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Lord Hylton: I much appreciate the spirit and intention that underlie the amendment. However, it seems probable that many of the people complained about will be children or young people for whom it will be much harder to show that their actions were reasonable than it will be for adults. I should be interested to hear from the Government how that difficulty may be overcome.

Lord Goodhart: I believe that Amendment No. 13 is defective in two ways. First, it will apply only where the defendant's actions are reasonable whereas it should apply also to circumstances where the actions are not entirely unreasonable but the misbehaviour itself is trivial. An example might be when someone produces cooking smells from a flat which cause genuine distress, but not serious distress, to the neighbours. That is not behaviour which should be capable of being made the subject of this very powerful order. Amendment No. 13 should therefore apply not only to actions which can be proved to be reasonable but also to actions which in the circumstances do not justify proceedings before a magistrates' court.

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The second defect in the amendment is that it puts the burden of proof on the defendant to show that his actions were reasonable. Surely the burden of proof ought in general to be on the applicant for the order to show not only the existence of something technically within the present definition of "antisocial behaviour"--namely, something which caused alarm or distress--but also that it was likely to cause a level of alarm or distress sufficiently high to justify the making of an antisocial behaviour order.

Those defects led me to prefer the formula in Amendments Nos. 3 and 4 which I moved and withdrew at an earlier stage of the debate. I ask the Government to look carefully at what I consider the potential defects in the amendment to see if something more effective can be drafted to deal with the subject more thoroughly.

Baroness Warnock: The intention of the amendment in seeking to limit the possibility of triviality or misunderstanding falling within subsection (1)(a) is very good. However, I wonder whether the noble Lord, Lord Williams, will consider the use of some alternative to the word "reasonable". Noble Lords will be expecting a lot of orders to be made against young persons, as has already been said. The problem is not only that they will find difficulty in proving that what they did was reasonable but also that a lot of the things that they do are not particularly reasonable but are done out of thoughtlessness or high spirits or some other defect of youth which may well cause the required degree of exasperation or distress. I believe that some other way of limiting the definition of what falls within subsection (1)(a) other than having to prove that the behaviour complained of was reasonable should be incorporated in this kind of amendment.

6.45 p.m.

Lord Williams of Mostyn: I am obliged for those comments. Obviously, when dealing with a new remedy magistrates' courts will have to adapt their procedures, particularly when defendants are not represented. It seems to me that the Magistrates' Association would undoubtedly wish to join in the consultations with the aim of giving indications to magistrates about how to deal with children and young persons or people who may be inarticulate and not assisted.

On the increasingly inflexible model that our courts adopt, I see no difficulty in a court itself being a shade more proactive and finding out from someone who is disadvantaged what the true circumstances are. All that has to be shown by the defendant on the civil balance of probabilities is that his action was reasonable in all circumstances.

For a number of reasons, I do not believe that cooking smells will be a difficulty in practice. First, the order cannot be made except within the constraints of Clause 1(1)(b); namely,


    "that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused ".

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In the inquiry into the smell, whatever kind of smell it was--Kentucky Fried Chicken or tandoori lamb--surely the defendant would say, "But I have planning permission; I have complied with the building regulations; I have met all the constraints which the local authority put upon me. This is just trivial." I suggest that such a complaint would not get beyond the first stage of local authority approval.

As far as concerns domestic smells--for example, if someone does not like the smell of fishcake batter wafting over the garden, or the barbecue irritates the next-door neighbour--I stress that this law is not for those eventualities. I believe that someone going to the local authority or the chief police officer in those circumstances would receive a very short answer. I delete any expletive that might be added to the advice given. It is plain that, if one wants to be fanciful, one can produce all kinds of difficulties about what is intended to be a useful measure of public support.

I say in answer to the noble Baroness that, of course, young people are sometimes thoughtless and their behaviour just high spirits. In those circumstances there would be no question of an order being capable of being made because the situation would not fall within Clause 1(1)(b) or Clause l(5). This provision is being introduced to safeguard the defendant's interests. Examples can be conjured up but they are simply the product of imagination.

On Question, amendment agreed to.

Baroness Hilton of Eggardon moved Amendment No. 14:


Page 2, line 16, at end insert--
("( ) When considering an application for an order under subsection (1) above, the court shall take into account evidence provided by a relevant authority that witnesses are being or may be intimidated.").

The noble Baroness said: I rise to move Amendment No. 14 but perhaps I may revert for a moment to the previous amendment. The earliest dispute between neighbours to which I was called did relate to cooking smells, but in a tenement in Cable Street, not the kind of middle-class scenario described by the noble Lord, Lord Williams, of barbecues in gardens.

Amendment No. 14 is another of my amendments to which I think the noble Lord, Lord Williams, has already provided an answer. This one relates to placing on the face of the Bill the possibility of having so-called professional witnesses. As the Minister said earlier, the people who are harassed and distressed are often themselves poor, vulnerable or inarticulate. It is therefore important that courts should accept evidence from housing managers, police officers and other professional witnesses before an order is made.

This probing amendment is also intended to allow the Minister an opportunity to tell us about the progress of the working group which is looking at the problem of witness protection where witnesses are harassed or threatened or are afraid to give evidence. I beg to move.

The Earl of Mar and Kellie: I wish to express some support for this amendment. It is important that we

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dispel the myth that defendants will not know who is complaining about them. I believe that the process of investigation, which I am certain will include some form of attempted mediation, will ensure that it is not possible to make a secret complaint and that, although the complainant may not have to go to court, he or she will be well known to the defendant. We should not be under any misapprehension that such a degree of protection will be possible.

Lord Falconer of Thoroton: In dealing with the amendment of my noble friend Lady Hilton and her point on cooking, I should say that people in all parts of the world and from all social groups cook.

The amendment identifies a real problem with which, in part, the creation of the antisocial behaviour order sought to deal. As my noble friend pointed out, the need to protect witnesses who are the victims of antisocial behaviour should be dealt with to some extent by the fact that professional witnesses can give evidence of those matters that are necessary to make out the claim for the order. That was in the minds of the draftsmen. As my noble friend Lord Williams said, in those circumstances there is strictly no need for the relevant authority to call an intimidated witness; the position can be dealt with by calling what my noble friend Lady Hilton described as a professional witness. To a large extent that is dealt with by including the words in Clause 1(1)(a),


    "caused or was likely to cause harassment".
A description can therefore be given of the kinds of events that are taking place.

I fully take on board the point made by the noble Earl, Lord Mar and Kellie; that is, that a case must be made out, and in many cases the making out of the case will identify to the respondents to the application who the complainant or complainants are. The position of the vulnerable witness, both in relation to court and in relation to their protection in a wider sense--namely, from intimidation before or threats after--is being dealt with by the interdepartmental review concerned with vulnerable witnesses which the Home Secretary announced in another place on 13th June.

The review is wide ranging and covers procedures relating to the investigation stage through to the trial itself and beyond. The work of the review is nearing completion. A further meeting is to take place in March and we expect some product from the work not long after that. I believe that deals both with the point in relation to the amendment and also with the inquiries involving the working group on witnesses. In those circumstances, I hope that the amendment can be withdrawn.


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