Anti-social Behaviour, Crime and Policing Bill

Lord Thomas of Gresford Excerpts

Wednesday 8th January 2014 Lords Chamber

[Lord Faulks]

The greater test will always include the lesser, but areas that may or may not be considered by a court to get over that hurdle may be profoundly distressing in the non-technical sense to the individual but may not be regarded as sufficiently distressing to come within the definition. There is inevitably a degree of vagueness about any definition, whether you choose the one that the Government choose or the one proposed in the amendment. But I fear that the test is too low.

[Lord Thomas of Gresford (LD)]

Could my noble friend deal with a major objection? An order can be obtained on hearsay evidence, so the judge does not have to hear from somebody who says, “I’ve been distressed or annoyed”; it would be sufficient for someone to say, “I’ve heard someone else describe himself as annoyed because of the behaviour in question”.

[Lord Faulks]

The question of hearsay evidence is important, and I am glad that my noble friend raised it. One difficulty about the orders is that individuals are often terrified of those who are responsible for the anti-social behaviour. They are terrified of being identified as the source of the complaint. If they have to give evidence, they will not want to do so. They therefore provide their perfectly bona fide complaint to an agency. Hard-pressed agencies will have to assess whether this is de minimis or of sufficient gravity before deciding whether to proceed.

[Lord Thomas of Gresford]

Is my noble friend saying that the procedure can be based on an anonymous complaint?

[Lord Faulks]

It can be on the basis of an anonymous complaint, though a judge will need to be satisfied of its substantiality. There are individuals who simply would not seek an injunction if they thought that they could be clearly identified as the source of the procedure. Of course, judges are used to weighing up hearsay evidence, which has less weight than direct evidence. A judge is unlikely to make an order if they think that it is double-hearsay or comes from an unreliable source.

Before making an order, a judge also has to decide that it is proportionate and necessary, in accordance with the Human Rights Act. As I submitted, it is no light thing for the agencies to assemble the evidence necessary to satisfy a judge. The Law Society has carefully considered the arguments against Clause 1. Although more than happy to criticise government legislation—and even this Bill, in some respects—it remains absolutely firm in its support of the existence of the power described in Clause 1, fearing otherwise that the hurdle would be too high and that the power to prevent anti-social behaviour would be damaged.