Criminal Justice and Police Bill

HL Deb 30 April 2001 vol 625 cc475-505

5.24 p.m.

Lord Bassam of Brighton

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Scrota) in the Chair.]

Clause 1 [Offences leading to penalties on the spot]:

Lord Phillips of Sudbury moved Amendment No. 1: Page 2, leave out lines 18 to 32.

The noble Lord said: This amendment falls within the group which deals with the question of penalties imposed by a bobby on the beat in exchange for cash as an alternative to taking the offence to a court.

This is a very important Bill. I am sure that all Members of the Committee will support the parts of it which will effectively—by that, I mean both economically in terms of police time and fairly—reduce public "yobbism", which, by all accounts, is currently a considerable drawback to life in these islands.

While we are doing all that we can, as, I hope, we usually do, to give a fair wind to the measures which we consider to be in the public interest, we on these Benches are aware that the opportunity to debate this Bill is perhaps the only constructive outcome of the foot and mouth disease. The Bill would not have seen the light of day had the election been called as intended.

I confess that we have a certain misgiving about seeking to press through a Bill of this size and consequence in the time available to it. Although we shall be co-operative, I say on behalf of my noble friend Lord McNally that we retain an open mind as to whether it is right that all the measures, some of them of huge importance, should be allowed to pass in the time available.

In proceeding with this group of amendments, our real concern with regard to this innovation is that it may be another bright idea which bites the dust when exposed to the harsh operational realities of policing. As we sit in this gilded Chamber, it is easy to underestimate how intensely difficult it is for the police to do their work on the beat on a Saturday night in a lively town centre where a great deal is going on.

First, behind these amendments lies a concern about the steady backdoor creation, if I may express it that way, of a new hybrid category of offences which are part criminal and part civil. They are part criminal in that the penalties and the nature of those penalties are commonly understood as being associated with criminality. They are also part criminal in the sense that they are pursued through magistrates' courts and by the police. Yet, they are part civil in that the measure concerned requires not the normal standard of proof beyond reasonable doubt but proof on the civil test. That is true of the proposals in Clause 1.

Yet, of course, there has been no debate about the development of this hybrid category. We had it in the Football (Offences and Disorder) Bill and I believe that it may have arisen first in the anti-social behaviour orders under the Protection from Harassment Act. However, we, at least, on these Benches are not at all happy with this hybrid category, and that is at the root of our concerns.

Secondly, we put forward these amendments out of a sense of the practicalities of policing. In the words of the Law Society—the committee of the Law Society that examined the Bill is comprised of extremely experienced, hard-nosed practitioners—is it right that a police constable should make a judgment, often under pressure, on a series of different offences, each of which will have different elements that must be proved? Such a situation is clearly amenable to serious misjudgment or abuse.

If cases in relation to which penalties are sought to be imposed proceed to court, come before the Crown Prosection Service and have to comply with the normal criminal test of being beyond reasonable doubt, there will be a considerable fallout in the number of such cases that are taken forward. It does not take a magician to realise that having two tests—a lower and a higher test—will involve a considerable fallout in the number of cases that are pushed to court. It will soon be known on the streets that it is not a bad idea to refuse to pay a fixed penalty because there is a much better chance of the whole case being chucked out if the CPS gets its teeth into the matter. We need to address that problem, and I hope that these constructive amendments would do so.

We are trying to knock out from the cases that are scheduled as being susceptible to on-the-spot fines those that are complicated, whether as to evidence or as to law. Complexity as to law involves complexity with regard to the necessary element of intent that goes with some of the scheduled offences that my amendment would strike out. I refer, for example, to threatening, abusive or insulting words or disorderly behaviour within hearing or sight, and so on. Much law is involved in a Section 5 Public Order Act prosecution. We believe that it is too much to ask a policeman on the beat on the night in question to form an objective and cool view of a critical situation.

We also believe that when cases are pressed forward inappropriately, that will be the fault not of the relevant policeman but of the circumstances and complexities that are involved. Far from helping the process, that would create much extra paperwork and frustration and it would in the end be counterproductive.

Many young men—the provisions will mainly involve young men—will no doubt pay up on the relevant occasion and be done. Many of those who will be inclined to do so are, I suspect—others tell me that this will be so—likely to be the sort of people from whom it would be extremely difficult to extract the fine that they had agreed to pay. They will then be pitched into an interminable bureaucratic maze at the end of which, in the extreme case of default, young men will go to our already overcrowded prisons. I see that the Minister is—how should I put it? —facially gesticulating. I ask him to ponder carefully whether our attempt to simplify matters would actually complicate them. The last thing in the world that we want is to send yet more young, feckless men to our prisons because of their failure to pay fines.

Finally, I turn to the concern that many outside organisations, such as Liberty and the Law Society, have expressed; namely, that the provision will tend, in too many cases, to allow the police to pick on those who are already socially maladept or socially vulnerable. We all know that such people can become socially obnoxious with drink inside them. It is all too likely that the unemployed, the illiterate and the excluded will be—how should I put this?—the most frequent objects of police activity under Clause 1. There will be a temptation for hard-pressed policemen to pick off what they might regard as the easier targets.

The long and the short of my argument is that we have severe doubts about the practicality of the proposal but that we are perfectly content to allow the Government to give it a go. However, in doing so, we suggest that we should simplify the list of offences. That would prevent us from running into the complications that I have endeavoured to explain. I beg to move.

5.30 p.m.

The Deputy Chairman of Committees (Baroness Serota)

I point out to the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 2 and 3.

Baroness Buscombe

I rise to speak to Amendments Nos. 2 to 6 and 36. I also want to respond briefly to the comments of the noble Lord, Lord Phillips, on Amendment No. 1.

We on these Benches cannot agree that all of the listed offences should be removed. We have real concerns about the list; hence our amendments. However, we are supportive of there being in the Bill a list that sets the pace and parameters of the legislation. Indeed, we want much more detail in the Bill. I shall return to that point throughout our debate.

The noble Lord, Lord Phillips, said that the Liberal Democrats wish to retain an open mind about the Bill's prospects. We echo that sentiment. We, too, have concerns about the new hybrid category; hence our Amendment No. 7, which relates specifically to the two tests and the burden of proof.

I shall deal first with our Amendments Nos. 2 and 3, in which we seek to exclude Section 1(1) of the Criminal Damage Act 1971, which concerns the destruction of or damage to property without lawful excuse, and Section 5 of the Public Order Act 1986, which concerns threatening, abusive or insulting words, or disorderly behaviour within hearing of or in sight of a person likely to be caused harassment, alarm or distress. While we are in favour of the introduction of on-the-spot penalty fines in principle for certain clear-cut, minor offences—it is now clear to us that they will not attract a criminal record and we understand that there will be no national register or database that will record those offences—we do not believe that criminal damage involves a proper use of that vehicle.

We are told that the Bill is about fighting crime and, in particular, the so-called yob culture which, sadly, is on the increase and tends to compromise all of us in one way or another in our daily lives. We believe that it should not allow thugs to shrug off their sometimes despicable acts by the payment of a fine. I repeat what I said on Second Reading; namely, that this should not be a case of crime pays so long as one pays up.

I read with interest the Government's response to our concerns in Committee in another place. I am not persuaded that the Government would achieve their stated aim without our amendments. With reference to criminal damage, I quote the Minister of State, Mr Charles Clarke. He said: We intend the Bill to catch behaviour at the less serious end of the spectrum where the damage caused is the result of disorderly or antisocial behaviour. We do not intend it to apply where the serious criminal sets out deliberately to destroy or severely damage the property of another person".—[Official Report, Commons, Standing Committee F, 6/2/01: col. 26.] Where in the Bill is that spelt out? Surely that is what criminal damage is. How can a police officer make a balanced judgment on the spur of the moment? As the noble Lord, Lord Phillips, said, difficult circumstances are often involved, which makes it difficult to establish whether the offence caused is—hitherto, it has been—an arrestable offence. Do the Minister of State's words mean that criminal damage attracting an on-the-spot penalty merely involves damage that is caused unintentionally or, if it is intentional, that it involves only partly destroyed or lightly destroyed damaged property? Do threatening, abusive or insulting words or disorderly behaviour also involve an arrestable offence? There is a plethora of circumstances in which that offence can occur, often with serious consequences. It is easy to imagine situations in which the imposition of an on-the-spot penalty fine would be likely to increase confrontation and the seriousness of the offence.

Part of the difficulty rests with the fact that such offences are not clear-cut. Parking on a double yellow line is clear-cut: if one is caught, that is a fair cop because the evidence is there for all to see. The degree to which someone can be abusive is far from being clear-cut. Further, the measure of actual harm to property will require the police officer to make a tough, subjective, on-the-spot judgment about whether an on-the-spot fine is proper in all the circumstances or whether the thug in question should be arrested.

Another difficulty relates to deterrence. I firmly believe that there is precious little point in putting anything on the statute book unless it is going to act as a deterrent. It is our view that on-the-spot penalty fines will only act as a deterrent for minor, clear-cut offences. It is, we believe, wrong to use that vehicle for offences such as criminal damage which, in the words of Edward Crew, Chief Constable of the West Midlands Police, speaking on behalf of the Association of Chief Police Officers, are "triable either way", and can have an enormous impact upon victims' lives even in the most minor instances.

I turn to Amendment No. 4. We made it clear at Second Reading that we believed that there should be an offence for urination or defecation in a public place. It would be clear-cut, tangible and, as such, ideally suited to the use of the on-the-spot penalty fine. As I said at Second Reading, Westminster City Council informs us that street fouling is now perhaps the single aspect of anti-social behaviour that most undermines the quality of life for those who live and work in parts of the city. There is little doubt that where patterns of behaviour manifest themselves and develop in one of our great cities, so it follows over time—usually a brief amount of time—in others. Why not make this an offence now to act as a deterrent, a warning, that we will not tolerate this foul behaviour in our public places?

I note that in another place the Liberal Democrat Member for Southwark North and Bermondsey, Mr Simon Hughes MP, suggested, Every male aged over 18 … admitted to having done it when caught short … Women do not have the same problem because they have much better control".—[Official Report, Commons, Standing Committee F, 6/2/01: col. 38.] Control has nothing to do with it; civilised behaviour does. I hope to receive such a response from the Minister.

The Parliamentary Secretary at the Lord Chancellor's Department argued in another place, at col. 36, that, it is not currently an offence under any law that applies throughout England and Wales, although it is an offence under certain local authority byelaws. It would be administratively complex to devise a national fixed penalty notice scheme that would apply to a local authority byelaw that applies in some parts of the country but not in others". With respect, that is not a valid argument. This Bill introduces a new offence under Clause 1; that of consumption of alcohol in designated public places. There is therefore absolutely no logical reason why this Bill should not also be a vehicle for introducing the offence of urination or defecation in a public place.

We suggest a further new offence under Amendment No. 5, that of unlawful street trading. This amendment presents a further opportunity to deal with an entrenched wrong which compromises all those who work hard and stick to the rules of fair trading. Again, it is clear-cut and tangible and, at the moment, it is too easy to flout the rules. More than that, as said by Edward Crew, on behalf of the Association of Chief Police Officers, unlawful street trading can attract large audiences in busy market areas, providing an ideal environment for pick-pocketing and street robberies.

The honourable Member for Norwich South, the Minister of State, Mr Charles Clarke, MP, said in another place at col. 29: We felt that penalty notices for such offences, which involve financial recoupment, might result in the perpetrator seeking to recoup the cost of the penalty through increased activity elsewhere". With respect to the Minister of State, it is hard to think of a more defeatist approach. What is the point of the "Let us be tough on crime and the causes of crime" mantra if that is the kind of argument engaged by the Government to pass up the opportunity to combat an albeit relatively minor offence and thereby one suited to the on-the-spot penalty offence?

Amendment No. 6 has a simpler purpose. It would limit the degree of severity of offences that could be added to the list of offences attracting on-the-spot fines under Clause 1 of the Bill. Without that qualification, the Bill is unclear in its intent and therefore uncertain and while the current Secretary of State may be clear in his mind as to the parameters under which the clause should operate, a future Secretary of State may have an entirely different view as to the limits within which he or she may use this vehicle to tackle anti-social behaviour.

5.45 p.m.

Lord Beaumont of Whitley

I rise partly to support Amendment No. 1, which is very sensible, but more particularly to oppose Amendments Nos. 4, 5 and 36.

I could not believe my eyes when I saw Amendment No. 4 on the Marshalled List. I made up my mind that I should speak against it if I had the chance. It seems to me that Amendments Nos. 4, 5 and 36 are trying to make offences of acts which should not be offences except in certain, limited circumstances. They certainly should not be included in the Bill as at present drafted. If the Committee felt we should accept these amendments, at least we could take out urination at a later stage.

Today, between the turnstiles in Westminster Underground Station and the entrance to your Lordships' House, someone was urinating against the wall. He looked apologetic and had clearly been caught short—I could tell that if only by the amount of liquid proceeding down the wall and across the pavement. People are caught short. Urination and defecation are natural processes and part of the human condition. They should not be included in this kind of legislation and I hope that Members of the Committee will not what is proposed.

Lord Windlesham

For reasons which I explained at Second Reading, I am opposed to the policy of on-the-spot penalties for disorderly behaviour in principle. I believe that they originated from some ill thought out and populist assumptions on the part of the Government and that Home Office officials then had the difficult task of trying to turn them into legislative form. The draftsman in particular must have had an exceptionally arduous task.

The objections are of principle and practicality—the two come together—and permeate this part of the Bill. The amendments of my noble friend Lady Buscombe, who spoke for the Opposition, and of the Liberal Democrats to an extent would ameliorate some of those objections by varying the list of offences in the existing statutes which would attract the fixed penalty. But it is not so much which offences should attract the fixed penalty; it is the concept of the fixed penalty itself which is objectionable.

The Government have recently circulated a document entitled Guidance to the Police on Penalty Notices for Disorder, made available by the Minister of State in another place, Mr Clarke. I have no doubt that the Parliamentary Under-Secretary is familiar with it. I stress that it is no more than a draft document. It states clearly enough that the aims include the following: trying to deal more effectively with anti-social and disorderly public offending; to provide a swift response that has a deterrent effect, and to save police and court time.

I am fairly confident that none of those three objectives will be secured. Let us take the last of the three, which is often cited, and valuable if achieved; that is, to save police and court time. The Justices' Chief Executive of the Inner London Magistrates' Courts Service stated that it is probable that the proposal might achieve exactly the opposite. That is on behalf of magistrates who sit in the courts, day in day out, trying offenders charged with summary offences. The argument is that it appears to overlook the effect of the Government's own Narey initiative. The justices' chief executive states that since the introduction of the Narey reforms, anyone charged is now brought before a court within a day or two. Under the proposed system the issue of the notice may indeed be swift, but payment will be delayed for at least a statutory period and in many if not most cases will not be made at all, at least without further court appearances either in the form of a summons for the offence or a means warrant for non-payment. The issue of compensation is not addressed. That is one example of how practical experience in the courts runs against the easy assumption that in some way this initiative will save the time of the courts and the police as well as saving money.

It seems to me that claims are being made for a novel proposal which are not based on experience. Ministers are now trying to give effect to what was a policy driven by presentation, to respond to a groundswell of public opinion and dissatisfaction with extremely offensive and disagreeable behaviour. We can all share in and respond to that feeling, which is understandable and reasonable. However, the response has to accord with the rule of law. We shall return to that later in Committee. The noble Lord, Lord Phillips of Sudbury, referred to some of those aspects. However, we must also consider the practicalities. I suggest that we address our attention to that at this stage in Committee.

Lord Renton

I, too, have doubts about the whole principle of on-the-spot fines. However, we must realise that the proposal will save public money because it will save the time of the courts. In some other countries—I cannot give details—the system has prevailed for some years. However, we must be careful in our choice of offences.

I am glad that my noble friends tabled Amendments Nos. 2 and 3. Offences such as destruction of or damage to property without lawful excuse are not easy matters for a police officer to decide on the spot. They will require careful inquiry, which should be done by the courts. The same comments apply to Amendment No. 3, which seeks to leave out the provision on, Threatening, abusive or insulting words or disorderly behaviour". All those are matters of opinion for the courts.

Having made those general remarks, I wish to support the amendments tabled by my noble friends.

Lord Thomas of Gresford

The offences set out in Clause 1(1) of the Bill are already offences, which goes without saying, save for the new offence under Section 12 of the Licensing Act. If one looks at Section 12, one observes that that offence is to be arrestable in that a constable may arrest a person who fails without reasonable excuse to comply with the constable's requirement to cease drinking in a public place. There is already in existence, subject to the rule of law and control of the courts, a way of dealing with each and every one of the offences set out in this provision.

The Bill seeks to reduce the burden of proof, remove the safeguards of the court process and impose penalties on an individual who is thought to be committing or to have committed those offences simply on a constable's belief. That is a dangerous principle to bring into the criminal law of this country. All the safeguards which surround the conviction of offences are absent in a situation such as that.

Some of the offences which are set out are of a minor nature: being drunk, throwing fireworks, trespassing on the railway, and so forth. For the purposes to which the noble Lord, Lord Renton referred—that is, the saving of public money by saving court time—the provision of penalty notices might be justifiable. However, in the more serious offences set out in lines 18 to 32—the subject of Amendment No. 1 tabled in my name and that of my noble friends—one sees that much more complex offences are under consideration. In particular, wasting police time or giving a false report are not matters which can be immediately decided by a policeman in the street. They imply a degree of investigation before a policeman can come to a particular belief. Destruction of, or damage to, property without lawful excuse also involves a value judgment by a police officer if an excuse is put forward by an individual. I omit reference to the Tecommunications Act, although it would be difficult to arrest a person simply because he was standing in a telephone booth and making a phone call without having some means of knowing what was being said and what was being received on the other end of the telephone. That also requires a certain degree of investigation, and is not immediately obvious to and observable by a police officer.

The provision in Section 5 of the Public Order Act regarding threatening, abusive or insulting words or disorderly behaviour throws up all sorts of problems. As I recall, Section 5 requires the words or disorderly behaviour to occur in a public place. There is certainly authority for that. I was involved in a case concerning disorderly behaviour in a front garden of a property abutting a road. The issue was whether that was a public place. One can envisage a situation where words are exchanged over a hedge and a policeman has to decide whether that is a public place and whether the person standing in the garden can be arrested and given a penalty notice in such circumstances.

As regards the person who is likely to be caused harassment, alarm and distress, there is authority as to whether that person merely has to be the policeman. Therefore, is swearing at a policeman an arrestable offence? Can it give rise to a penalty of this nature? Many issues can arise around such a charge.

If the burden of proof is to be reduced in the way the provisions suggest, so that it is the belief of the constable which matters and not proof beyond reasonable doubt, surely such a penalty notice should be confined to offences which are simple and observable and can be dealt with instantly without further investigation by the police officer. The provision goes too far and I support my noble friend in this amendment.

6 p.m.

Lord Brennan

The fact that drink is a major component in the commission of many minor offences hardly needs repeating. The first group of amendments with which we are concerned tonight again gives an opportunity to Members on all Benches to question the philosophy of the Bill. I state the problem before I consider questioning the philosophy. The problem is major.

On Second Reading, I had occasion to recount to the House that in Manchester over a weekend—that is the accumulation of three nights—half a million young people come into the city centre from the outlying conurbation and stay up drinking most of the night. I invited the House to note that that was a social phenomenon that we had not previously had to address.

It is not correct to assume that offences relating to drink and the minor, as I am sure we shall be told, consequential offences of threatening behaviour and so on are the product of people who are emotionally or educationally deprived and cannot manage their own affairs. Many irritating minor offences are committed by people with money and good jobs who on occasion display a lack of common sense which they would remember to exercise if they realised that the following day they would have a fixed penalty to meet.

The problem is new. We should galvanise our thinking—even the most dedicated proponents of a traditional criminal justice system—to meet the problem. Fixed penalty notices are worth trying but with two important provisos. One is the scope of the offences that they should embrace. It seems to me that much of the concern expressed on the Benches opposite is directed at Clause 6. That establishes how the Secretary of State will give guidance as to the proper implementation of the power by police officers around the country. I shall return to that matter when the clause comes up for discussion.

Surely that guidance will be directed principally at telling police officers to discriminate between a minor offence, readily observable and easily prosecutable under a fixed penalty, as against the more serious matters which some Members of the Committee put forward as examples. That is the first point.

The second point is more important. What will be the system effectively to enforce the collection of fixed penalties? Nothing will be more likely to undermine the effectiveness of the new system if those involved think they can get away with it anyway. It is a pretty effective system which these days applies to parking offences. We should introduce the same ethos with this new type of penalty for minor offences, not in order to flood the system of fixed penalties but in a genuine attempt, even for offences which may have wide degrees of culpability, of deterring young people with money not to commit the kind of behaviour that will attract fixed penalties. I oppose the amendment.

Lord Bassam of Brighton

We have had a wide-ranging discussion on this group of amendments. It has been said that, on the one hand, we have included too many offences and, on the other hand, that we ought to be adding to them. There is also a degree of consensus about one or two of the offences which might be covered by fixed penalty notices. There has also been further discussion of issues of principle and a picking away at some of the detail.

However, there is a consensus in the Committee that this matter relates to an important issue; that is, appalling and offensive behaviour, often described as part of the yob culture, which takes place in our towns, cities and elsewhere from time to time, particularly at the weekend and where drink is at the root of the matter.

I do not claim that we have a monopoly of wisdom in the Bill, but we are trying to develop policies to deal with the developing and expanding phenomenon. We are trying to come forward with yet another approach but it is certainly not the only answer or solution. Therefore, my comments should be considered within that framework.

The criminal damage offence included in Clause 1 is that under Section 1(1) of the Criminal Damage Act 1971 and is the destruction of and/or damage to property without lawful excuse. We have deliberately not included the more serious offence under Section 1(2) where life is endangered, either intentionally or recklessly, as that would clearly be unsuited to the fixed penalty notice scheme.

The behaviour that the Bill intends to catch is that at the less serious end of the spectrum where the damage caused is the result of disorderly or, as is more broadly described, anti-social behaviour. We do not intend it to apply where the serious criminal sets out with the intention of deliberately destroying or seriously damaging the property of another person.

I appreciate that the offending covered by Section 1(1) encompasses a range of behaviour and we shall be issuing guidance to the police to make clear the type of offending with which the scheme has been designed to deal. In particular, we shall draw attention to the need to consider carefully before issuing a notice whether, if the case went to court, a compensation order might be made in favour of an individual whose property had been damaged. In such a case, it would understandably be preferable for the case to be dealt with by other means.

The offending behaviour covered by Section 5 of the Public Order Act includes the use of threatening, abusive or insulting words or disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress by it. That again seems central to the type of behaviour to which we would like the new scheme to apply. Indeed, the description of the offence included the words "disorderly behaviour". It would not seem logical intentionally to omit it from the list before we had the opportunity to see how it worked in practice.

I turn to the offences of wasting police time and using the telecommunication system to send false or annoying messages.

Lord Cope of Berkeley

Before the Minister leaves the question of criminal damage, it is difficult to expect a policeman to decide on the spot whether any compensation is liable to be paid in a case of criminal damage. Normally, there is a possibility of compensation in a case of criminal damage; if so, an on-the-spot penalty is not to be used. Therefore, this arises only in a case of extremely minor criminal damage where there is no possibility of compensation. That is the kind of the difficulty in which a police constable will be placed in deciding whether to issue a penalty notice. It is very difficult to judge what criminal damage could not possibly lead to any compensation.

Lord Bassam of Brighton

I accept what the noble Lord says. However, I made the point at the outset that we wish to focus attention on the lower order of this offence, and that will be made clear in the guidance. We have also made it clear in the draft guidance that we intend to issue to the police that we have included these offences to catch the making of false 999 calls. We regard that type of offending as appropriate for the new penalty notice system. I note that noble Lords opposite have not proposed the omission of the similar offence of knowingly giving a false alarm to the fire brigade. If we accepted this amendment, we would be left with an inconsistency in this respect. One could receive a penalty notice for falsely calling the fire brigade but not an ambulance or the police. In any case, we believe that all these offences should be included in the scheme.

Lord Thomas of Gresford

Does the Minister not realise that the penalty notice minimises the offence; it does not maximise it so that it is a more serious offence to make false calls to the police and the ambulance service which will be dealt with under the existing legislation? The whole point is that to give a penalty notice to someone is the soft option. The Government are supposed to be tough on crime but they give a soft option in many of these offences.

6.15 p.m.

Lord Bassam of Brighton

I do not believe that it is a soft option; it could well be an effective option. As I argued earlier, we need to recognise that there are new ways to tackle some of the problems that we confront in dealing with yobbish behaviour. That is what we seek to do, and I thought that in measure that principle had been accepted. I hope that Members of the Committee are reasonably reassured by what I have said. If they still believe that we can leave out these offences, they should consider the effect of so doing. Without these offences we would have a new scheme to deal with offences of disorder and anti-social behaviour, but with the new disposal unavailable for much of the relevant offending behaviour. We shall certainly monitor the scheme closely to see how it works in relation to these offences, but we want to start with them included.

I deal next with Amendments Nos. 4 and 36 which deal with urinating and defecating in public. First, the criminal justice system is a limited and scarce resource and should be employed only where there are particular and significant public policy reasons for doing so. Accordingly, and perhaps most obviously, new offences should be resisted where the conduct in question is already defined as criminal. Urinating or defecating in public is currently an offence under by-laws set out in the Home Office model by-laws set No. 8: Bylaws for Good Rule and Government. By-law No. 24 of the set reads: No person shall urinate or defecate in any public place". An offender under the by-law is liable to a fine not exceeding level 2 (£500). The offence can also often be dealt with under other legislation, such as that governing drunk and disorderly behaviour or offences under Section 5 of the Public Order Act.

Secondly, criminal offences should be created only where there is a clear public policy need. To the extent that urination and defecation is a social problem, it must by its very nature be one that is subject to great variation in degree on a geographical basis. In certain urban or high density residential areas a problem may exist which is entirely absent in rural areas. I am tempted to suggest that in the middle of Ashdown Forest, Dartmoor, or the North Yorkshire moors, which one could regard as public places, somebody who must relieve himself—

Baroness Buscombe

With great respect to the Minister, surely on the whole the yob culture occurs only in urban areas. One does not have much yob culture in the Forest of Dean.

Lord Bassam of Brighton

The point I seek to make is that the nature of the offence that the noble Baroness seeks to add to the list is a catch-all and the by-law is rather more focused. The point just made by the noble Baroness is a relevant one, but I believe that those who live in small towns and villages that are visited by yob culture would see that behaviour as a threat to their peace of mind and the peaceful nature of their neighbourhood.

A new offence should be created only where it is a proportionate and commensurate response to the social problem identified. In many public places, particularly in the wilder and less populated parts of the country, a person can urinate or defecate without any risk of causing either offence or a public health risk. It seems unreasonable to criminalise conduct of that kind in an environment where there may be no provision of public toilets and no alternative to those upon whom nature calls. For these reasons, adoptive law such as by-laws is an appropriate response to such problems. A by-law is made locally and can be reasonably expected to meet local conditions, such that the provision of public toilets will be taken into account when the by-law is made. The local authority takes the decision in those circumstances whether to prosecute an offender. I believe that I have said enough to explain why the Government cannot accept that new proposition.

I have some sympathy for the Member for North Southwark and Bermondsey who said of this proposed offence in another place: Every male aged over 18, including me, admitted to having done it when caught short … We must be cautious about making it a criminal offence because anyone could be caught. The answer is more accessible public toilets, not more offences".—[Official Report, Commons. Standing Committee F, 6/2/01: col. 38.] We cannot have a generally applicable offence which criminalises almost everyone at some point in their lives. I do not believe that that is a proper use of the law, and I do not think that noble Lords opposite would so regard it. For those reasons, we cannot accept those amendments.

Viscount Goschen

The Minister relies on the argument that "public place" covers a wide variety of situations: on the one hand, a forest and on the other hand, the urban situation. I note that in Clause 13 in Chapter 2, in connection with alcohol consumption in designated public places, the Bill provides a mechanism to identify public places from which drinking may be banned. For example, it gives the local authority the ability to designate an area as a designated public place. Would not something on the lines of the mechanism provided in Clause 13 remove the noble Lord's objection with regard to what would clearly be anti-social behaviour which we would all recognise when we saw it?

Lord Bassam of Brighton

It might, but, as I believe I argued earlier, we believe that the issues covered by this particular amendment are dealt with in law in any event, and also by adoptive by-laws. We argue that, even if there is a genuine problem—I fully accept that there may well be one in Westminster, Kensington and Chelsea, or perhaps even parts of Brighton and Hove—this is not the most appropriate way to deal with it.

I turn to street trading offences. The Government believe that it is not appropriate to bring offences with a financial motive of any kind into the scope of the penalty notice scheme. Unlawful street trading falls into that general category, and there would be a number of potential difficulties involved. Moreover, it is hardly an offence of disorder. There is a danger that a penalty notice awarded on the street for this kind of offence would have little more effect on the perpetrator than simply being moved on. He might simply seek to recoup the cost of the penalty through increased activity elsewhere. Further, the issuing of a penalty notice for this offence, whether on the street or at a police station, would mean that no consideration could be given to seizure by the police and eventual forfeiture of items used in the commission of the offence, which is a particularly important tool to deal with some examples of this type of activity. We believe that penalty notices are unsuitable for this type of crime and are, therefore, unable to accept the amendment.

Finally, Amendment No. 6 seeks to limit the power of the Secretary of State in his exercise of the power in Clause 1 to add new offences to the list of penalty offences. The proposed amendment would allow the addition by order of an offence only if the maximum penalty for it did not exceed level 3, which is £1,000 or three months in prison or both. The list of penalty offences in Clause 1 already includes four offences which exceed the maximum penalty. I am aware that noble Lords opposite seek to remove three of these, but this still leaves the offence of throwing fireworks in a thoroughfare, which carries a maximum fine not exceeding level 5 (£5,000), to which no one appears to object as a penalty offence. But it may be that it is only offences added by order that concern noble Lords opposite. If so, I give them the assurance that the new system is designed to deal with minor examples of disorder offences only, even if the penalty offence listed covers a broad spectrum of behaviour. We have made that clear on many occasions.

Moreover, the Government accepted an amendment in another place to make this order-making power subject to the affirmative resolution procedure. So there is no danger of new offences being added without Parliament's agreement. While I appreciate the motivation behind the amendment, I am certain that we have put in place enough and sufficient safeguards to dispense with what might otherwise be considered an unnecessary restriction on the power of the Secretary of State.

The noble Lord, Lord Thomas of Gresford, made a point about the reduction of the burden of proof. It is worth saying to the noble Lord that there is in the legislation an absolute right to ask for a trial. That point was reflected in the Joint Committee on Human Rights. It said that, we consider the right to request trial is adequately protected,"— and this is the noble Lord's point— bearing in mind that a suspect who has a reasonable excuse for failing either to pay the penalty or elect for trial within 21 days can apply to a magistrates' court to set aside any line in the interests of justice". The other point made by the noble Lord, Lord Thomas of Gresford, related to penalty notices being suitable only in clear cases. On-the-spot penalties should not be issued where further investigation is required. We are quite clear on that point. We will ensure it is covered in the guidance.

The noble Lord, Lord Cope, said that criminal damage needs to be looked at in some detail because it could be that it is more serious than perhaps is immediately apparent. The point is that careful consultation with the complainant and a careful view of the extent of any damage needs to be made prior to a police officer effecting an arrest.

I hope I have covered most of the comments made. This is a significant amendment because it deals in part with an important point of principle and in part with points and matters of detail.

Lord Thomas of Gresford

I am most grateful to the Minister for accepting my intervention on whether or not this is a minimising of the effect of criminal offences. The mechanism of the Bill envisages that some of these notices should be issued in the police station. Under Clause 2 of the Bill they have to be issued by an authorised officer. What is envisaged is that—for example—someone who is suspected of having committed an offence under Section 5 of the Public Order Act could be arrested, taken to a police station and, instead of being charged and dealt with through the ordinary processes of the criminal justice system, given a penalty notice. That is why I used the word a "soft" option.

The provision would enable people who might otherwise have found themselves in court facing the possibility of larger sentences, even imprisonment under Section 5, being given the option of a penalty notice which would save the police an enormous amount of trouble in putting a file together and going to the CPS. The danger of the provision is that penalty notices will be issued where prosecutions would in the past have been carried out.

Lord Renton

The noble Lord, Lord Thomas of Gresford, has made some very important points. One matter which arises out of them worries me. Have the Government envisaged the possibility that a police officer when trying to get the accused person to pay this lower penalty has the opportunity of saying to the accused person, "If you don't pay this, you will be brought to trial and it will cost you much more"? That is a factor we must bear in mind. There will be a great temptation for the police to say that to criminals.

Baroness Buscombe

I speak in response to a number of points made by the Minister. It is very important to repeat the words of my noble friends Lord Windlesham and Lord Renton: first, it is the concept of the fixed penalty which is of real concern; and, secondly, can it actually work in practice?

With regard to criminal damage, while the Minister has made it clear that the Government have been careful not to include the more serious offences—for example, endangering life—the parameters are not actually set out on the face of the Bill. We feel quite strongly about that matter. The Government are saying that they want to have the opportunity, with the benefit of the Bill, to see how the provision works in practice. But surely, with something so new and different—this new hybrid vehicle, as I keep calling it—it would make sense to have a pilot scheme of some kind to see if it works. As we go through our amendments we shall be saying again and again that in practice it is very hard to see how the provision will work. It will be very impractical.

With regard to Amendments Nos. 4 and 36, I am disappointed obviously with what the Minister said. Yes, there are by-laws in place, but the Minister knows that they are much more difficult to invoke. The noble Lord is concerned that public policy should take precedence over them. We believe that to be the case also. However, the Minister really is saying that we just have to wait until the situation gets worse. The reality is that—I quoted Westminster City Council—this is a serious problem already in our cities; a problem which perhaps the Government are not in touch with. It is one which affects many people's lives and one, we feel, which is absolutely suited to the on-the-spot fine. The Government say that they want to avoid criminalising all of us in one fell swoop. Later I shall argue that the alcohol-free zone does just that. There is no difference.

We feel strongly that here is an opportunity with—as we called it at Second Reading—a "rag bag" of a Bill to use the provision to include a number of clear-cut offences, such as the offence of urinating and defecating in public, to act as a deterrent against behaviour which is happening more and more. One of the reasons is that many public lavatories have been or are being closed in cities for reasons of which we are well aware. But that is no excuse for allowing this frankly disgusting behaviour to take place, as it now does a great deal, in our cities.

In relation to street trading, I repeat what I said a few moments ago. I feel that the Government are being pretty defeatist when they say that there is no point in having this as an on-the-spot fine offence because the street trader will just move his illegal trading elsewhere. Surely the whole point is that with all of these on-the-spot penalty offences offenders will be able to offend again and again, particularly if they move around the country, without having any deterrent. The provision deals with minor clear-cut offences. Street trading is an offence—the evidence is tangible—that is much more suited to this provision than criminal damage. That we have proposed under Amendment No. 3 with regard to harassment and abusive behaviour. Therefore, we feel considerable disappointment with the Minister's response.

6.30 p.m.

Lord Phillips of Sudbury

We have had an interesting debate on an important part of the Bill. We are disappointed that the Government appear to have taken to heart none of the many points that were made. I think it is fair to say that only one speaker in this mini-debate has wholeheartedly supported the Government. We have tried to be constructive in saying to the Government, "Yes, let us give this a go. We have a good deal of doubt about it, but let us give it a chance and see how it runs". The noble Baroness, Lady Buscombe, made the point that it would have been—

Lord Bassam of Brighton

I accept the point that this is the stage at which we should be as constructive as we possibly can be about elements of the Bill. I make this observation. We have issued some draft guidance on the way in which the fixed penalty notice scheme will work. If Members of the Committee are concerned about the operation of the detail—a good deal of the discussion has been about the detail—we want to hear more precisely about those concerns. We need to put the legislation in place so that the scheme can work. We intend to pilot the scheme with the close co-operation of the police. There is always an opportunity to see how the scheme works on the ground. That is our intention. We want to make these measures as practicably based as possible. I hope that those are taken as constructive observations.

Having listened to what the noble Baroness, Lady Buscombe, said, I appreciate that there are problems with urination, defecation and so on in urban areas. I do not dismiss those concerns at all. I look forward to receiving correspondence from Westminster Council on the size of the problem and the shortcomings that it might feel exist in the current legislation. I very carefully drew attention to legislation on the statute book that might be of help.

Members of the Committee have made constructive comments. Those comments were designed for the purpose of taking forward the debate. I do not dismiss those concerns at all.

Lord Phillips of Sudbury

I am grateful for the Minister's assurance. However, it does not satisfy us as we are of the view that if the Government were sensible they would limit the type and number of offences for which on-the-spot fines can be levied. I shall not go over our arguments for believing that beyond saying that many speakers in this mini-debate have referred to the difficulties in establishing the necessary evidence and the necessary mental element in this truncated procedure. I think of what the noble Lord, Lord Windlesham, said. I think also of what the noble Lord. Lord Cope, said in response to the Minister's point about compensation orders, which cannot be imposed under the system of on-the-spot fines. That point was laboured effectively by my noble friend Lord Thomas of Gresford.

For all those reasons, we are not content with leaving matters as they are. What the Minister said about guidance—the noble Lord, Lord Brennan, made the point—was not satisfactory. Guidance is guidance. The police have the job of working the scheme. It is their discretion and their authority that will be at stake. Indeed, it would be dangerous if the Home Secretary's non-statutory guidance could tie the hands of police forces. We think that the discretions are too wide and that the experiment is too wide. If the Government were to accept the proposed de-limitations, it would be helpful all round. I am inclined to test the opinion of the Committee.

6.34 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 107.

Division No. 2
CONTENTS
Addington, L.	Phillips of Sudbury, L. [Teller]
Beaumont of Whitley, L.	Razzall, L.
Bradshaw, L.	Redesdale, L.
Clement-Jones, L.	Renton, L.
Falkland, V.	Rodgers of Quarry Bank, L.
Goodhart, L.	Roper, L.
Hamwee, B.	Scott of Needham Market, B.
Harris of Richmond, B.	Shutt of Greetland, L.
Lester of Herne Hill, L.	Thomas of Gresford, L. [Teller]
Ludford, B.	Thomas of Walliswood, B.
Mackie of Benshie, L.	Tope, L.
McNally, L.	Wallace of Saltaire, L.
Mar and Kellie, E.	Walmsley, B.
Miller of Chilthorne Domer, B.	Watson of Richmond, L.
Northover, B.	Wigoder, L.
Oakeshott of Scagrove Bay, L.	Williams of Crosby, B.
Park of Monmouth, B.	Windlesham, L.

NOT-CONTENTS
Acton, L.	Hughes of Woodside, L.
Ahmed, L.	Hunt of Chesterton, L.
Amos, B.	Hunt of Kings Heath, L.
Archer of Sandwell, L.	Irvine of Lairg, L. (Lord Chancellor))
Bach, L.
Bamett, L.	Islwyn, L.
Bassam of Brighton, L.	Jay of Paddington, B. (Lord Privy Seal)
Berkeley, L.
Bernstein of Craigweil, L.	Jenkins of Putney, L.
Blackstone, B.	Judd, L.
Blease, L.	Kennedy of The Shaws, B.
Brennan, L.	King of West Bromwich, L.
Brett, L.	Lipsey, L.
Brooke of Alverthorpe, L.	Lockwood, B.
Brookman, L.	Lofthouse of Pontefract, L.
Burlison, L.	Longford, E.
Carter, L. [Teller]	Macdonald of Tradeston, L.
Chandos, V.	Mclntosh of Haringey, L. [Teller]
Clarke of Hampstead, L.
Clinton-Davis, L.	Mclntosh of Hudnall, B.
Cohen of Pimlico, B.	MacKenzie of Culkein, L.
Crawley, B.	Mackenzie of Framwellgate, L
David, B.	Mallalieu, B.
Davies of Coity, L.	Merlyn-Rees, L.
Davies of Oldham, L.	Milner of Leeds, L.
Dean of Thornton-le-Fylde, B.	Mitchell, L.
Desai, L.	Molloy, L.
Dubs, L.	Morris of Manchester, L.
Elder, L.	Nicol, B.
Evans of Parkside, L.	Patel of Blackburn, L.
Evans of Temple Guiting, L.	Prys-Davies, L.
Falconer of Thoroton, L.	Puttnam, L.
Faulkner of Worcester, L.	Ramsay of Cartvale, B.
Filkin, L.	Rendell of Babergh, B.
Fyfe of Fairfield, L.	Rogers of Riverside, L.
Gale, B.	Sainsbury of Turville, L.
Gibson of Market Rasen, B.	Scotland of Asthal, B.
Gilbert, L.	Serota, B.
Goldsmith, L.	Shore of Stepney, L.
Gordon of Strathblane, L.	Simon, V.
Goudie, B.	Stone of Blackheath, L.
Gould of Potternewton, B.	Symons of Vemham Dean, B.
Graham of Edmonton, L.	Thornton, B.
Grenfell	Tomlinson, L.
Hardy of Wath, L.	Turnberg, L.
Harris of Haringey, L.	Turner of Camden, B.
Haskel, L	Uddin, B.
Haymen, B	Walker of Doncaster, L.
Healey, L	Warwick of Undercliffe, B.
Hilton of Eggardon, B.	Whitaker, B.
Hogg of Cumbemauld, L.	Whitty, L.
Hollick, L.	Wilkins, B.
Hollis of Heigham, B.	Williams of Elvel, L.
Howells of St. Davids, B.	Williams of Mostyn, L.
Hoyle, L.	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.43 p.m.

[Amendments Nos. 2 to 6 not moved.]

Clause 1 agreed to.

Clause 2 [Penalty notices]:

Baroness Buscombe moved Amendment No. 7: Page 3, line 3, leave out "has reason to believe" and insert "believes beyond reasonable doubt

The noble Baroness said: The subject addressed in Amendment No 7 has already been aired to some extent this evening. Clearly, it is important in relation to the overall Bill. We on these Benches have real reservations with regard to the burden of proof required for this hybrid offence, which has been likened to a caution.

If the offence is treated like a caution then, as would be the case with a parking offence, that offence is civil as no conviction would result, and payment of a fine serves as proof of admission of the offence. However, can the Minister explain what will happen when a penalty notice is issued? When the notice is given, surely the police officer will be acting as judge and jury, deciding for him or herself whether the alleged offence took place and whether it was of a minor nature, to the extent that an instant fine is the course of action under the circumstances, as opposed to arresting the person. In that case, on arrest the burden of proof will shift to "beyond reasonable doubt".

A police officer faced with a situation where, for example, a fierce brawl has broken out between warring neighbours, will have to make subjective decisions as regards, first, who has been wronged and, secondly, whether that wrong is of such a degree that it should be an arrestable offence rather than suited either to a caution or to an on-the-spot penalty fine. As the Bill stands, the police officer only has to have "reason to believe" that a particular party is in the wrong in order to present them with a fixed penalty notice there and then. If, however, the police officer decides that the harm caused is of such severity that the person whom they believe to be the party in the wrong should be arrested and tried under Section 5 of the Public Order Act 1986, the police officer knows that he or she will have to take time to complete the paperwork and persuade a court that they believed beyond reasonable doubt—in my book that means that they must be almost absolutely sure as opposed to only "thinks probably"—that the person arrested was in fact the wrongdoer in that brawl.

Given the lack of police resources, along with the call of bureaucratic demands on police officers' time, I have a hunch that this will mean that, even in the most severe circumstances and in particular where there is doubt about who of the two warring factions was in the wrong, nine times out of 10 the police officer will be inclined to issue an on-the-spot fine. Can this be right? Where is the deterrent here? Surely this means that the Government should change their mantra from "tough on crime" to "quick fix on crime".

Alternatively, there is the possibility—one that was referred to by the noble Lord, Lord Phillips of Sudbury, when speaking to Amendment No. 1—that perhaps we shall see a popular move on the part of offenders to reject the opportunity to pay a fine on the spot, because they will know that their case has far more chance of being thrown out in a court of law as the burden of proof shifts to "beyond reasonable doubt".

Where do the Government stand in relation to repeat offenders? Let us take the example of hoax callers. We have been told that no national register is to be kept of such offences, in which case a hoax caller will be able to move with ease and continue his or her despicable behaviour, at the mere risk of picking up a fine.

I repeat that we are in favour of introducing on-the-spot penalties for disorderly behaviour. However, we are seriously concerned to ensure that our criminal justice system is not diminished. It is our duty as legislators to uphold and enhance our system of justice, not to compromise our criminal procedures in order to try to apply a quick fix to the system. We should not skirt round the issue of lack of resources. The system must be adequately resourced and thereby improved.

We would do well to recall the words of the Prime Minister when he said: "I want to be associated with eye-catching initiatives, especially on law and order". Eye-catching initiatives should not lead to knee-jerk legislation. In the words of my noble friend Lord Windlesham, when he referred to this on Second Reading, this will lead to, thin ice in terms of criminal procedure".—[Official Report, 2/4/01: col. 677]

Those who are unable to pay will be sent to prison. If these fines are supposed to be, in the words of the Secretary of State, equivalent to a caution, is prison the sensible route for a person who fails to pay for that caution? What if they cannot pay? I beg to move.

Lord Renton

Surely it is in the interests of justice that the Government should accept the amendment. The clause as it stands at the moment—which has a purely subjective test on the question of whether an offence has been committed—is wrong. It is a subjective test at the moment because the words, A constable who has reason to believe", refer to his own reason to believe, not to an objective reason.

By proposing that the constable should believe beyond reasonable doubt, my noble friend seeks to make the constable subject to an objective test, which is right in the circumstances. I am afraid that unless the amendment: is accepted there will be injustices.

Lord Thomas of Gresford

We support the amendment. The way the criminal justice system works at the moment is that a police officer may arrest someone for an arrestable offence on suspicion or reasonable belief. However, he then has to consider whether that person should be charged. When he comes to the charging point, he has to take a decision as to whether there is sufficient evidence to persuade a court beyond reasonable doubt that an offence has been committed. The matter will then ordinarily go to the CPS, which will apply the same test; that is, is there at least a 50 per cent chance that a court will be satisfied beyond reasonable doubt of the guilt of the accused person?

If the Government choose to introduce an alternative way of dealing with a criminal offence by the use of these fixed penalties, then, as the noble Lord, Lord Renton, pointed out, the same objective tests should be used for the alternative procedure as would normally be used by those charging and by the CPS in taking a decision to prosecute. That is a sensible way forward and I support the amendment.

Lord Windlesham

As we have heard in previous speeches on the amendment, the standard of proof is that a police officer has reason to believe that a person over the age of 18 has committed a penalty offence. As the noble Lord, Lord Renton, argued so effectively, that must be the police officer's own reason to believe and must be subjective. How can it be anything else? I believe that this is another—imperceptible perhaps to some, but nevertheless gradual—erosion of civil liberties, as we have seen in other criminal justice measures which have been brought before this House during the current Parliament.

I do not accuse the Government of any bad motives; I do not think that it is deliberate. I think that these are consequences which have not been thought out. It is the law of unintended consequences that often does much harm before the situation is finally put right by subsequent legislation, often when the harm has been done.

We must remember that the concept of the burden of proof describes the duty which is on the prosecution in a criminal trial to establish the facts beyond reasonable doubt. As all law students know, this has long been regarded as a golden thread in our criminal jurisprudence. It should surely be maintained when there are alternative, novel forms of penal sanction and when we are not sure where they will lead. During the initial stages they do not involve an appearance in court, but, as the noble Lord, Lord Thomas, pointed out, that may be the consequence at the end of the day.

At present the Bill requires that a police officer has only to have reason to believe that a penalty offence has been committed in order to issue a fixed penalty notice. As I have argued, this standard obviously is less than the criminal burden of proof. So the effect of accepting a fixed penalty notice will be to accept that behaviour has occurred to a criminal standard; that the behaviour is criminal behaviour. Police officers imposing penalty notices should therefore surely be required to be satisfied to this standard before being able to impose them.

The noble Lord will need notice for this question, so I ask him and those who advise him to listen closely. If an accused is brought to a police station, does he have access to legal aid and the duty solicitor? If he is accused of a criminal offence, he does; but I do not know whether or not it has been thought out what will happen if he is not accused of an arrestable offence at this stage. It is possible that that question is not right in the front of the Minister's mind either, but there must be those who can advise him and who, by the time we reach the end of the debate, can give an answer. For those reasons, I strongly support the amendment.

Viscount Goschen

In regard to the issue of the level of the burden of proof, perhaps I may ask the Minister two factual questions about the procedure which will occur if such circumstances arise. If a person is arrested for, perhaps, being drunk and disorderly or for criminal damage and is offered the penalty notice, as I understand it, that is the equivalent of a 21-day option. He can accept it and pay the fine, or he can during that period ask to be tried. If he does ask to be tried, will the fact that he originally wished to take the fixed penalty option weigh with the court? Will that be brought up in court? In other words, will he have made an admission of guilt? Will that count as an admission of guilt or not?

Similarly, if the individual—who may well, if it is an alcohol-related charge, not be in a fit state to make such a decision—should say to the police constable, "No. Under no circumstances do I accept this. I will see you in court", can he then change his mind the other way? In other words, is there a two-way 21-day option? Can be decide at a later date—perhaps when he sobers up the next morning—"Oh yes, I did do that and I shall be better off with a fixed penalty"? Can he do that?

Lord Phillips of Sudbury

At first sight the amendment looks as though it puts a torpedo below the waterline of the whole idea of on-the-spot fines. I do not believe that it does. In a strange way it assists the process that the Government are seeking to put in place, albeit that it may reduce the number of occasions on which constables will use the power. The fact that it will give further pause to police before they use the on-the-spot fine will, in the long run, prove of benefit to the scheme as a whole. That is partly why we support the measure.

7 p.m.

Lord Bassam of Brighton

The amendment concerns the circumstances in which a constable may issue a penalty notice. It would have the effect of changing the test that a constable would have to apply before issuing a penalty notice. Instead of having reason to believe that an offence had been committed he would have to believe beyond reasonable doubt that an offence had been committed.

It needs to be understood that there is a degree of subjectivity in all of these matters. Police officers are used to making subjective judgments from time to time. It is part of their job as operational officers. The important point is that it must be believed that the test "has reason to believe" is appropriate. We believe that it is appropriate to what we have described as a lower order of offences. It is appropriate also in terms of the other part of the scheme; namely, that the behaviour must clearly have occurred, that it must have been plain on the face of it that that was exactly what was going on, and for those reasons the police officer "has reason to believe" that an offence has been committed. It must have been plain to the officer that he or she had good reason to believe that offensive behaviour had occurred. I agree that sometimes the test will be applied in a subjective way. That is the way in which policing is conducted.

We believe that the test is appropriate for a scheme such as this. The scheme is based on consent; it has no impact on the fundamental rights of the individual;a similar test is applied in the case of road traffic fixed penalty notices, so it is consistent with fixed penalty notices in other instances; and if on receiving a fixed penalty notice an individual does not accept the allegation, he or she may challenge that allegation in court, where the test of proof—of the matter being "beyond reasonable doubt"—would apply. The provision does not qualify that in any way. In reference to a more rigorous and objective test, if people do not like the suggestion of conforming to a fixed penalty notice, they have the important option to test the veracity of the evidence. In this way, the right of a person who receives a penalty notice to a trial of the allegations is preserved and the higher threshold is therefore not necessary. For those reasons we cannot accept the amendment.

A number of questions have been asked. The noble Lord, Lord Windlesham, raised one that is not contained in my immediate briefing, as the noble Lord accurately surmised, and I should like to reflect the point he raised.

The noble Baroness, Lady Buscombe, made some points about how a police officer might consider giving a penalty notice. The police officer will know, if the alleged offender asks for a trial, that he will have to back up the allegation with evidence in court in a full test of the proof. That is the more important consideration. The police should look on the scheme of fixed penalty notices as part of a range of approaches to dealing with some of the problems with which we are all trying in our different ways to grapple. The police already have the power to caution or to give informal warnings. This is a further option. As I said, police officers already exercise discretion in deciding how to deal with an offence. There is no reason to believe that they will use these powers any less appropriately than they use other powers.

The example given by the noble Baroness had to do with warring factions. I suspect that that is exactly one of the circumstances in which a fixed penalty notice may be less appropriate. It is important in such circumstances that evidence is properly tested.

Baroness Buscombe

Perhaps I may interrupt the Minister. The point I was trying to make was this. There may be a situation where an on-the-spot fixed penalty notice may be less appropriate, but the police officer may weigh up quickly in his mind that given the fact that the case will take up a great deal of time in form-filling and that if the case goes to court he will be involved with a shift in the burden of proof beyond reasonable doubt, it will be much easier to hand out an on-the-spot penalty—and our criminal justice system is thereby diminished.

Lord Bassam of Brighton

I cannot accept that point. In effecting an arrest, the officer will have to make a judgment. He will know that if he wishes to go along the route of a fixed penalty notice, it is not an absolute: it is not in his discretion; there is another party to this. If the individual does not wish to accept the fixed penalty notice, he or she can ensure that there is a proper legal challenge.

Baroness Buscombe

Supposing that the offender prefers to accept the on-the-spot penalty, he does not have to go through the embarrassment of a court case, even though the offence that he has committed is quite severe.

Lord Bassam of Brighton

I keep returning to the important point that these will be lower order offences. We need to focus on that and I hope that the noble Baroness can accept it. The noble Baroness must choose whether or not she supports fixed penalty notices. Having heard some of her points, I am not sure that she does. If she accepts the principle, as I thought she had—

Baroness Buscombe

We accept the fixed penalty notice in principle, but we should prefer the burden of proof that a police officer must apply when deciding whether to go for a fixed penalty notice to be the same as that used in a court of law; namely, that the matter is "beyond reasonable doubt". If, in the words of the Minister, we are talking about clear-cut offences that have occurred, what is the problem with retaining the same threshold as already applies in a court of law? Why lower the threshold for the burden of proof?

Lord Bassam of Brighton

What we are trying to capture here, with a range of other measures including cautions, final warnings and so on, is in part anti-social behaviour. If we were to apply the higher burden of proof, the test that a matter is "beyond reasonable doubt", I suspect that an argument might be made that fixed penalty notices were being used for more serious offences. I have made it plain that we do not believe that that should be the case. The noble Baroness cannot have it both ways.

We are trying to use this provision and focus it on a lower order of offences to ensure that we capture such offences as anti-social behaviour. Yes, I accept that the police will have a judgment to make. They will have to arrive at a proportionate decision. I am sure that, with guidance and training and with their understanding of the way in which it is intended that the scheme should work, and given our belief that we shall need to pilot these provisions carefully with the police and work out how best use can be made of these proportionate measures, the scheme should work well.

Lord Renton

Having listened carefully to the Minister, I hope that he will give this matter further thought between now and Report stage. What may happen is this. A constable deciding to ask an accused person to pay the immediate penalty may be influenced by mere folly or by excessive zeal. He may have no valid reason but may hope to get away with it. If we simply stick to the subjective test, he may get away with it, or—and this will lead to public expense—the accused person may think the circumstances unreasonable and may refuse a penalty and have to be taken to court. I implore the noble Lord, in the public interest, to bear those factors in mind.

Lord Phillips of Sudbury

I merely want to add to the accurate comment of the noble Lord, Lord Renton. There is a fault-line running through the Minister's argument about applying on-the-spot fines to what he terms "lower order offences". All such offences can be taken to court, in which case they are not lower order offences at all; they are ordinary offences for which the normal criminal test applies. Perhaps the Minister will tell the House whether there is any example in our legal system of this duality of test applying in the way that it does in this case. I doubt whether there is. If there is, it should not be there; it is a logical nonsense

Lord Thomas of Gresford

What we are really discussing is lower-order plea bargaining. Public policy in this country has always set its face against plea bargaining which involves this sentence. Time and again, the Court of Appeal has said that the judge who imposes the sentence should play no part in the decision as to whether a prosecution is continued, what charges are accepted, and so on. We are talking about the police station where the police officer says, "Well, look, I'm not really sure that I can get a conviction as a result of the disorderly conduct for which you've been arrested. I can try. I could take you to the court for affray; I could take you to the court under Section 5 and, if I get a conviction, you would get something on your record that will always be with you. On the other hand, if you pay this penalty under the notice, you will hear no more about it. It won't be on your record and it won't be a conviction. Just pay up and that'll be the end of it". That is the whole problem with this system.

Lord Hurd of Westwell

I came entirely fresh to this argument. However, I have listened most carefully to what has been said during the past half-hour. The arguments in support of the amendment have been put forward with overwhelming reason and force. This is a serious matter; indeed, more serious than might immediately appear to be the case. We all know that the police will do their best; but we all know that police officers may be tempted to use this facility in a way that was doubtless not intended by Ministers. However, the temptation would be there, and it ought not to be. I urge the Minister to think again and to accept the amendment.

Baroness Buscombe

I wonder whether the Minister intends to say anything further on the amendment.

Lord Bassam of Brighton

I shall certainly reflect upon all the comments that have been made. However, I make that observation with no commitment to take such reflection beyond that point. I accept that the arguments have been put honestly and with integrity, coupled with a concern to get the matter right I return to the point that I made at the outset of my response; namely, that this proposition will assist law enforcement. It will enable police officers to make reasonable judgments as to what is the right and appropriate way forward. It will add to a panoply of ways of tackling yobbish and anti-social behaviour. Indeed, it will entail a degree of consent between the police officer on the one hand, and, on the other hand, the person who is the subject of the allegation and who the police officer reasonably believes has committed an offence that can best be dealt with through a fixed penalty notice. Moreover, there are reasonable measures in place to ensure that the individual's rights are properly protected. I am not prepared to go any further on the amendment.

Lord Windlesham

Perhaps I may add this as a footnote. When he attended a meeting last week to which representatives of all parties who are interested in the Bill were invited, the Home Secretary made it quite clear that he would take careful account of what was said in this House. We appreciated that fact. I ask the Minister to report back to the Home Secretary in person what has been said. Perhaps he will draw attention to the fact that the noble Lord, Lord Hurd, who has held very high responsibility in this exact field, has added his own weight after hearing the argument.

Lord Bassam of Brighton

I feel duty bound to do exactly as the noble Lord suggests. My right honourable friend the Home Secretary did indeed make that commitment.

Baroness Buscombe

Notwithstanding the commitment that the Home Secretary made last week and despite the fact that it is early days yet in this Committee stage, I have to say that I am a little disappointed that the Government have responded to a number of the points raised this evening in exactly the same way as they did both in Committee and on Report in another place. Therefore, I do not have a great deal of faith that the arguments so forcefully put forward this evening will make any difference. I strongly believe that the amendment would add credibility to the whole principle that the Government are determined to take forward in relation to this new vehicle—this hybrid offence. That being the case, we should like to press the amendment and test the opinion of the Committee. We believe that it should be accepted.

7.15 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 77; Not-Contents, 98.

Division No. 3
CONTENTS
Addington, L.	Astor of Hever, L
Allenby of Megiddo, V.	Attlee, E.
Ashcroft, L.	Barker, B.
Astor, V.	Blatch, B.

Bradshaw, L.	Mackie of Benshie, L.
Bridgeman, V.	McNally, L.
Brougham and Vaux, L.	Maddock, B.
Burnham, L. [Teller]	Mancroft, L.
Buscombe, B.	Mar and Kellie, E.
Byford, B.	Marlesford, L.
Carnegy of Lour, B.	Masham of Ilton, B.
Clement-Jones, L.	Miller of Chilthorne Domer, B
Colwyn, L.	Monson, L.
Cope of Berkeley, L.	Northbrook, L.
Craigavon, V.	Northesk, E.
Cumberlege, B.	Northover, B.
Dixon-Smith, L.	Oakeshott of Seagrove Bay, L.
Falkland, V.	Perry of Southwark, B.
Fookes, B.	Phillips of Sudbury, L.
Gardner of Parkes, B.	Razzall, L.
Geddes, L.	Renton, L.
Glenarthur, L.	Rodgers of Quarry Bank, L.
Glentoran, L.	Roper, L.
Goodhart, L	Scott of Needham Market, B.
Goschen, V.	Seccombe, B.
Greenway, L.	Selborne E
Hambro, L.	Shutt of Greetland, L.
Hamwee, B.	Skelmersdale, L.
Harris of Peckham, L.	Stewartby, L.
Harris of Richmond, B.	Thomas of Gresford, L.
Henley, L.[Teller]	Thomas of Walliswood, B.
Hodgson of Astley Abbotts, L.	Tope, L.
Hurd of Westwell, L.	Waddington, L.
Jopling, L.	Wallace of Saltaire, L.
Kingsland, L.	Walmsley, B.
Ludford, B.	Watson of Richmond, L.
Luke, L.	Williams of Crosby, B.
Lyell, L.	Windlesham, L.
	Young, B.

NOT-CONTENTS
Acton, L.	Gordon of Strathblane, L.
Ahmed, L.	Goudie, B.
Amos, B.	Gould of Potternewton, B.
Archer of Sandwell, L.	Graham of Edmonton, L.
Bach, L.	Grenfell, L.
Barnett, L.	Hardy of Wath, L.
Bassam of Brighton, L.	Harris of Haringey, L.
Berkeley, L.	Haskel, L.
Bernstein of Craigweil, L.	Hayman, B.
Blackstone, B.	Hilton of Eggardon, B.
Blease, L.	Hogg of Cumbernauld, L.
Brennan, L.	Hollick, L.
Brett, L.	Hollis of Heigham, B.
Brooke of Alverthorpe, L.	Hoyle, L.
Brookman, L.	Hughes of Woodside, L.
Burlison, L.	Hunt of Chesterton, L.
Carter, L. [Teller]	Hunt of Kings Heath, L.
Chandos, V.	Irvine of Lairg, L. (Lord Chancellor)
Clarke of Hampstead, L.
Clinton-Davis, L.	Islwyn, L.
Cohen of Pimlico, B.	Jay of Paddington, B. (Lord Privy Seat)
Crawley, B.
David, B	Jenkins of Putney, L.
Davies of Coity, L.	Kennedy of The Shaws, B.
Davies of Oldham, L.	King of West Bromwich, L.
Desai, L.	Lea of Crondall, L.
Dubs, L	Lipsey, L.
Elder, L.	Lockwood, B.
Evans of Parkside, L.	Lofthouse of Pontefract, L.
Evans of Temple Guiting, L.	Macdonald of Tradeston, L.
Falconer of Thoroton, L.	Mclntosh of Haringey, L. [Teller]
Faulkner of Worcester, L.
Filkin, L	Mclntosh of Hudnall, B.
Fyfe of Fairfield, L.	MacKenzie of Culkein, L.
Gale, B	Mackenzie of Framwellgate, L.
Gibson of Market Rasen, B.	Mallalieu, B.
Gilbert, L.	Mitchell, L.
Goldsmith, L.	Molloy, L.

Nicol, B.	Taylor of Blackburn, L.
Patel of Blackburn, L.	Thornton, B.
Puttnam, L.	Tomlinson, L.
Ramsay of Carl vale, B.	Tumberg, L.
Rea, L.	Turner of Camden, B.
Rendell of Babergh, B.	Uddin, B.
Rogers of Riverside, L.	Walker of Doncaster, L.
Sainsbury of Turville, L.	Warwick of Undercliffe, B
Scotland of Asthal, B.	Whitty, L.
Simon, V.	Wilkins, B.
Stoddart of Swindon, L.	Williams of Elvel, L.
Symons of Verriham Dean, B.	Williams of Mostyn, L.
	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.25 p.m.

Baroness Buscombe moved Amendment No. 8: Page 3, line 3, after "aged" insert "16 or over, or (in the case of a penalty offence which may only he committed by a person aged 18 or over) aged

The noble Baroness said: This amendment would reduce to 16 the age at which a person could receive a notice. There is no doubt that the kinds of offences for which Part 1 of this Bill are intended are often committed by those under the age of 18. The House of Commons Library estimates that 25 per cent of all offences are committed by persons under 18 and many of those are in the 16 to 18 age range.

Given the kinds of offences set out in Clause 1, it will surely be extremely hard for police officers to differentiate between offenders over and under the age of 18. In Committee in another place the Government argued that police officers have to deal with that situation every day. However, with respect, they have not had to deal with this procedure hitherto. The provision will also mean that where a group of young people commit an arrestable offence, those over the age of 18 can get off with a fine if they can pay it, but those under the age of 18 will be arrested and tried in a court of law, can be convicted and thereby earn themselves a criminal record. Is that what the Government intend? And is it reasonable?

We know that the Government are reluctant to invoke any new system which might upset the reforms to the youth justice system introduced in the Crime and Disorder Act 1998. We on these Benches are, however, not at all persuaded that it is right that the kind of minor offences envisaged by the Government to apply to on-the-spot penalty notices should not apply to 16 to 18 year-olds. Why cannot these penalty notices complement the progressive system of reprimand in certain limited circumstances as listed in Clause 1 of the Bill? Would they not act as a useful deterrent showing that the law will bite without delay if people are intent upon disorderly and anti-social behaviour? I beg to move.

Lord Bassam of Brighton

The question of whether under- 18s should be included in the schemes is a very significant one. As my right honourable friend the Home Secretary said in another place, a balanced judgment has been made not to include the under-18s in these provisions. The reforms to the youth justice system introduced in the Crime and Disorder Act 1998 are in place and working well and, tempting though it might be, we feel that it is better not to destabilise that position by adding penalty notices to the range of options available.

At present, a person under 18 is subject to a strictly progressive system of reprimand, final warning and charge in which there is positive intervention by youth offending teams to confront the offender with the consequences of his or her actions. The addition of financial penalties of the kind set out in this chapter of the Bill do not fit well into that tightly controlled and much praised framework and risk causing serious disruption to it.

Some people under 18 would be dependent on their parents to pay the penalty for them. Some speakers have already said that it would be unfortunate to put in place penalties which catch those not directly involved or who should not or are not able to pay. That raises the prospect of juveniles having to respond to penalty notices on the basis of their parents' willingness or otherwise to pay, rather than from their own choice. We want to confront young people with choices and the issue of responsibility.

We believe that it is preferable to ensure that under 18 year-olds are confronted with the consequences of their actions through the current arrangements than possibly to confuse those arrangements by attempting to dovetail them to the new penalty scheme.

Noble Lords on the Opposition Benches have to decide whether they want to narrow or broaden the effect of fixed penalty notices. If we were to adopt the course urged upon us by the noble Baroness, Lady Buscombe, we should be unnecessarily broadening the scheme when we want it to have a proper, appropriate and better focused application to issues of disorder and yob behaviour. For all those reasons, I cannot accept the amendment.

Baroness Buscombe

I have listened with care to what the Minister said. I am disappointed with the response although not surprised by it. Much that the noble Lord said was stated in another place. However, we felt it important to air this important point again. When we met the Secretary of State last week—on behalf of these Benches perhaps I may say how grateful we were to have that opportunity—he said that it was, in his words, a close call as to whether or not these offences should impinge also upon those aged 16 and 17.

I find the argument about dependency of tinder 18 year-olds upon parents to pay the penalty a somewhat spurious red herring. Why should we not turn to parents to pay a penalty fine for those over the age of 18? Parents do not stop supporting young people as soon as they reach 18. The Government have ensured that parents have to continue to support young people over the age of 18 with regard to tuition fees and means-tested grants for university. There is no question of a cut off in any family home because an individual reaches the age of 18.

I shall not press the amendment. I continue to believe that it would have supported and assisted the youth justice system rather than disrupting it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Davies of Oldham

My Lords, I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage begin again not before 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.