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Crime and Disorder Bill [H.L.]

8.45 p.m.

Consideration of amendments on Report resumed.

Clause 15 [Contravention of curfew notices]:

Baroness Anelay of St. Johns moved Amendment No. 32:

Page 13, line 10, at end insert--
("( ) A constable who, acting in accordance with the provisions of subsection (3) above, removes the child to the child's place of residence and discovers that there is no responsible adult at that address, shall then inform the relevant local authority.").

The noble Baroness said: My Lords, Amendment No. 32 seeks to plug a perceived gap in the process by which the police deal with children under 10 who have broken the curfew ban.

Clause 15 sets out what happens when the curfew ban is broken. The constable must first tell the local authority that the child has contravened the ban and then he must decide whether or not to take the child home. In making that decision, he must first take the decision as to whether or not, by taking the child home, that child will be likely to suffer significant harm--as in the threshold criteria with which we are used to dealing in the Children Act.

The constable must therefore consider whether, by taking the child home, the child is being put in a position where it may suffer significant harm. After all, as a local police officer he may have some knowledge of the area; he may know the history of abuse or neglect in a family and, if so, if he comes to a decision that the child would suffer significant harm, at that stage he has powers to take the child into police protection under Section 46 of the Children Act 1989.

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That much is clear. But what is unclear is what happens when the constable decides to take the child home on the basis that he or she is not likely to suffer significant harm, but when he rings the doorbell of the home there is no reply. It may simply be that the parents or guardians are not at home. At that stage the Bill does not help with what the constable should do next. It jumps to the stage after that and gives details as to how the local authority shall investigate the incident as soon as practicable; in any event, within 48 hours. That is of course a proper direction. But what happens in the meantime?

Amendment No. 32 seeks to fill the gap so that, when a constable is on the doorstep and there is no reply, he or she shall then inform the local authority. I realise that the Government may feel that the amendment is defective in its wording because I have not specified where the constable should take the child, having notified the local authority. It will be apparent to noble Lords therefore that this is a probing amendment. I genuinely seek to find out whether or not there are existing powers to cover that eventuality which are not to be found within the Bill. If so, perhaps the Government can say where they are to be found. I beg to move.

Viscount Tenby: My Lords, I rise to speak in support of Amendment No. 32. It may seem to be a case of dotting the "i's" and crossing the "t's"; it may seem obvious and appear to be one of those byways in a Bill which does not have to be on its face. But it presents a real problem.

If a policeman turns up to a child's home with a child and there is no one in, he will of course take the child back to the police station. But what happens then? Some sort of provision should be made. If not, all kinds of difficulties may ensue and the whole process may be put in jeopardy. I congratulate the noble Baroness on finding this apparent loophole in the Bill.

Lord Williams of Mostyn: My Lords, I am genuinely grateful for the way in which the noble Baroness has put the matter and for the way the noble Viscount came to her assistance in questioning whether there is a gap. These are perfectly reasonable questions to ask and I hope that I can offer a satisfactory answer.

In subsection (3) of Clause 15 the Bill provides that the constable may remove the child to the child's place of residence. That is the proper first step. If the constable believes that such a step would place the child--one is dealing with children under the age of 10--at risk of significant harm, he would be expected to make use of existing powers under Section 46 of the Children Act 1989 to remove the child to suitable accommodation. That suitable accommodation has to be a matter for discussion between the relevant local agencies prior to the imposition of a curfew notice so that appropriate arrangements will be in place during the period of the curfew. That is a matter which we will cover in guidance, which I mentioned earlier, but not this specific topic.

The amendment would place a requirement on the constable to inform the local authority if no one responsible is at home--I think I paraphrase fairly.

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The answer is to be found in subsection (3)(a) of Section 46 of the 1989 Act, which provides that when a child is taken into police protection, which would be the result of there being no one responsible at home, the constable shall, as soon as is reasonably practicable after taking the child into such protection, inform the local authority about the situation surrounding the child. Therefore, I am happy to be able to say, I think confidently, that the Children Act covers the possible lacuna which was identified by the noble Baroness and by the noble Viscount. I hope that I have been of assistance to them both as well as to your Lordships.

Baroness Anelay of St. Johns: My Lords, I thank the Minister for that explanation. Provided the clause fills the lacuna, I will not bring this back. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 [Interpretation etc. of Chapter I]:

[Amendment No. 33 not moved.]

Clause 18 [Anti-social behaviour orders]:

The Earl of Mar and Kellie moved Amendment No. 34:

Page 14, line 40, leave out from beginning to ("pursued") in line 42.

The noble Earl said: My Lords, this fairly large group of amendments, starting with Amendment No. 34, is aimed at ensuring that antisocial behaviour orders are sought by a local authority only in circumstances of persistent reported nuisance. I do not believe that there are circumstances where a single event would occur which was serious enough for an antisocial behaviour order without it also being an offence.

I acknowledge that there are people who behave in a consistently antisocial manner towards their neighbours. The key to this amendment is that they are building up a dossier of evidence against themselves. I am sure that it would be a mistake to allow a local authority to believe that it could proceed with an antisocial behaviour order on evidence of a single noisy late-night party. It is important that these new orders are not brought into disrepute. The adoption of these amendments would ensure that ending continuously unacceptable and positively interfering behaviour was the target of the Bill. I beg to move.

Lord Mackay of Drumadoon: My Lords, I rise to offer support to the noble Earl for the amendment and also for the other amendments which are grouped with it. As I believe the Minister who is to reply will be well aware, these amendments have been suggested by the Law Society of Scotland, which is concerned to guard against any possibility that an antisocial behaviour order could be granted on the basis that the person who is to be made the subject of the order has committed a single act which could be described as being an antisocial act. What this group of amendments seeks to suggest is that a similar approach should be adopted in this clause as has been adopted in the Protection from Harassment Act 1997; namely, proceeding on a course of conduct.

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Arguably, the need for this amendment may be fortified by the next couple of amendments, to which we shall turn in a moment, whereby the conduct that could justify an antisocial behaviour order can be directed at one person alone. Therefore, there must be a possibility that, unless this clause remains unamended, one act against one person could justify a sheriff pronouncing an order sought by a local authority.

It is my suggestion that this amendment and the other amendments fit in with the whole philosophy of antisocial behaviour orders as has been explained by government Ministers when dealing not only with the Scottish provisions but also with the English provisions which have detained us for a few hours again today. The whole philosophy is that this order is to be sought as a last resort after the neighbours themselves have failed to sort out their differences, after any police involvement has achieved nothing, after any warnings from the local authority, whether by visit or warning letter, have failed to bring about a change, and after mediation has failed. The suggestion is that it is then and only then that the Government would consider it appropriate that a local authority should act by raising the appropriate proceedings in the sheriff court and seeking an antisocial behaviour order.

In those circumstances, it is very difficult to imagine how one act by one individual directed against another individual could justify such action being taken. It is against that background that I hope that this series of amendments will receive sympathetic consideration by the Government.

The Lord Advocate (Lord Hardie): My Lords, this group of amendments, as any amendment, receives sympathetic consideration by the Government. However, it is our position that these amendments are fundamentally mistaken. They are designed to ensure that an application can be made and an order can be granted only if there has been persistent antisocial conduct and that further persistent conduct is feared. I have no difficulty whatever with the point made by the noble Earl and repeated by the noble and learned Lord, Lord Mackay of Drumadoon, that applications should not be a response to one-off acts. They should be a last and not a first resort, as the noble and learned Lord has observed. As the consultation paper issued at the end of last year said, they should be a response to repeated unreasonable behaviour. I would hope to allay the fears of the noble Earl and the noble and learned Lord by referring to Clause 18(6) where "conduct" is defined as including speech and a course of conduct which involves conduct on at least two occasions. So the single act theory cannot apply in terms of the Bill as framed.

Having said that, we would not wish to remove the possibility of the sheriff making an order after one antisocial act if it was sufficiently serious and if there was obvious evidence that there was a likelihood of repetition. There is also a difference between the behaviour that prompts an application and what has to be proved in court.

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If the amendments were accepted, the benefits of these provisions for vulnerable and intimidated witnesses would be substantially reduced. I deal with a point raised by the noble and learned Lord, Lord Mackay of Drumadoon. Of course, neighbours may seek to sort out differences and the police may be involved. But the whole point of these orders is to provide a remedy where neighbours are frightened to involve the police and they go through the anonymity of the local authority.

I postulate a situation of a group of elderly residents of a street whose lives are made miserable by the behaviour of a gang of youths. It is likely that there will be several occasions when they suffer alarm and distress before they even contact the local authority. But they may be too frightened to speak to any of these incidents in court. In that situation the local authority would arrange for the behaviour to be witnessed by one of their officers so that the witness can give evidence of behaviour likely to cause alarm or distress.

However, if these amendments were made, the witness would have to witness at least two incidents. He would have to wait and see a second occurrence and we believe that that would be unreasonable. Furthermore, the addition of the word "persistent" to the provisions which are sought to be amended would be likely to mean that even more incidents would require to be proved. That would clearly prolong the evidence-gathering period and therefore the period before the local authority could act on behalf of the residents.

There is a further difficulty that the sheriff could only make an order if he were satisfied that one was necessary to protect the public from further persistent conduct rather than from further conduct. So even if he were satisfied that the behaviour was likely to take place again, that would not be sufficient if these amendments were given effect. I do not know how the courts would interpret "persistent" in the context of future events. One can easily envisage a defence solicitor arguing that the applicant had not proved that further persistent conduct was likely although there was a likelihood of further conduct. In that situation I invite the noble Earl to withdraw the amendment.

9 p.m.

The Earl of Mar and Kellie: My Lords, I am most grateful to the noble and learned Lord the Lord Advocate for so patiently explaining the position. I had anticipated a great deal of what he said. I can see that as regards the word "persistent" one needs to look for a word that implies two, three or four, rather than a never-ending stream, of events, which is what I believe "persistent" means.

I take the point about the single incident which has been reported to the sheriff and that that will in fact be the result of some fairly persistent misbehaviour. If I were initially worried that it was going to be a genuine one-off incident leading to an antisocial behaviour order, I believe that it has been quite clearly established that such an incident cannot exist and not just because of the

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reference to two or more occasions. In order to build up the dossier to which I referred to earlier, a frequent course of unsatisfactory behaviour will have to be displayed in order to gain the interest of the local authority in the situation. Having said that, I am happy with the answer that I have received. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 35 not moved.]

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