My Lords, I shall speak mainly to Parts 1 to 6 of the Bill. I remind the House that I sit as a magistrate in central London, although I am speaking in a personal capacity.
The Government are essentially proposing to replace ASBOs with two orders: the IPNA—the injunction to prevent nuisance and annoyance—and the crime prevention order. As we have heard, the IPNA is a civil injunction that replaces a range of current orders and there is a maximum penalty for breach of two years’ custody. The crime prevention order, which will be available on conviction through the criminal courts, has a maximum penalty of five years’ custody on breach.
The Government’s objective is to reduce the number of civil orders available, and to reduce the perceived bureaucracy of the current system. The flaw in the Government’s approach is to have fewer orders covering a wider definition of nuisance and annoyance, and with fewer legal safeguards, in a bid to reduce bureaucracy. The point is forcibly made by the Home Affairs Committee in its February 2013 report on the Bill, which said:
“Each time successive Governments have amended the ASB regime, the definition of anti-social behaviour has grown wider, the standard of proof has fallen lower and the punishment for breach has toughened”.
Annoyance and nuisance in local communities are indeed a blight on people’s lives. I look forward to the contribution from the noble Lord, Lord Pannick, this evening because I am sure he knows better than many about the blight of annoyance and nuisance. I do not mean the noble Lord, Lord Pannick, but the noble Lord, Lord Paddick—although the noble Lord, Lord Pannick, knows about it as well.
Changing the names of orders and tinkering with the definitions may make some procedures simpler. However, changing procedures always leads to agencies having to find new ways to process things and that can be a significant problem. What really matters is that victims have the confidence in the procedures and sentences given, and offenders are deterred from repeat offending.
I read over the Home Office’s White Paper Putting Victims First and I agree with the central two observations: that anti-social behaviour remains stubbornly high, and that victims’ needs are not addressed quickly enough. However, it remains true that there are many thousands of victims who do not report low-level crimes to the police because they have little confidence that they will receive a proper response. My own view on this is that all victims, witnesses and defendants should be able to log on to a website to see the progress of their cases, the requirements of particular sentences and how these requirements may change as the sentence progresses.
I have some personal experience of administering ASBOs and it has certainly been my experience that they have been more appropriately sentenced in recent years. When I first started as a magistrate about eight years ago, it was quite common to have breaches of ASBOs where you could genuinely say that the offender was set up to fail. In my experience, that is less common these days.
The introduction of the proposed changes in the Bill have to be seen in a wider context, and that wider context is the explosion of out-of-court settlements that we have seen over the past 10 years. At present, nearly 50% of all recorded violent offenders receive a caution. I acknowledge that Chris Grayling has made an announcement on this, and indictable-only offences will not be able to be cautioned, and that is a step in the right direction. Nevertheless, that is a huge figure for the number of people receiving cautions for violent offences.
The thing that I believe most profoundly is that there needs to be proper scrutiny of the cautions that are applied. I understand that the appropriate legislation is in place for scrutinising police cautions, but in my experience, this is simply not happening; it is simply not happening here in London. I argue that the proper scrutiny of cautions, so that they are not applied inappropriately, would do more to enhance victims’ confidence in the criminal justice system than changing the names and definitions of particular orders. I believe that is of profound importance.
I, like others, have received the Liberty briefing. Liberty believes that the overuse of ASBOs and similar orders,
“dangerously blur the distinction between serious criminal activity and nuisance, create personalised penal codes that set the young, vulnerable or mentally ill up to fail”,
and can have the effect,
“of fast-tracking individuals into the criminal justice system rather than diverting them away”.
I take the point made in the Liberty briefing, but we have seen exactly the opposite effect, particularly in our youth courts, where we have seen a massive reduction in the number of youths who come to court. Very often, when they come to court, they are up in front of the youth court on very serious charges and have a long and established history of pre-court interventions that have not worked. So there is another side to the story of fast-tracking people into the criminal justice system. Sometimes the criminal justice system does not pick up people appropriately early enough.
I am not saying that Liberty’s point is wrong and that I am particularly right about when people go into the criminal justice system, but I am saying that public confidence is key to the whole administrative process. I believe that poor administration of cases does more to undermine people’s faith in the criminal justice system than any other matter.
I shall speak briefly about three specific aspects of the Bill. The first is Clause 86(5) and covers the point the noble Lord, Lord Faulks, made about the recovery of possession of dwelling houses. I live in the London Borough of Wandsworth. I contacted a local councillor, Tony Belton, about what happened after the riots because Wandsworth was well publicised for trying to evict council tenants where youths under 18 had taken part in the riots. What actually happened is that nobody got evicted in that situation. The council, which is a Tory council, did not pursue the evictions. The only people who were evicted were single men who were sent to prison for long periods of time. So I ask the Minister: what is the problem? That seems to me to be a reasonable outcome. The council did not even pursue the evictions that were so well publicised.
The second point I want to make is about theft from shops where the value is less than £200. There are other pre-court interventions which can be administered. First, there is a penalty notice for disorder where you can be fined £80, and the next is a caution, which requires an admission of guilt, but you do not have to go to court, so it could be on the third or more offence of shoplifting that you get into court. That seems to trivialise the offence. In addition, many shoplifters have drug, alcohol and homelessness problems, and when they come to court they can be picked up and suitable sentences applied.
My third and final point is a very specific point about the victim surcharge for youth offenders. At the moment, magistrates and judges are obliged to put in place the victim surcharge. I have several times had cases where a youth has assaulted their parent or guardian, and because of this order, the court has been obliged to make the parent or guardian pay the victim surcharge when they were the one who was assaulted. It is absolutely ridiculous, but the court has no discretion in the matter.
On the Labour Lords blog today, my noble friend Lady Smith described this Bill as a “Sunday afternoon drive” with,
“many twists and turns and the inevitable dead end”.
I would liken it more to a drive around southern England yesterday afternoon, after the storm had ravaged the countryside. Yes, there are twists and turns and dead ends, but the road map is not very helpful and the Government do not know where they are going.