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The Earl of Onslow: Perhaps the noble and learned Lord can help me once again. Let us assume that we have a case of a frightened couple who have a gang of yobs running up and down the street, making noise and generally causing mayhem. The couple go to the local authority who, with police support, say that it must stop. So far so good.

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However, the gang of yobs says, "We are not a gang of yobs. We are the Salvation Army and all we have been doing is walking about singing hymns". Somebody must provide proof. Will not that be difficult when one has what is hearsay evidence? I ask this question in a spirit of genuine inquiry. The yob may deny the charge. Do we not then become involved with human rights? The yob may say, "I have had an injunction brought against me by a witness on hearsay evidence".

Does the noble and learned Lord see where my mind is going and can he please illuminate me?

Lord Falconer of Thoroton: The couple may go to the local authority or the police saying that a gang of yobs is making their lives a misery and the police or local authority will investigate. If that antisocial behaviour is taking place, it is more likely than not that the police or local authority investigator will be able to see it for themselves. If the gang of yobs then says, "We are actually Salvation Armyists trying to encourage proselytisation in the area", as a matter of reality they can lay that before the magistrates' court and the respondents can evaluate the strength of the claim.

In relation to hearsay, it must be remembered that these are civil proceedings and that in certain circumstances hearsay is admissible by statute in civil proceedings. That does not give rise to problems, as long as it is within the four corners of the Act, under the human rights convention. Though I understand the anxiety expressed by the noble Earl, in reality it will not give rise to a problem in relation to being able to prove the applications and the victim will not have to give evidence. I hope that that explanation is helpful.

The Earl of Mar and Kellie: Can the Minister tell us whether the forms have been made out for antisocial behaviour orders? If so, will there be an automatic condition on the form which says that the person subject to the order shall not make contact with specified people, by whom I mean the complainants?

Lord Falconer of Thoroton: I do not know whether a precise form has been prepared, though I can find out and write to the noble Earl. Whether the form should contain a condition such as that suggested by the noble Earl will depend upon the circumstances of each application. It will be recalled that the form of the Bill is such that the court can make any order with a view to preventing any sort of conduct. It seems to us that if flexibility is what is sought to prevent that happening, we do not want a form which must be used in every case with a specified form of order; we want a magistrates' court to address itself to the specific case and decide what is best to protect the community against that antisocial behaviour.

Baroness Hilton of Eggardon: No legislation will cope with the problems raised by the noble Earl, Lord Mar and Kellie. That is one of the realities of life. But I am

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grateful to the Minister for his response to my amendment. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

Lord Henley moved Amendment No. 16:


Page 2, line 20, leave out ("(not less than two years)").

The noble Lord said: Again, I can speak briefly to Amendment No. 16 which has been grouped with Amendment No. 17 in the name of the noble Lord, Lord Goodhart. The noble Lord spoke on Amendment No. 3 about a lack of trust of the courts in this clause in terms of what discretion was left to them. I take the extreme libertarian view, such as I am, and give the courts total discretion to do whatever they want for as long as they like.

The Government take the view that, whatever the courts do, it must be for two years or more; the noble Lord, Lord Goodhart, puts forward a different variation whereby he gives them full discretion up to two years. I shall be interested, first, to hear the noble Lord, Lord Goodhart, and also to hear the Government's response to these points and why they feel that the discretion of the magistrates' courts should be limited in this matter. I beg to move.

The Deputy Chairman of Committees (Lord Ampthill): I should remind the Committee that, if this amendment is agreed to, I cannot call Amendment No. 17.

Lord Goodhart: I rise to speak to Amendment No. 17. In so far as it proposes that there should be no minimum duration of the order, I support Amendment No. 16. However, the Act should fix a maximum and not a minimum duration of an antisocial behaviour order.

Why is it wrong to impose a minimum duration? The answer is that the order is close to being a form of punishment. The defendant is being told that if he does this or that, he can be sent to prison even though he has broken no general law of the land. Most people against whom an antisocial behaviour order will be made will be young. Two years is a long time in a teenager's life. There will be a great deal of change and development in their personalities during that period. Being subject to an antisocial behaviour order will involve a stigma and is likely to be a matter of local knowledge. In those circumstances there may well be cases in which it would be right to make an order for a term shorter than two years.

It would be absurd to make an antisocial behaviour order that lasts for only a week, but for a young person it may well be reasonable to say, "We are imposing the order on you for a year"--perhaps even as little as six months--"and if you comply with the order and do not commit any breaches of it, then it will come to a stop at the end of that period. But if you go back to your old habits of behaviour, it will always be possible to impose another order on you".

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Why then impose a maximum time for the order? Again I say that the order is very close indeed to being a sentence. It is normal for Parliament to specify the length of a sentence, and that is something it should do here. The effect of the amendment is to make the maximum period of the order two years. I am not specifically wedded to the concept of a two-year maximum--there may be a case for making the maximum length of the order a somewhat longer period--but I do suggest that there is no case for a power to make an indefinite order. If a defendant has had an order imposed on him or her and has complied with it for a period of two years, three years, five years or whatever the maximum length of the order may be, the defendant is surely entitled to have that order lifted and to be treated again in the same way as if he or she were not subject to the order. The order can, of course, be imposed again if there is a resumption of the harassing behaviour. But the defendant should surely be entitled at some point to a discharge from the order in the same way as he or she is entitled at some point, if he or she commits a breach of that order, to a discharge from his sentence. I cannot move my amendment at this stage, although I would if I could.

7 p.m.

Viscount Bledisloe: Perhaps I may raise a point which is somewhat related to this. Am I right in understanding that under subsections (6) and (8) as presently drafted it is impossible for a court to make an interim order pending, let us say, the rehearing of the matter? Is that not a serious defect in the light of the point made by the noble Baroness, Lady Hilton, a moment ago?

Let us suppose that a matter comes before the court. There is prima facie evidence of nasty behaviour which frightens an old lady. The defendant says that he wants to call lots of witnesses, or the court runs out of time, and so the matter cannot be dealt with and has to be adjourned. Surely it is essential that in those circumstances the courts can say, "Right, you can have an adjournment but until we come back you are not to do X, Y and Z". As I understand it, at the moment the court cannot do that because the order has to be for a period of not less than two years and cannot be discharged within that period except with the consent of both parties. If we are to be able to protect the complainant, surely it is essential that when the matter has come to court once and is then postponed, perhaps for reports from the youth authority, an interim order can be made which will lapse automatically when the matter comes back.

The Earl of Onslow: It is essential, especially bearing in mind what the noble Lord, Lord Williams, said earlier on, for flexibility to apply in this case. By imposing a minimum period of two years, one is taking away the very flexibility which is part of the attraction of the scheme. I accept that there is a slight illogicality in the idea of the noble Lord, Lord Goodhart, that it cannot run for more than five years. In other words, you must stop being antisocial for five years and after five years and one day you can go back to being antisocial. There is an element of illogicality about that.

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However, as the noble Lord said, the majority of people who are going to be difficult are young males. Let us be frank about that. It would not be my late great-aunt Vera who was 103. It would not be her. It will be young males. Young males eventually grow up to be either Lord Onslow or Lord Williams of Mostyn. We grow up, we hope, to be sensible human beings and not to behave like yobs. Therefore, it is essential that there should be the flexibility that was attractively proposed by the noble Viscount, Lord Bledisloe. If you take out the two years you give back to the magistrates' courts, which are supposed to be, and are on the whole, satisfactory local justice dispensers, the freedom to give a six-month order, a nine-month order and so on. Therefore, I strongly support the amendment moved by my noble friend.


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