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Crime and Disorder Bill [H.L.]

8.42 p.m.

House again in Committee on Clause 1.

The Deputy Chairman of Committees (Baroness Turner of Camden): I have to inform the Committee that, if Amendment No. 21 is agreed to, I cannot call Amendment No. 22.

Lord Thomas of Gresford moved Amendment No. 21:

Page 2, line 29, leave out from ("order,") to end of line 34 and insert ("his conduct shall be punishable as a contempt of court.").

The noble Lord said: We have exhausted the making of the antisocial behaviour order and we now turn to the next stage; namely, the enforcement of that order. We are now in a position where the Government envisage that conduct which is not necessarily criminal may lead to an antisocial behaviour order, and a breach of that order by conduct which is not otherwise criminal can yet make the offender endure the slam of the prison door.

The word for the day that has percolated our discussions in Committee is "flexible". Everything about this Bill is "flexible", except the noble Lord, Lord Williams of Mostyn, and those supporting him. I hope that the noble Lord will take the trouble to consider, with the open mind that he always promises us he has, the proposal that I put forward by way of this amendment. Its purpose is to substitute a far more flexible and sensible method of dealing with a person who is in breach of an antisocial behaviour order than is set out in subsection (9).

The noble Lord, Lord Williams of Mostyn, has said that the antisocial behaviour order is a civil order; it is no part of a criminal regime; it is analogous to an injunction. One therefore has to wonder why the noble

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Lord does not go "the full Monty" and treat a breach of that order as though it were a breach of an injunction, and therefore a person should be punished by way of a committal for contempt.

Perhaps I may give a lightning sketch of contempt orders. The long-standing purpose of contempt proceedings was to impose sanctions for disobedience to a court order which would coerce the contemnor or offender into obedience. The normal practice, until the Contempt of Court Act, 1981, was to commit an individual to prison until such time as he chose to obey the order; and so committals, in the old days before 1981, were sine die rather than for a fixed term. If the contemnor changed his mind, then he was entitled to immediate release. But following the Phillimore Report of 1974 (Cmnd. 5794) the 1981 Act provided that, in any case where a court has power to commit a person to prison for contempt of court, the committal shall be for a fixed term and that term shall not on any occasion exceed two years in the case of a committal by a superior court, or one month in the case of committal by an inferior--that is, a magistrates'--court.

It is my argument in proposing this amendment that such a method of dealing with the offender has a flexibility that is not available in the sentences of imprisonment set out in subsection (9). First, the court has a discretionary power when dealing with a contempt to suspend the execution of the order of committal for such period or on such terms or conditions as it may specify. We were familiar in the past with suspended sentences of imprisonment. Those have now fallen out of favour; but the power still remains and may be exercised to suspend the execution of an order of committal pending good behaviour or whatever condition the court wishes to impose.

Secondly, and importantly, the court may release the offender before the end of his term of imprisonment either on his own application if he is prepared to purge his contempt and to give undertakings to the court about future obedience to the order, or alternatively on the application of the Official Solicitor, who has a duty to review the cases of all persons who are committed for contempt and to take such action as he thinks fit.

That gives an opportunity to the offender, the contemnor, to come to his senses and, instead of serving a term of up to two years' imprisonment, to come to the court and apologise and give assurances of good behaviour in the future. If he is an obstinate person who refuses to apologise, the Official Solicitor has a duty to step in and may intervene if he refuses to repent but has yet been sufficiently punished.

Subsection (7) in Clause 1 of the Bill provides for an application by the offender to the court to discharge the antisocial behaviour order. Once he is sent to prison, that is it--he is a convicted person; he is a criminal, a person who will not be released until he has served his time.

Another aspect of the contempt order is that a court may, in lieu of imprisonment, impose a fine and order costs against the offender. There is no limit in the High Court or the county court or Crown court; but there is a limit of £2,500 in respect of the magistrates'

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court. In deciding the amount of a fine instead of sending somebody to prison for contempt, the court will consider the culpability of the offender and the offender's means. There is also power in the court to take security for good behaviour and to require the offender to find sureties.

The superior courts, such as the Crown Court, have power to remand an offender for a medical report on his mental condition if there is reason to suspect that he is suffering from mental illness or severe mental impairment and may make a hospital order or a guardianship order. Again, there are provisions for young people if they are committed for detention in a young persons' institution rather than in a prison.

Very importantly, when in prison a contemnor is treated as an unconvicted prisoner and has the same privileges: he may wear his own clothing; he may receive as many visits as he wishes; and he is allowed to receive and send as many letters as he desires.

If this is a civil order analogous to an injunction that he has breached, why does he have to be treated as a common criminal? Why does he have to suffer all the indignities of a convicted person? In prison a contemnor is treated as a separate class of prisoner and is kept out of contact with convicted prisoners unless he expresses a desire to associate with them. First, the sentence can be suspended; secondly, it can be removed on his application; and, thirdly, he is treated as a separate class of prisoner and does not have to mix with other prisoners if he does not wish to do so.

It is a far more flexible order for a civil offence that he has committed--the breach of this quasi injunction. We on these Benches submit that he should be treated in that flexible kind of way. The order itself is described as flexible because it gives a wide discretion to the court. As we argued earlier today, the use of these orders by the magistrates' court is likely to be variable and subject to a wholly unstructured discretion about what to do with disruptive or tiresome neighbours.

Under these proposals a breach of the order is a criminal conviction which will appear upon the record of the individual. He will serve an ordinary sentence of imprisonment and will carry that stigma, even if he is a person who has otherwise been of completely good character.

I wish to say a word about Amendment No. 22, which has been linked with Amendment No. 21, regarding the length of the sentence. In my experience, it is inconceivable that an offender could be sentenced to imprisonment for five years, which is the length of sentence on indictment envisaged in the Bill, for conduct which did not otherwise amount to a serious criminal offence. If he has done something serious, he will be tried for assault, for wounding or for whatever it may be. For a person to be sentenced for up to five years' imprisonment for breaching what is described as a civil order is, in my respectful submission--if I may use that expression in your Lordships' House--scandalous.

If we compare the public order legislation, under the previous Tory Government, what do we find? In the Public Order Act 1986 a violent disorder offence carries

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a maximum sentence of five years' imprisonment. Breach of this quasi-injunction is being equated with a Tory violent disorder provision attracting a sentence of five years' imprisonment. For affray the previous government said that a sentence of three years was the maximum. For threatening, abusive or insulting behaviour, six months is the maximum.

I drew attention earlier today to the Criminal Justice and Public Order Act 1994 which created the offence of intentional causing of harassment by the use of abusive or insulting words or behaviour or the display of any writing, sign or other visible representation which is threatening, abusive or insulting. The maximum sentence for that offence is six months' imprisonment. Even in 1994, when things were going pretty well over the top under the previous government, an offence of a similar nature which also had the ingredient of having to be intentional and having the specific means of carrying the harassment, alarm or distress as part of it carried a maximum sentence of six months' imprisonment.

The ferocity of the sentencing power in this Bill is extraordinary. It can only be window-dressing. As the noble Lord, Lord Renton, said, Secretaries of State vary so much. Indeed, in the past few years we have witnessed rhetoric which distorted the whole of the criminal justice system, pushed up sentences of imprisonment and filled the gaols to overflowing even before their legislation came into effect.

I had hoped that the new Administration would have got over that aberrant period and would not have thought it necessary to inflict even longer sentences of imprisonment than did their predecessors. Ordinary terms of imprisonment are not the answer to the problem addressed in this Bill. Prison will not make the offender truly and earnestly repent and be in love and charity with his neighbours. I beg to move.

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