendment moved by the noble Earl.
Lord Hardie: My Lords, these amendments 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 in the interests of public safety or to protect the public from serious harm.
As I indicated during our discussions of the identical or very similar amendments in Committee, I would not wish to restrict the sheriff's discretion over interim orders in this way. The noble and learned Lord, Lord Mackay of Drumadoon, has referred to that tonight. It is of course our intention that the sheriff would look to the purpose of the provisions of the clause, namely, public safety grounds, to enable him to reach a decision on whether an interim order was appropriate. It is important to remember the distinction between an interim order and a final order and what information is available to the sheriff at that stage.
We would be concerned that a requirement for the sheriff to be satisfied as to the "necessity" of the interim order would impose too high a burden on the applicant at the interim stage when it is not possible to have a full hearing of evidence. What information would the sheriff need to have before he could be satisfied as to the necessity of the order?
As the noble and learned Lord, Lord Mackay of Drumadoon, will be aware, interim orders such as interim interdicts and other interim orders are usually given on ex parte statements. Would the applicant have to lead evidence before the sheriff could be so satisfied? In view of the nature of the behaviour that the orders are intended to address, we consider that the test of appropriateness at the interim stage strikes the right balance between the applicant's position and the rights of the person who will be subject to the interim order. I do not accept the point made by the noble and learned Lord, Lord Mackay of Drumadoon, that the same requirements ought to be imposed on the sheriff at the interim stage as at the completed stage.
We have to bear in mind the protection of the public in the context of someone who has a conviction for a sex offence. Where a responsible authority has a reasonable apprehension that an order is required, it is appropriate that an interim order should be given on the standard indicated in the Bill. I ask the noble Earl to withdraw his amendment.
The Earl of Mar and Kellie: My Lords, I think that I follow the noble and learned Lord's argument, but it is interesting that we have had two debates to try to define what "appropriate" means. I find it difficult to accept that the sheriff might make an interim order if he does not think it necessary for public safety. I should have thought that the point of the orders was that they were necessary. However, perhaps I am expecting the interim proceedings to have more information before them and to be less of an emergency measure. If they really are an emergency measure, I can probably accept what the noble and learned Lord has said about them. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 50 and 51 not moved.]
Page 15, line 45, leave out ("appropriate") and insert ("necessary for public safety").
"reasonable cause to believe that an order ... is necessary to protect the public from serious harm from him"
10.15 p.m.
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