HL Deb 21 June 2002 vol 636 cc1029-32

1.54 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton)

rose to move, That the draft order laid before the House on 16th May be approved [30th Report from the Joint Committee].

The noble and learned Lord said: My Lords, as your Lordships may be aware, we introduced in the Criminal Justice and Police Act 2001 powers for the police to issue penalty notices for disorder offences. These powers are due to be piloted this summer to test their effectiveness. We introduced the powers to provide the police with a new disposal option for dealing with low-level nuisance crimes which reduces the amount of police time spent on paperwork and court time in dealing with prosecutions yet provides a punishment for the offender.

In preparation for the pilots we are laying before the House a number of orders provided for under Part 1 of the Criminal Justice and Police Act 2001. The draft amendment order for consideration today provides for the addition of a new penalty offence to those listed in Section 1(1) of the Criminal Justice and Police Act 2001. We will shortly be laying before the House a further two orders, subject to the negative resolution procedure, setting the level of penalties and the format of the penalty notice.

Part 1 of the Criminal Justice and Police Act 2001 provides for penalty notices to be issued for a number of disorder offences which are listed in Section 1(1). Section 1(2) allows the Secretary of State to amend the list of offences by order. This draft amendment order provides for the addition of the offence, under Section 5 of the Public Order Act 1986, of using threatening, abusive or insulting words or behaviour, or disorderly behaviour, or the display of any writing, sign or other visible representation which is threatening, abusive or insulting within the hearing or sight of a person likely to be caused harassment, alarm or distress.

Section 5 does not involve racially motivated behaviour, the threat of violence or the intent to cause harassment, alarm or distress, which are covered in other offences and which would not be appropriate for penalty notice disposal.

Section 5 of the Public Order Act was in the original list of penalty offences included in the Bill. Members of another place raised some objections and we agreed to drop the offence prior to the Bill completing its parliamentary procedure. However, the Government reserved the right to use the affirmative procedure to put back Section 5 if further consideration concluded that this should be done. We have had time to consider the matter in greater detail and in the light of representations made by the Association of Chief Police Officers. ACPO's view is that the penalty notice for disorder schemes would be seriously hampered by the omission of this offence. Its advice is that this offence is used operationally to deal with a very similar type of offending to that covered by Section 91 of the Criminal Justice Act 1967—disorderly behaviour while drunk in a public place. Section 91 is already a penalty offence. But while Section 91 requires the offender to be drunk, Section 5 does not. It is wider drawn and a significant number of offences currently occur under it. We believe that it would be anomalous for a person who is behaving in a disorderly manner and is drunk to receive a penalty notice but for a person behaving in a similar way who is not drunk not to be given a penalty notice.

In the interests of consistency, we have accepted police representations that Section 5 of the Public Order Act should be added to the list of penalty offences and its use tested in the forthcoming pilots. ACPO's views on the need for the inclusion of this offence have received the strong support of the five police forces which will be running the pilots. They see the penalty notice for disorder scheme as providing an additional tool for dealing with low-level nuisance behaviour on the streets in a quick and effective way. I ask your Lordships to support this amendment order. I beg to move.

Moved, That the draft order laid before the House on 16th May be approved [30th Report from the Joint Committee].— (Lord Falconer of Thoroton.)

Viscount Bridgeman

My Lords, the Minister has given a helpful summary of the background to the order. Like my honourable friend Mr Dominic Grieve in another place, I have misgivings about the incorporation of this offence into Section 5 of the Public Order Act. Misgivings were voiced not only in another place but in your Lordships' House during the passing of the Criminal Justice and Police Bill.

The fact that there is an element of subjectivity in this offence is a cause for concern, as is also the fact that as a serious offence it carries no record. Another possible objection raised in another place—that it would merely invite the offender to run off into the crowd—might be no bad thing if it stops him offending again.

However, the Minister referred to the strong recommendation that ACPO has given to the order. With these reservations, I am pleased to note that Ministers have given an undertaking that the order will be piloted for a limited period to test its utility. I would be grateful if the Minister could confirm the period of that piloting scheme, if that has been fixed. Ultimately, considerable weight must be attached to a recommendation of this kind by ACPO. It is for this reason that we support the order.

Lord Goodhart

My Lords, I rise to express the concern of these Benches about the order. As the Minister has said, the original version of the Criminal Justice and Police Bill included the offence under Section 5 of the 1986 Act as one of its penalty offences. The provision was still contained in the Bill when it reached this House, and it was strongly opposed in this House by my noble friends. I have re-read in Hansard the debate that took place on 30th April 2001, when an amendment to remove the offence under Section 5 of the Public Order Act 1986 was strongly pressed by my noble friends Lord Phillips of Sudbury and Lord Thomas of Gresford.

What eventually happened was that, in the run-up to the general election, the Government agreed to drop the offence under Section 5 of the Public Order Act from the list of penalty offences. Therefore, the Bill was enacted without that provision being included. It is a matter of some considerable concern to us that, barely 12 months later, the proposal has comes back before this House in the form of a statutory instrument.

This proposal was opposed on grounds of principle, particularly—as the noble Viscount, Lord Bridgeman, has said—because this offence carries a substantial subjective element. In particular, when the offence is one of threatening or insulting behaviour, one has to know who was threatened, who was insulted and whether the conduct was sufficient to cause a reasonable person to feel threatened or insulted. So it is not a classic penalty offence, which is simply a matter of either yes or no. One thinks of the original penalty offence; namely, a parking offence. In that case, someone is either wrongly parked or he is not. With this proposal there is a much more substantial subjective element, which makes it unsuitable for inclusion as a penalty offence.

We are concerned also about the practicality. In particular, we believe that if an officer is trying to serve a penalty notice on someone who is threatening or abusing him or someone else in the locality, it will prove a matter of some difficulty. We also have serious doubts as to whether penalty notices will be observed in terms of payment. It is our belief that this type of offence does not lend itself to the penalty notice procedure.

Obviously, this cannot be the subject of a lengthy debate or a Division on a Friday afternoon, so I shall not seek formally to object to the order. Nevertheless, I want to make it clear that, although we shall not vote against this statutory instrument on this occasion, it is one with which we disagree.

Lord Falconer of Thoroton

My Lords, I am grateful for the support given to the order by the noble Viscount, Lord Bridgeman. He raised two reservations, but I understood him to say that, in the light of police support for the order, he is minded to support it.

So far as concerns subjectivity, the noble Viscount and the noble Lord, Lord Goodhart, are right. There is a subjective element, because the offence is committed only if a person is likely to be caused harassment, alarm or distress. That will require the police officer concerned to exercise some degree of subjective judgment—as he would if the offence were dealt with in a way other than by a fixed penalty notice. He will need to go through precisely the same decision-making process. I do not believe that the fact that the matter is subjective places it out of court so far as concerns this particular section.

An important point to make is that, if the recipient of the fixed penalty notice objects and believes the officer's judgment to be wrong, he will have the right to have his case heard in court.

The noble Viscount, Lord Bridgeman, raised the question of whether this offence was too serious to be a fixed penalty offence. This is the least serious of a range of offences involving the causing of alarm, distress or harassment, and we have taken the view that it is not so serious that it cannot be dealt with by this procedure.

The noble Viscount asked specifically how long the proposal would be piloted in the four areas. The answer is that they will pilot it for a year. The noble Lord, Lord Goodhart, made it clear that, although he would not vote against the order, he objected to it. He is right to say that the issue was raised at the time the Bill completed its passage in this House. But it was made clear that we reserved the right to reintroduce such a provision by order-making power after consultation, and that is what we have done. It is consistent with what we said. We have consulted and, what is more, the proposal will be piloted.

I also draw attention to the point that I made in my opening remarks; namely, that Section 1(1) allows in the existing Bill for a fixed penalty notice to be served in respect of Section 91 of the Criminal Justice Act 1967. The view was taken that it would be anomalous not to allow it in this case as well.

The noble Lord, Lord Goodhart, raised the issues of subjectivity, seriousness, and practicality; namely, will this proposal make matters worse? That is a matter for the police to decide on an operational basis in individual cases. But as I have indicated, police representative bodies and the four areas that will pilot the proposal—those that know most about the practicalities—-believe that it should be included. In the light of those remarks, I commend the order to the House.

On Question, Motion agreed to.