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Lord Henley: My Lords, I have no intention of pressing the amendment today. However, I may wish to return to it at a later stage.

The noble and learned Lord talked in terms of not wishing to restrict the discretion of the court by not setting a maximum; however he does wish to restrict the discretion of the courts in setting a minimum. I should have thought that the courts are the best people to decide whether there might be occasions when a period of less than two years was appropriate. There might be a serious outbreak of antisocial behaviour causing harassment, alarm or distress, but the courts might feel that a period shorter than two years--merely six months or a year--might be appropriate to deal with the mischief and prevent it recurring. It is certainly a matter that ought to be addressed.

Similarly, if the matter is of great seriousness, it is right that there ought to be a maximum period. If it is thought that a period longer than five years is

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appropriate, then possibly other remedies ought to be pursued; or possibly the criminal law ought to be made use of.

Certainly there are arguments that imposing a limit on the courts indicates to them that they should think very seriously about the degrees of mischief that they are addressing between, say, one year and five years. Anything beyond that is a matter of much greater seriousness. One can envisage examples where the problem would be likely to continue for more than five years. I shall return to that minimum and maximum at a later stage because I believe the point is important. This afternoon I prefer to withdraw the amendment with a view to addressing it later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 6:


Page 2, line 25, leave out ("Subject to subsection (9) below").

The noble Lord said: My Lords, any bruising I may feel after the fairly clear rejection of my previous amendment is modified by my conviction that, if both the Government and the Opposition join forces against us, we must be in the right.

I asked for Amendments Nos. 6, 7, 10, 11, 12 and 14 to be grouped together. They deal with two different subjects but there is a common link between them. Amendments Nos. 6, 7, 11 and 12 deal with the exclusion of any power of the courts to discharge an antisocial behaviour order or a sex offender order without the consent of the applicant. Amendments Nos. 10 and 14 deal with the exclusion of the power to order a conditional discharge. They are two different subjects but they have a common theme, which is what I believe to be the Government's wholly unjustified refusal to trust the courts to act properly.

The Government appear to consider that the courts cannot be trusted to exercise the power to discharge an antisocial behaviour order within two years or a sex offender order within five years or the power to order a conditional discharge. My reaction to that is to ask: why ever not?

Let us look first at the power to order a discharge. The court has a discretion to make the order in the first place. As I said earlier, the antisocial behaviour order is a powerful order which should not be kept in place when it is not required. The Minister, the noble Lord, Lord Williams of Mostyn, accepted in Committee on 3rd February (Hansard, col. 575) that there may be changes which fundamentally affect the basis of the order. He gave as an example the teenager who goes to college where he grows up and matures. The noble Lord said that he would expect no difficulty in discharging an order in such a case. I regret that I am not so confident.

The effect of the provisions covered by Amendments Nos. 6, 7, 11 and 12 is to transfer the power of decision over discharge of an order from the court to the local authority or the chief officer of police. I believe that there are three objections to that. First, this in effect turns the applicant into a judge in his own cause, which I believe is wholly wrong in principle. Secondly, a local

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authority is the wrong body to take decisions of this kind. It is likely to be influenced by political considerations of the popularity or unpopularity of the individual concerned and to play safe by refusing consent. Thirdly, I believe that it will create problems for the local authority or chief officer of police.

Since the power of decision has effectively been transferred from the court to the local authority or the chief officer, the local authority or the chief officer will have to consider in a judicial manner whether to consent to the discharge of the order. That decision is subject to judicial review. I believe that it is a burden which those bodies would prefer not to have and which it is not appropriate for them to have. It is surely better that a local authority or chief officer of police should put before the court any evidence that the order is still needed when the subject of the order makes the application for discharge and should be able, through their lawyers, to cross-examine the subject of the order on his evidence that the order is not needed.

The second aspect of failure of trust is the refusal to allow the power to order a conditional discharge. I ask again why on earth the court should not have power to order a conditional discharge. The noble Lord, Lord Williams of Mostyn, said in the same debate that a conditional discharge ignores the original order. He said:


    "We have come to the policy conclusion that if, without reasonable excuse, which is a defence, a breach of the order occurs, it must mean that the defendant has continued in his actions in defiance of the court ... It means that he has a pattern of behaviour that he either cannot or will not control".--[Official Report, 3/2/98; col. 605.]

I believe that that analysis totally ignores the reality of the situation. The reality is that many people will commit minor breaches of antisocial behaviour orders in circumstances where they do not have a reasonable excuse but where they equally have no intention of defying the court. Let us assume that an order requires a particular defendant to be in his house from 9 p.m. onwards every Saturday night because he is a troublemaker who has caused rows in the town centre late on Saturday evenings. He goes to the pub in good time, well before nine o'clock. Unfortunately, he fails to look at his watch and loses track of time. He is caught by the police sneaking back into his house at ten minutes past nine in the evening. Does he have a reasonable excuse? Manifestly, he does not. But is he acting in defiance of the court? Equally clearly, he is not. The fact is that there will be many trivial breaches.

The noble Lord, Lord Williams of Mostyn, admitted in Committee when I put the question to him that the court can recognise that a breach is trivial by imposing a £5 fine. Why on earth, then, can the court not order a conditional discharge in circumstances such as I have described? That is surely a much more useful and appropriate remedy than a purely nominal fine. The court would be saying, "We accept that this is a trivial breach and is not deliberate, but you must be more careful. If you do it again, you will be in real and serious trouble." Why not trust the courts with powers of that kind? Why not give powers to the courts to discharge orders that are no longer needed? Why not allow courts to order conditional discharges?

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No doubt the Government want to prove their toughness. It is, of course, right that seriously antisocial behaviour should be dealt with toughly. But there is a point at which toughness becomes authoritarianism. In restricting the power of the courts in the way proposed in the Bill, the Government have passed that point. I believe that the noble Lord, Lord Williams of Mostyn, knows that as well as I do. I beg to move.

Lord Renton: My Lords, although I was against the noble Lord, Lord Goodhart, on his previous amendment, on which he was defeated, I hope that the Government will give very sympathetic attention to this amendment. We must bear in mind that defendants may have become deeply ashamed of their antisocial behaviour. It may not take them very long to repent. We should not have orders of this kind in force longer than necessary, especially where young people are concerned. The late Lord Wilson of Rievaulx once said:


    "A week is a long time in politics".

I can assure your Lordships, not without some experience, that two years can be a long time in law.

Lord Thomas of Gresford: My Lords, in supporting my noble friend on these amendments, perhaps I may disagree with him on one matter. He says that there is a failure of trust in judges and magistrates on the part of the Government. I do not believe that there is a failure of trust. If there is a failure of trust in judges and magistrates doing their job properly, there is no objective evidence to justify it. Indeed, the evidence is all to the contrary. If the Government want toughness, the gaols are full to overcrowding.

As I see it, there is a continuation of an underlying theme from the last government that there is political capital to be made in castigating the judges as soft and projecting the Government as being tough. That is the theme that has run all the way through from mandatory sentences in the period of the last government to the restrictions on the powers of judges and magistrates as contained in the Bill. There is nothing to support that. For those reasons I ask the Government to think again and leave the discretion to the magistrates and judges to do what is appropriate and right in terms of these orders.


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