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Lord Glentoran: My Lords, I am not sure why the Minister is saying this. I intervened when the noble Lord, Lord Bragg, spoke to correct some points that he was making about ramblers. It had nothing to do with the criminal law or any other aspect of the amendments.
Lord McIntosh of Haringey: My Lords, I was making a few introductory remarks to my response on the amendments. I hope that the House would wish me to do that. I was not intervening on behalf of my noble friend; I was responding to the debate. I thought that that was called for--indeed, I still think so.
We spent a considerable time in Committee debating whether a criminal penalty should apply to a breach of the general restrictions or those imposed under Chapter II. Amendment No. 24 would create a slightly different offence, which would not apply to a breach of the restriction. The offence would apply when a person did not obey an instruction from someone with lawful authority to enforce Schedule 2 or Chapter II restrictions.
If a user breaches the restrictions, the landowner and any warden will be entitled to require them to leave. They will lose the right of access. If someone is inadvertently in breach of a restriction, no doubt they will refrain from the breach once it is pointed out. The landowner may decide to take no further action, but he will still be entitled to ask them to leave.
The amendment would put wardens, landowners and their agents in possibly an even more powerful position than police officers, by making any refusal to obey their instructions a criminal offence. It can never be justifiable to give private individuals greater powers than the police in that way. The amendment would criminalise trespass. When we debated night access, the noble Viscount, Lord Bledisloe, vehemently denied that he sought to criminalise trespass. He denied the
In many cases, a breach of a restriction will additionally be a criminal offence. When it is not a criminal offence we do not wish to make it so by adopting a blanket approach. If there are particular problems, by-laws are the appropriate tool. They allow measures to be targeted and they allow for consultation, which is appropriate, given that a new criminal offence is to be created.
Amendment No. 25 would provide that the access authority may seek an exclusion order following an application by the owner, as well as of its own accord. We agree that some criminal acts may cause particular harm or damage to someone or something on access land. In such cases, it may be highly desirable to ensure that the offender has no right of return to the access land in question for a substantial period. The provisions to be inserted in the Powers of Criminal Courts (Sentencing) Act 2000 by the Criminal Justice and Court Services Bill, which had a chequered passage through your Lordships' House yesterday, are the best way to address that requirement. They set out a special process with specific procedures; for example, the obtaining of pre-sentence reports and pre-conditions for the imposition of such an order.
However, it would not be appropriate for these provisions to deal with what may be minor breaches of restrictions. Exclusion orders are meant to deal with criminal offences which may attract a sentence of imprisonment and which are sufficiently grave to justify excluding the offender from a place or area. Classically, they have been used where there have been threats of violence and where someone is in fear of his life, safety, property, family or whatever from someone who has committed an offence. As under Section 40A of the Act as amended by the Criminal Justice and Court Services Bill, exclusion orders are designed for those who commit criminal offences. It is not clear how an authority would know that someone had repeatedly breached a restriction. It is likely that any such provision would be extremely difficult to apply in practice.
Exclusion orders may be a useful tool in a small number of circumstances where a serious offence takes place on access land and where excluding the offender from such land would serve a useful purpose in preventing further criminal behaviour. However, such powers should be used sparingly and should be subject to the careful procedures which will be set out in the Powers of Criminal Courts (Sentencing) Act. We do not believe that they should apply, as these amendments would provide, where breaches of a restriction have taken place, no matter how minor.
Where threatened or repeated trespass takes place, landowners may apply for injunctions, just as they may at present. Such injunctions will be far easier to obtain than exclusion orders, which would have to be sought through the criminal courts.
Viscount Bledisloe: My Lords, before the noble Lord continues, he has, I am sure inadvertently, wholly misrepresented what I said. With the leave of the House, perhaps I may be allowed the opportunity to put him right.
I replied to the point made by the noble Baroness, Lady Miller, who said that the amendments should state that those who exercise the right of access are likely to be criminals. I said nothing of the kind. I explained to her our view that criminals might use the right as a method of masquerading as genuine people. I have never suggested, and do not suggest, that those who persistently--I emphasise that word--disregard the rules and flaunt the system which the Government have imposed should be treated as criminals. I did not say anything of the kind and I should be grateful if the noble Lord were a little more careful in describing my language.
Lord McIntosh of Haringey: My Lords, the record will show both the exchange between the noble Baroness, Lady Miller, and the noble Viscount, Lord Bledisloe, and that between the noble Viscount, Lord Bledisloe, and myself. I only said that he vehemently resisted the idea that under certain circumstances walkers were being turned into criminals. I say that under certain circumstances these amendments would provide that trespass would become a criminal offence, in addition to the existing criminal offences. They would do so in a way which is not provided anywhere else in our criminal law.
Perhaps I may return to Amendment No. 26. Again, we debated the question of whether a criminal penalty should apply to a breach of the general restrictions or restrictions imposed under Chapter II. We explained that we do not agree that simple trespass, even if it occurs on two or more occasions, should be a criminal offence--that is the crux of the matter so far as concerns the noble Viscount, Lord Bledisloe, and I--subject to a fine of up to £200. That would be the effect of Amendment No. 26. It would make trespass a criminal offence.
The sanctions available to landowners against those who trespass on their land under the new right are no different from those currently used against trespassers. They may require the person to leave the land and, if necessary, may seek an order of the court to prevent a repetition. If damage is done to the land, or to property on the land, damages may be obtained. In itself, trespass has never been a criminal offence, even throughout the past two centuries when large landowners, both Whig and Tory, dominated the membership of your Lordships' House. Trespass has never been a criminal offence. We see no reason to make it an offence on open countryside. That would place owners of open countryside in a more favourable position than landowners generally.
A person in breach of a restriction will cease to have the benefit of the statutory right for the next 72 hours. As I said, they could be asked to leave the land. Landowners will be able to seek injunctions against
I turn to the issue of breach of conservation restrictions. Under Part III of the Bill it is a new criminal offence intentionally or recklessly to damage an SSSI, subject to a £20,000 fine in a magistrates' court or an unlimited fine in a Crown Court. The Government have tabled a new power for English Nature to make by-laws to protect any SSSI. By-laws can already be made to protect European conservation sites. Where a serious problem exists, the land can be wholly excluded from access, if necessary, by direction under Chapter 2.
The noble Lord, Lord Monro, asked about a fair balance. There is a fair balance in this Bill. There are no criminal sanctions applied to landowners who obstruct or deny access under Part I other than the exceptional circumstances of the breach of a court order under Clause 37 or the deliberate erection of a misleading sign under Clause 14.
The noble Viscount, Lord Bledisloe, made a point about persistent offenders. I do not apologise for returning to it, but if there are areas where there are persistent offenders and problems with enforcement the access authority can appoint wardens to target that area, and we would expect them to do exactly that.
With all of these protections that exist for actual offences, I cannot believe that it is right, directly or indirectly, to overturn many tens or hundreds of years of the existing law on trespass and criminal law in order to criminalise trespass. That is what these amendments would do.
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