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Lord Hardie: In reply to the noble Baroness, that is a possibility that will be considered. It will be for the local authority ultimately to decide the form of mediation to put in place. However, I hope that local authorities will call on the experience of organisations such as Sacro and involve them in mediation.

In answer to the noble Earl, we consider that mediation ought to be attempted in most cases. However, mediation may be inappropriate in some cases; for instance, as a result of fear of the victims or the scale of the problem. It would not be appropriate to make mediation mandatory in every case.

The Earl of Mar and Kellie: I am grateful to the noble and learned Lord for that explanation. I can begin to see that mediation, which is desirable in most cases, may not be possible in all. Local authorities will wish

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to build up experience in mediation. That could be done by buying in a service from an organisation such as Sacro, by seeking training from it or by developing experience from their own resources. I expect to return to the matter on Report, but in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 50 not moved.]

The Earl of Mar and Kellie moved Amendment No. 50A:


Page 15, line 1, leave out ("may") and insert ("must").

The noble Earl said: The amendment has been suggested to me by the Law Society of Scotland. It is designed to remove discretion from the sheriff when making an antisocial behaviour order. The effect of the amendment would be that if the conditions for making an order were met, the sheriff would be obliged to make an antisocial behaviour order. The amendment answers the question: why should the sheriff have discretion in this matter when it has been established that the conditions for an antisocial behaviour order have been met? There will be a filtering process at the point of complaint, which is at the offices of the local authority and in consultation with the police. But should there be a second process? Are we uncovering part of a scheme to limit artificially the number of antisocial behaviour orders? I beg to move.

Lord Hardie: Amendments Nos. 50A and 55 would remove the sheriff's discretion, first, over whether an order should be made if the criteria in subsection (1) are met and, secondly, over the order's duration. It is not normal practice to restrict the Scottish judiciary's discretion in this way.

On the duration point, no one who responded to the consultation paper on antisocial behaviour orders suggested that there was any need to change the policy that decisions on the duration of these orders should be at the court's discretion.

The person against whom the order is made can of course apply to the sheriff at any time to have the order varied or revoked. In addition, I understand that the intention is that the guidance on implementing these provisions should make it clear that the local authority applicant should periodically review the continuing need for all orders of indefinite duration and seek to have them revoked when this becomes appropriate.

Amendment No. 54 is intended to allow the sheriff to impose compulsory supervision requirements when making antisocial behaviour orders. This would not be appropriate. These are civil orders to be made when the case for them has been proved on the balance of probabilities rather than beyond reasonable doubt. They are neither a conviction nor a punishment. The orders can therefore prohibit but they cannot require. Any such requirement would run the risk of being in breach of our ECHR obligations.

Although it would not be possible to allow the orders to require compulsory supervision, those subject to the orders will be encouraged to undergo voluntary supervision where appropriate. This will be fully covered in the guidance to which I have referred.

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Amendment No. 86 would require the sheriff to impose a specific duration on every order at the outset, preventing orders being of indefinite duration. It is not normal practice to impose such a restriction on civil orders.

The person against whom an order is made can of course apply to the sheriff to have the order varied or revoked. In addition, the guidance will make it clear that the applicant should periodically review the continuing need for all orders. I invite the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie: I am grateful to the noble and learned Lord. I forgot to speak to other amendments in the group, but I acknowledge the fact that the noble and learned Lord has supplied an answer to them. The Committee will not have to listen to an explanation of why I believe the amendment is necessary. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 51 and 52 not moved.]

Lord Hardie moved Amendment No. 53:


Page 15, line 6, at end insert--
("( ) For the purpose of determining whether the condition mentioned in subsection (1)(a) is fulfilled, the sheriff shall disregard any act of the person in respect of whom the application is made which that person shows was reasonable in the circumstances.").

On Question, amendment agreed to.

[Amendments Nos. 54 to 56 not moved.]

Lord Mackay of Drumadoon moved Amendment No. 57:


Page 15, line 6, at end insert--
("(3D) On an application under subsection (1) above the sheriff may make any interim order under subsections (3) and (3A) as he considers appropriate.").

The noble and learned Lord said: Amendment No. 57 raises what I believe to be an important practical issue; namely, the desirability of making available in Clause 18 provision for an interim order. Under Clause 19(5)(a), such interim orders will be appropriate when applications are being made for sex offender orders. However, there is no similar provision in Clause 18 and the question is, why?

From time to time, in presenting antisocial behaviour orders to the House, Ministers have drawn on the fact that they are civil orders and that some of the issues are similar to those which arise in relation to interdict or injunction proceedings. Indeed, in his previous answer the noble and learned Lord the Lord Advocate stated that in interdict proceedings it is not normal for an interdict to be limited in time. Therefore, it may be instructive to draw on experience in interdict and injunction proceedings in asking and seeking to answer the question whether a court could cope with adjudicating on an ex parte basis with an application for an interim order. I believe that sheriffs, who are to handle those matters in Scotland, are more than qualified to do so.

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The reasons that such an order may be desirable are, I believe, self-evident. One reason is that it may take time for the proceedings, which have been initiated by the local authority, to reach a conclusion. Initially there may be a delay when the person against whom the application is granted seeks to sist the action, as we say in Scotland--to stay the proceedings--to enable a legal aid application to be made. That may take some weeks, if not longer. There is always pressure on courts' time to get diets for hearings of evidence, and from time to time, such hearings have to be postponed because of the non-availability of a witness or witnesses or any other more urgent pressure on the sheriff's time. Therefore, some delay before the action reaches a hearing and a final conclusion may be unavoidable.

I suggest that a further reason is that the very making of the application, albeit that it is brought by the local authority, may serve to inflame the situation. If the occupants of a particular street have complained about the activities of some young men--and for this example, I am quite happy to deal with young men over the age of 16 years--and an application is initiated, the very service of the initiating writ on the persons against whom the order is sought may annoy and irritate them. The first thing they will do, after going to see their lawyer, is to go back to the street where they have been misbehaving, and misbehave again. Far from seeking to protect the innocent members of the public from that criminal behaviour, the situation may be exacerbated.

I accept fully that in such an event, the police may be able to intervene but that applies also in the first instance. The question arises as to why, if a local authority has good prima facie evidence that an order should be pronounced, can the clause not provide an option for the sheriff to consider whether an interim order can be pronounced?

I hope that I shall be forgiven for relying again on the words of the noble Lord, Lord Williams of Mostyn. On the last occasion on which we debated these matters, he referred to individuals who carry out such behaviour as being wicked. That is a sensible description of them and it is one which we should bear in mind when considering to what extent this provision can be improved.

Again, I diffidently mention the name of the noble Lord, Lord Williams, because we were favoured by another of his qualified undertakings and I hope that following the example which he set earlier this afternoon, the noble and learned Lord the Lord Advocate will be able to give a similar undertaking to that which was made at col. 571 of Hansard, if it assists the noble Lord, who I see is urgently searching through his papers. I beg to move.


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