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Anti-social Behaviour, Crime and Policing Bill — Second Reading

Part of the debate – in the House of Lords at 7:37 pm on 29th October 2013.

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Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 7:37 pm, 29th October 2013

My Lords, I wish to speak briefly on two issues. The first relates to Part 1 and in particular to the threshold that Clause 1 sets regarding the power to grant an injunction under it. The second issue relates to the test in Part 13 regarding compensation for miscarriages of justice under Clause 151. Of the two, the first issue is much the most important because Clause 1 will enable a court to grant an injunction against a person aged as young as 10, and because of what the breach of such an injunction, whatever the person’s age, may lead to.

Of course there is a real social problem about anti-social behaviour that must be addressed, as the noble Baroness, Lady Newlove, in her moving speech reminded us. However, one must surely be very careful to set an appropriate threshold for what constitutes such behaviour within the meaning of the statute. What is or is not appropriate will depend very much on the context. The nature of any sanction and its consequences will be crucial to that decision. What is proposed is the granting of an injunction to stop the behaviour. An injunction is one of the most powerful weapons in a court’s armoury, never to be granted lightly because a breach of an injunction will be treated as a contempt. Here Clause 86 tells us that a breach may lead to recovery of possession of a dwelling house in which the child lives or which he visits, which could have damaging effects on the family life of others who are living there. Indeed, it may affect whole families, as the noble Lord, Lord Dholakia, told us. Schedule 2 tells us that it may lead to the person’s detention. These are very serious matters. I have never, in all my 40 years of experience, heard of a court granting an injunction against a child, let alone one as young as 10, so to provide for this by statute is a very significant step, not to be taken lightly. If a court is to be enabled to do what is envisaged by this clause, three things surely are fundamental to the way that the power may be exercised. First, the threshold must be set at an appropriate level; secondly, the court must be satisfied that the person fully understands what he is being told to do or not to do; and thirdly, the language of the court’s order must be clear and precise so as to leave no room for doubt on that matter in that person’s mind.

Let us take first the threshold that appears in subsection (2). Every word used here to describe what the person has been doing, or is threatening to do, is important. We find the words “conduct capable of causing”, “nuisance or annoyance” and “to any person”. Contrast that phrase “nuisance or annoyance” with “harassment, alarm or distress”. Why is the threshold being reduced so much? Will the Minister explain the problem that has led to the decision to do this? It is a very significant reduction, let there be no doubt. I have searched the case law over the past 50 years as much as I can, for some guidance as to what a court would be likely to make of this formula. Most cases where the issue has arisen are about noise: shouting, banging doors, loud quarrels between people. However, it does not have to reach a very high level to fall within the expression “nuisance or annoyance”. Those two words, “nuisance” and “annoyance”, are put together as if they are a reasonably high threshold. However, the two words mean the same thing; putting the two together does not add anything. That which is a nuisance will annoy, and that which annoys will be a nuisance. Let us face the fact that this clause is simply dealing with people who are thought to be a nuisance.

Mention will be made, no doubt, of judicial discretion. There is a case in the books, from 1958—Raymond v Cook—that illustrates the problem. It was a case about an ice-cream man. His chimes disturbed the sleep of two night workers who had to sleep during the day. They complained, and the magistrate found the ice-cream man guilty of causing a nuisance. The Court of Appeal had a look at the case and refused to interfere, as it said that this was a matter of fact for the magistrates. It was not necessary to prove that the inhabitants generally were annoyed. The defence led people from the neighbourhood who said that they were not disturbed at all by the ice-cream van, but that made no difference: those two night workers found it to be a nuisance.

What then of the formula used here, of,

“conduct capable of causing nuisance or annoyance”,

and the words “to any person”? Even the best behaved children are often noisy. Are children whose noise when playing wakes up people who have to sleep during the daytime to be exposed this regime? I cannot believe that the Minister really intends that. If that it is so, surely that should be made clear. Even injecting “serious” into the phrase would help to some extent, but surely it would be far better to retain the ASBO formula unless something is demonstrably wrong with it. Indeed, we find it used in Clause 21(3) for criminal behaviour orders. At the very least, an explanation will be needed in Committee as to exactly why the threshold is being so drastically reduced.

It is also disturbing to find nothing in Clause 18 about the making of special rules for cases involving children under 15 or persons with mental disabilities. Should the court not be required expressly to explain the purpose and content of the injunction, to ensure that children and other vulnerable people really do understand what the order means and what its consequences will be if it is breached? The rather loose wording of Clause 1(4), which uses the words “do anything” in relation to what may be put into the order, is another point of concern. These prohibitions and requirements ought to be related precisely to the behaviour that has given rise to the injunction. These points are just as valid, whatever the wording of the threshold may be that must be crossed.

I turn very briefly to Clause 151, concerning miscarriages of justice. Of course the number of cases likely to be affected will be very few, but it is important that we get the wording of the clause right and, as the noble Lord, Lord Faulks, said, this is quite a difficult issue. The Supreme Court examined the issue in Adams. I must declare an interest, as I was a party to that decision. We will of course discuss the issue much more fully in Committee, but I will make two points now. The first is that I do not claim any primacy for the majority view in that case at this stage. I believe that it is right that Parliament should take a fresh look at this issue and should do so with an open mind. It is also right to seek to promote clarity and certainty in this difficult area.

The second point, which follows very much what the noble Baroness, Lady O’Loan, said a moment or two ago, is that it is at least doubtful whether the test that this clause lays down will cover all cases of miscarriage of justice where it is just that compensation should be available. It is not difficult to envisage situations where sheer proof of innocence, whatever the standard might be—it does not really matter whether it is beyond reasonable doubt or just on the balance of probabilities—will be simply unattainable. No doubt there will be cases where DNA evidence will resolve the issue. However, that evidence may have been lost or disposed of, and not all crimes are open to proof of guilt or innocence by that kind of evidence. It may, in the end, simply come down to one person’s word against another’s and, if you are dealing with the evidence of a wrongly convicted person who was not believed by the jury which convicted him, how can his word alone be enough to prove his innocence?

These are difficult issues. We will come back to them, and I am sure will examine them with very great care, when the time comes in Committee.