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Lord Henley: My Lords, I have a degree of sympathy for the first half of the group of amendments tabled by the noble Lord, Lord Goodhart, where he is seeking to give a discretion to the courts to discharge an order before the end of the period of two years. I have less sympathy with the second half of the group and would therefore be grateful for a degree of clarification from him when he comes to respond to the Minister as to how he intends to proceed. It is unlikely that we can support Amendment No. 6 if it means supporting all the amendments in the group. As he put it, they divide into two distinct categories.

As regards the first half of that group, though it is not grouped with them, Amendment No. 8 in my name and that of my noble friend deals with this issue in a slightly simpler manner. It leaves all the provisions as they are but gives a discretion to the court--where it is of the opinion that there are exceptional circumstances relating

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to the offender or the offence which justify it in so doing--to discharge an order without the consent of the two parties. However, it makes it absolutely clear that if the court does so, it shall clearly state its reasons.

As I said, I should be grateful for clarification from the noble Lord when he responds to the Minister as to how he intends to proceed with the two categories of amendments.

Lord Falconer of Thoroton: My Lords, as the noble Lord, Lord Goodhart, pointed out, these amendments deal with two different issues: first, they give the court power to discharge antisocial behaviour orders and sex offender orders before they reach the end of their duration as ordered by the court; secondly, they give the court power to order a conditional discharge where there has been a breach of either the antisocial behaviour order or the sex offender order.

Perhaps at the outset I can deal with two completely unfounded points that were made. First, it was suggested that the provisions in the Bill as it is presently drafted indicate that somehow the Government do not trust the judiciary or the magistrates. That is quite wrong. I draw attention specifically to the fact that on the previous amendment the complaint being made was that we were giving too much discretion to the magistrates' court. It would appear therefore that in stage one we are giving too much discretion and in stage two, too little.

I believe that the approach we have taken in relation to both not giving a right to discharge against the consent of the local authority and not saying a conditional discharge is available, is based entirely on matters of practicality, which I hope to make out now. The second point was that we are simply trying to appear to be tough. That is quite wrong; we are simply trying to be practical.

Perhaps I can deal first with the minimum duration of the orders and the issue of discharge before this. The Bill as drafted at present allows for an order to be discharged if both sides agree. Such circumstances for an antisocial behaviour order might include a move to a different area, or a teenager going away to college--the kind of change which fundamentally affects the basis of the order. If there is such a fundamental change, there will be no basis for the local authority or the chief officer of police to refuse to consent to a discharge. As the noble Lord, Lord Goodhart, pointed out, there would be judicial remedies not in the magistrates' court if there was a problem in relation to that. Moreover, even without consent, the orders can be varied to reduce or change their conditions.

We do not believe it would be sensible to go further than that. An order is not a penalty. Antisocial behaviour orders should only prohibit antisocial behaviour, not interfere in the defendant's everday lawful and socially acceptable activities. Such an order carries no criminal record implications. We do not want to open up an area of continued dispute over possible early cessation of the orders, which would be the effect of the amendment. The defendant should be well aware that the kind of activity prohibited is unacceptable to society; he should cease that activity; and the order can run its length without adverse effect.

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To turn to sex offender orders, we need to take a realistic approach. In reality, where an order has been established as necessary and a court has accepted that, the need for it will not go away. The circumstances may change but, unless something exceptional happens, the risk to the public will remain. We could not support the dilution of that position where a matter as serious as this is concerned.

The antisocial behaviour order should not be seen as banning activity which will become acceptable in time. Antisocial activity is simply not acceptable. That is what the order is about. Nor is the need to control the activities of a sex offender likely to change. For those reasons the Government cannot accept the amendments relating to discharge without the consent of the local authority or the chief officer of police.

To turn now to the issue of conditional discharge for breach of the orders, I understand why noble Lords have tabled these amendments since, at first sight, not to allow a conditional discharge for the breach of an order could be seen as fettering the discretion of the court. Let me explain why I do not feel that to be the case.

For an antisocial behaviour order to be imposed, prior to the order the defendant had acted in an antisocial way. We assume that he had not been prepared to stop those actions voluntarily. Though it is not within the legislation, the guidance will make clear that normally other means short of court action, such as mediation, should have been explored. The antisocial behaviour order, as I made clear in the course of the last debate, stands as a last resort against the individual concerned short of, if an offence is committed, invoking the criminal law.

For a sex offender order the defendant's original behaviour, although it may appear trivial, has been sufficient to convince the police and subsequently the courts that there is reasonable cause to believe that the public are at risk of serious harm from him. The prohibitions are justified as necessary to protect the public from serious harm.

This is a clear message to the defendant. The order is saying, "Continue in this behaviour and you will be in serious trouble. If you breach the order, there will be consequences under the criminal law". But to make a conditional discharge following a breach appears to ignore all that. The prohibition on the behaviour is already present in the original order. It does not need to be repeated. And the flouting by the defendant of the authority of the court is ignored.

Let me take the example of the noble Lord, Lord Thomas of Gresford. The defendant has behaved in a specific way which, after mediation and the exercise of all the considerations to which I referred, led to the court making an order which says, "Do not do this. If you do, you will be in breach of the criminal law". He does it. He is in breach of the criminal law and the noble Lord, Lord Thomas of Gresford, is suggesting that the criminal law should say, "If you do it again, you will then suffer consequences". We do not believe that to be

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appropriate. As a matter of commonsense it does not seem to us to be the way to stop people behaving in an antisocial manner.

I should perhaps make one final point specifically on the sex offender order. The defendant has been able to show no reasonable excuse for the breach of the order, where he is convicted of a breach. Without such excuse, the breach of the order means that the defendant has continued in the action in defiance of the court, and in the knowledge that his conduct will be viewed in that way. That suggests that this is a pattern of behaviour that he cannot control. This is a serious matter in relation to sex offender orders, especially in the context of behaviour which has been established as needing to be prohibited because of the risk of serious harm to the public.

For those reasons, after careful consideration, the Government cannot accept these amendments.

4.30 p.m.

Lord Goodhart: My Lords, the noble and learned Lord, Lord Falconer of Thoroton, said that we were being inconsistent in saying that the courts had too much discretion in the making of an antisocial behaviour order and too little discretion in the punishment. That difference is because these are two entirely different kinds of discretion. As far as concerns the definition, we are saying that anything that is likely to give rise to a penalty--this is a penalty: it may be a civil penalty at stage one rather than a criminal penalty--must be clearly defined in the Act which creates that penalty. We should not rely on the courts to apply that as a matter of discretion and to use their discretion to prevent the law having an unjust and excessive operation.

When it comes to the question of imposing a penalty, which is what this group of amendments is concerned with, it is right that the courts should be given a very wide discretion. That is a matter not just to do with these orders but of the general principles of law.

As far as concerns the discharge of the order, the noble and learned Lord said that the order is not a penalty. However, if it is not a criminal penalty, it is at least a civil penalty. One of the principles of civil penalties, as with injunctions, is that they are always subject to discharge when the circumstances no longer justify them. That is recognised in principle because there is a power here to discharge. All we are saying is that the appropriate body to decide whether the discharge is justified is the court and not the local authority or the chief officer of police.

On the question of conditional discharges, I accept that the defendant will have acted in an antisocial way before an antisocial behaviour order is made. I certainly hope, though the Bill does not in itself make it clear, that this will be regarded as a last resort for dealing with the problem. But it is wholly contrary to common sense to suggest that there is no such thing as a trivial breach of the order. Clearly, the order cannot just say, "You must not continue to behave in an antisocial manner". It must lay down parameters of what the defendant can or cannot do. Those parameters may be broken. When they are broken, the matter should come before the

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court. But the breach of the antisocial behaviour order may or may not be a serious one. It is perfectly possible for there to be a trivial one. The courts will have a power to impose a nominal fine. I say again, why on earth should they not have power to order a conditional discharge?

The noble Lord, Lord Henley, asked me how I intended to proceed. My noble friends and I regard this as a serious matter on which we intend to test the opinion of the House. I do not intend to make a habit of that and it will be some time before we proceed to do it again in the course of this debate. However, together with the earlier amendment, we regard this as a very serious matter, indicating, if not distrust of the power of the courts, at least, as my noble friend Lord Thomas of Gresford said, a reluctance to allow them to exercise their powers freely.

I intend to test the opinion of the House on Amendment No. 6, which is in effect a paving amendment. If that is defeated, I will not seek to take the matter further on Amendments Nos. 10 and 14. If it succeeds, we might have to look at that again. I seek to test the opinion of the House on Amendment No. 6.

4.35 p.m.

On Question, Whether the said amendment (No. 6 ) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 120.

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