Violent Crime Reduction Bill |
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Clause 1 Drinking banning orders 9.30 amLynne Featherstone: I beg to move amendment No. 110, in clause 1, page 1, line 9, at beginning insert
The Chairman: With this it will be convenient to discuss amendment No. 116, in clause 1, page 2, line 17, at end insert—
Column Number: 12
Lynne Featherstone: Amendment No. 110 is a technical amendment referring to amendment No. 116. I am concerned that vulnerable people may be subject to drinking banning orders. As we have seen with antisocial behaviour orders, they could be inappropriately served on vulnerable people, such as those who have mental health issues or alcohol issues. That is a particular concern, given that orders could be applied arbitrarily or disproportionately. Without the amendments, the orders could be used for a purpose for which they were not intended. For example, an ordinary member of society, or even a police officer, might see a person with Asperger’s syndrome or Tourette’s syndrome in a public place and think that they were being disorderly or creating some sort of disturbance that could be construed as being a subject for a drinking banning order. Of course, such an order would be totally inappropriate. I know of an example in which an alcoholic man was served with an ASBO, which has escalated to a sentence of five years. Such a situation would be inappropriate, too. There is also the issue of whether an individual has the ability to comply with a drinking banning order. That ability might be constrained if the person had a mental health issue or was an alcoholic, for example, and such irrationality in the person would render the order arbitrary. In such cases, detention or a custodial sentence consequent on a breach—or suspected breach—of an order would, in our opinion, be contrary to article 5 of the European convention on human rights. We need to be satisfied that the court is aware of that individual’s status. The amendment would mean that the court was made aware as by right. That way, the provision would be about stopping the unlawful minority, as the Minister says, and not about punishing those who are not capable of complying with the law. Column Number: 13 Mr. Malins: I think that I speak for all of us when I say that I am most grateful to the hon. Lady for introducing the amendment. She highlights an issue of some importance, but having looked at the matter carefully in the last day or two, I do not think that the amendment can quite have my support. I declare an interest—I should have done so earlier—if, indeed, it is one. I have been a lawyer and sit as a part-time district judge and Crown court recorder. My work in that field has made me very familiar with the issues of mental illness in relation to courts. It is important to distinguish between two types of defendant. At the London courts where I sit—Camberwell, Bow street, Horseferry road or wherever—those who have been drunk when they have offended fall, broadly speaking, into two categories. The first is comprised of those persons whom one looks at and says, “This is hopeless; there is nothing that can be done”. Such people live on the streets, have a mental illness and are so vulnerable—that was the word that the hon. Lady used—that there is not a single sentence that a court could impose that would help in any way at all. It is as bad as that. The second category is of people who are different from that; they are without mental illness, have offended because of alcohol and can be dealt with in a certain way. However, the hon. Lady referred to the very vulnerable, and I understand her point only too well. I do not quite support the hon. Lady’s amendment No. 116 because its effect would be that a court would have to receive a report on the relevant person before a drinking banning order was made. In my judgment, that could be bureaucratic; the court would appear to have its hands tied. It would be considering a drinking banning order but be required to have a report. The court ought to have a wider discretion. In many cases, one would not need a report because one could summarise the nature of the defendant, who might be, to use a bit of slang, “up together” in every sense, but have offended in a way that is connected with alcohol. One could then move forward smoothly to the drink banning order if one felt that to be appropriate. On the other hand, one sees cases for which a drinking banning order would be no use at all because of the extreme vulnerability of the person concerned. The other slight problem is that if one is to have a report every time one makes such an order, that will take a lot of time, and I think that the Minister will be concerned about that. Such reports nowadays are prepared by people working for what we call the probation service, although it sometimes has a new title; they are the same people working desperately hard. They are awfully underfunded and the reports can take weeks. That is a debate for another day. How could the probation officer get in touch with the most vulnerable people so that a report could be prepared? That is a practical handling exercise. I have sat in court and asked for a report on a certain person, but the questions, “What is your mobile phone number?” and, “What is your address?” are completely irrelevant—the person has no mobile
The amendment tabled by the hon. Member for Hornsey and Wood Green is excellent in many ways. Importantly, it highlights, at an early stage in our deliberations, the position of the most vulnerable in our communities. Let us not be mistaken: there are many of them. However, would it not be more appropriate if the amendment No. 116 read, “Before making a drinking banning order, a court may ask for a report from an appropriate officer”? That would be an extremely sensible approach. John Thurso (Caithness, Sutherland and Easter Ross) (LD): May I say at the outset what a pleasure it is to serve again under your chairmanship, Mr. Forth? I declare a general interest to the Committee. [Interruption.] I shall leave the firearms bit until later. My general interest relates to alcohol. I have held a licence and am still involved with a number of bodies in the licensing trade. The Minister has had correspondence from the British Hospitality Association and others. I shall be raising that later, but I should like the Committee to know about my background. I support the amendment tabled by my hon. Friend the Member for Hornsey and Wood Green. I was grateful to hear the words of the hon. Member for Woking about the amendments, and the general tone with which he welcomed it. I appreciate his suggestion that “may” may be more appropriate. The critical issue concerns vulnerable people, and I hope that the Government will take it on. I do not for a moment suspect that, with the limited means available to us, we have got the amendment right, but I hope that the Government will consider it. I do not want to get into a long and sterile, if wonderfully parliamentary, debate about “may”, “shall” and so on, but my concern is that if “may” applies, “may not” also applies. The problem is that the court “may not” and the whole point of what we are seeking to do might be lost, although I agree with the hon. Gentleman that placing an obligation of yet more paperwork, when it is clear that the person being dealt with is absolutely fine, needs to be considered. Almost my first engagement shortly after I was elected to this place was with a mental health charity in Sutherland. I have been consistently and constantly surprised at the degree of mental health problems in our society and the number of people who suffer. That touches almost every family in the country and I have personal experience of such problems. One member of my family was alcoholic but has now recovered and an in-law member of the family suffers from Tourette’s, which is an extraordinary syndrome. It is interesting to note that the disability discrimination legislation applies to Tourette’s, but none of us has found a way of implementing it. When it comes to matters of criminal justice, we must separate people who set out with criminal intent and should be punished from those who suffer from a condition. My hon. Friend’s amendment, if not perfectly worded, certainly raises an important issue, and I hope that the Minister will consider it. Column Number: 15 Mr. Clappison: As my hon. Friend the Member for Woking has done, I must declare an interest as a member of the Bar. Mr. Kevan Jones (North Durham) (Lab): What sort of bar? Mr. Clappison: The English Bar. I hope that the Committee will not think that I am becoming part of a lawyers’ club with my hon. Friend—[Hon. Members: “Never!”] I am glad to hear that. There was a great deal of common sense in what my hon. Friend said, drawing on his experience as a solicitor and a recorder of the Crown court. I have a lot of sympathy with what the hon. Member for Hornsey and Wood Green is trying to achieve because it is important to protect vulnerable people in such circumstances for all the reasons that she gave. I would have more sympathy with her amendment if it would give discretion to the courts. This is an area where we could trust the courts to exercise discretion as to whether there should be a report. To require a report to be prepared in every case is slightly out of proportion and would create a disproportionate work load for the National Offender Management Service and the other bodies mentioned in the amendment. I have some sympathy with the hon. Lady’s amendment, but I think it slightly offends against common sense. Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): Perhaps I should declare an interest because I live in Hackney where junkies and alcoholics hang around the streets all the time, so I am self-interested. Although I appreciate the thinking behind the hon. Lady’s amendment, I suspect that she is referring precisely to people with alcohol, drug and low-level mental health problems. On one hand, there is an issue about the social support, care and aftercare we offer to people, but the reality is that if I went back to Middleton road in Dalston and said, “Yes, Hazel Blears is bringing in a drink banning order but, no, she cannot get rid of the alcoholics who hang around at the end of the road every day”, people would ask what the point was. Hazel Blears: The two amendments tabled by the hon. Member for Hornsey and Wood Green would introduce a new requirement—I stress “requirement”—before a drinking banning order could be made because it would require the court to obtain a report. That is the point that the hon. Member for Woking made. Let me set out the purpose of the drinking banning order. We aim to deal with the widespread problem of binge drinking on Friday and Saturday nights not only in town and city centres, but in many rural market towns and on suburban estates, where people often gain access to alcohol from off-licences, as well as from pubs and clubs. The order is aimed at such excessive behaviour, which every one of us will have witnessed for ourselves if we have been out in the early hours in our local communities—in the interests of research, I am sure. I know that I have witnessed such behaviour. Column Number: 16 9.45 amWe are trying to ensure that there is a change in behaviour. The orders are intended to apply for a minimum of two months, which is a relatively short period, to make people face up to the behaviour in which they have been indulging. The vast majority of people who indulge in binge drinking on Friday and Saturday nights go out deliberately to get as drunk as they can. Many of them hold down pretty reasonable jobs during the week and do not necessarily fall into the category of vulnerable alcoholics, although I am not saying that there is not a small minority of such people. The vast majority of people behave quite properly when they are sober, when they go to work and when they are with their families. On Friday and Saturday nights, however, something happens to them under the influence of huge amounts of alcohol, and we then see disorderly behaviour, which often veers into violent crime. That is what the drinking banning orders are aimed at; they are intended as a short sharp shock to make people confront their behaviour. Some of the conditions that we envisage in the orders would relate to not going into certain pubs, and it ought to be possible to comply with such conditions. We are simply trying to protect decent people who want to enjoy a good night out drinking with their friends on a Friday or Saturday night without being met by the prospect of people careering around the streets in a complete state of alcohol disarray and indulging in the behaviour that we have seen all too often. I should make it clear to the Committee that the orders are aimed at such excessive behaviour. Mr. Malins: The nature of binge drinking is, of course, a debate for later, but the Minister has outlined a scenario. What is wrong with a combination of the good enforcement of existing law and antisocial behaviour orders? Hazel Blears: ASBOs are for a minimum of two years and are designed to attack a range of more complex antisocial behaviour than simply the problems that arise from binge drinking. We have provided for the drinking banning order to apply from a minimum of two months—where somebody just needs to be confronted—to a maximum of two years. It is therefore a different kind of order, which is specifically focused and targeted. Let me deal now with the issue of vulnerable people, which was raised by the hon. Member for Hornsey and Wood Green. There may be isolated individuals with mental health problems and the difficulties outlined by the hon. Member for Caithness, Sutherland and Easter Ross, and there is no reason why we cannot deal with those issues in guidance, rather than in the Bill. I draw Members’ attention to the guidance that we have issued on ASBOs, which already provides that local authorities are under a duty under the National Health Service and Community Care Act 1990 to assess any person who might be in need of community care services. If there is any evidence to suggest that a person who will be the subject of an order has drug, alcohol or mental health problems, the local authority is under a duty to provide support. The guidance that
I am particularly conscious of such issues in the case of young people. Drinking banning orders are also different from ASBOs because they do not apply to youngsters aged between 10 and 16, but only to those aged 16 or above, and that is a key difference. None the less, some 16 and 17-year-olds might be vulnerable, and there is no reason why the youth offending team and the local authority should not get together to see whether support needs to be provided and then to put it in place. We can provide for that in guidance, rather than making provision in the Bill. What I do not want is a sense in the courts that drinking banning orders will be complicated and that the courts will have to get a range of reports on every single case. I want the courts to use these orders proactively when they have someone in front of them. If they think that these orders can really help to change the culture of binge drinking, I want them on the case, looking at the tools that they have and using these orders. In the isolated cases in which people need extra support, it can be provided. The police must consult the local authority when they are going to make the application. That is the point at which, if those issues are raised, it will be necessary to see whether support should be included. John Thurso: What the Minister has said goes a long way to dealing with the problem that we have raised. I am sure that my hon. Friend the Member for Hornsey and Wood Green will take into account everything that the Minister has said. She mentioned the word “guidance”. Clearly, good guidance would obviate the need to include a provision in the Bill. Will such guidance be available to the Committee before we finish our deliberations? If not, at what point in the progress of the Bill will we be able to see it? Hazel Blears: I am not able to give that assurance. I can certainly assure the hon. Gentleman that guidance will be prepared on how the drinking banning orders should proceed. That will, I am sure, largely mirror the guidance on antisocial behaviour orders. Mr. Prisk: The Minister responded to my hon. Friend the Member for Woking by saying that an ASBO would be inappropriate because of the two-year period. However, I am sure that you, Mr. Forth, will have spotted that clause 1(5) states:
I can envisage a scenario in which someone might be banned for 22 months under the proposed order. The difference between that and my hon. Friend’s suggestion would be a mere eight weeks. Will the Minister reflect on the fact that using existing law is often better than creating new law? Hazel Blears: I entirely accept that where provisions exist we should use them, and that we should promote new law to deal with new circumstances. I thought that I had made it clear that there are significant differences
Mr. Prisk: The maximum is two years. Hazel Blears: The maximum is two years. I do not accept the hon. Gentleman’s contention that every drinking banning order should be for two years. A drinking banning order that is in force for six months may well suffice. If someone who loves to go to the pub with their friends on a Friday and Saturday night is banned from doing so for three months, that may be sufficient to persuade them to think “Next time I go out with my friends I will not get in that state again and cause that kind of crime and disorder.” Mr. Clappison: I am sure that the Minister is right to say that antisocial behaviour orders cover a wide variety of types of behaviour and can cover complex situations. She has described a very specific situation as regards drinking—in which someone goes out, drinks too much, and causes trouble. Yet orders can be made for a wide range of periods—from two months to two years. What sort of factors does the Minister think should determine the length of a banning order? The Chairman: Order. I detect that the Committee is now drifting somewhat from the substance of the amendments. I am sure that opportunities will arise to debate time frames. Please will the Committee now stick to the substance of the amendment. Hazel Blears: I have nothing to add except to say that the matter can be set out in guidance, which we hope to have later this year. I cannot be any more specific, and I ask the hon. Member for Hornsey and Wood Green to withdraw the amendment on the basis of the assurances that I have given. Lynne Featherstone: I am grateful to the hon. Member for Woking for making it clear that I was speaking with reference to the most vulnerable people. I am sure that the Minister would agree that ASBOs have been served on vulnerable people, which was not the intention. The Liberal Democrats want to create protection against that. I do not want to overdo things and tie the hands of the courts, and on later clauses I shall deal with the matter of giving them more discretion than the Bill perhaps does. We in Hornsey and Wood Green share with the hon. Member for Hackney, North and Stoke Newington (Ms Abbott) the desire to clear our streets and make them walkable and safe for ordinary law-abiding citizens, but I do not think that that conflicts at all with the protection of the most vulnerable people. Column Number: 19 In view of what the Minister said about guidance, and on the understanding that it will go some way to addressing my concerns, I beg to ask to leave to withdraw the amendment. Amendment, by leave, withdrawn. Mr. Malins: I beg to move amendment No. 4, in clause 1, page 1, line 9, after ‘prohibition’, insert ‘or requirement’. The Chairman: With this it will be convenient to discuss the following amendments: No. 111, in clause 1, page 1, line 9, after ‘is’, insert
No. 169, in clause 1, page 1, line 11, at end insert
No. 113, in clause 1, page 1, line 12, leave out ‘must’ and insert ‘may’. No. 114, in clause 1, page 1, line 13, after ‘considers’, insert ‘appropriate and’. Mr. Malins: I shall speak to amendments Nos. 4 and 169, both of which cover the same theme. We have all realised by now that a drink banning order has the effect of banning a person from certain activities. In one sense, that is the beginning and end of the matter—it goes no further. The order will not deal with education or improvement of the defendant’s character. The purpose of my amendment is to enable the court, when making a drink banning order banning a defendant from doing something, to impose on the defendant a requirement to rehabilitate himself or herself, to take appropriate counselling to improve his or her position. Take the example of a defendant who may have a drink problem and who may have committed a crime connected with alcohol. Merely banning that person from entering pubs does not, in itself, go far enough. I am sure that the Committee is not familiar with a most interesting parallel, which is the precedent in the drink-driving laws for a requirement, or an educational aspect of a sentence. Under that legislation, if someone is caught over the limit and pleads guilty or is convicted, they face an automatic 12-month driving ban. The limits of 35 micrograms for breath and 80 millilitres for blood have been around for a long time. Of course, someone who considerably exceeded the limits would get a much longer ban. Bans tend to vary: the minimum is 12 months but they could go to 24 or 36 months. It does not matter what hardship the defendant suffers—that is tough luck. One cannot help the defendant, much as one would like to. What has happened to change that? A pilot scheme began some time ago and has now been extended, as far as I know, throughout the London courts. After a district judge or magistrate says to a defendant, “You’ve pleaded guilty to this offence of drink-driving. You are now disqualified for 12 months”, they are now permitted also to say, “If you wish to pay a fee for a drink-driving rehabilitation course and complete the course properly, one quarter of your ban will
An interesting point is that because the appropriate amount to be deducted from the sentence is one quarter, it is becoming common among those of us who sentence to be extremely careful about the original length of the ban. I once made the mistake of banning someone for 15 months, and we had to adjourn the court to work out a quarter of 15—it took a day to do so. It is now almost axiomatic to ban for either 12 or 16 months, with a straight face, to enable the ban to come down from, for example, 16 to 12. The point is that there is help for defendants. For some who drive drunk, the offence is a one-off—they do not need help—but others who drive drunk would like help, and can get it. The education argument is met extremely simply by the addition of the word “requirement” after “prohibition” so that the provision would read: “may impose any prohibition or requirement”. The sentencing policy of the courts has become most interesting under this Government. I do not like to pay a backhanded compliment, but there is some anecdotal evidence that the vast number of community orders that have been made under section 177 of the Criminal Justice Act 2003 have given the courts a certain flexibility to mix and match different types of sentences. In the good—or bad—old days, a probation order simply meant that one was on probation, which meant no more or less than keeping in touch with the probation officer, receiving visits, making visits and telling the probation officer of changes of address. That was the end of the story. Now the position is very different. There are a vast number of imaginative courses and programmes, from anger management to drink control, that the courts can include in a sentence. That is an important aspect of the idea of placing a requirement on a defendant under a drinking banning order. 10 am |
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