My Lords, I thank my noble friend Lady Hamwee for her explanation of these amendments and for sharing her thoughts about a group yet to come. It gave those of us on the Front Bench advance notice of what she might be saying, so I thank her profusely for that.
Amendment 22E seeks to require a court to consider the proportionality, as my noble friend said, of positive requirements for including them in a criminal behaviour order. Positive requirements are of course an important element of both the criminal behaviour order and the injunction to prevent nuisance and annoyance. As currently drafted, the Bill states that the court must receive evidence about the suitability and enforceability from the person or organisation that will be supervising compliance with the requirement. Proportionality will therefore routinely be considered by a court as part of this decision.
The Bill sets out clear limitations on courts when determining whether to agree any positive requirement proposed in the application. The court must not impose any requirement that conflicts with, for example, an individual’s religious beliefs, or interferes with their work or education. Ultimately the court will have regard to an individual’s human rights—for example, Article 8 rights—when deciding to include positive elements. Such qualified rights can only be infringed where to do so is necessary and proportionate in pursuit of a legitimate aim. Proportionality, therefore, is a relevant legal consideration for the courts.
Amendment 22G, which the noble Lord, Lord Rosser, focused on as well, would remove the ability of the court to grant a criminal behaviour order that lasted longer than five years. Of course, I understand the reasoning behind this. However, where the courts are dealing with the most anti-social individuals, they should have the option of imposing an order for a longer period. The courts, as I am sure all noble Lords will agree, will always consider the reasonableness and proportionality of a longer order before granting it. They will have access to relevant information about a particular case. We believe they are best placed to
make a judgment about the appropriate length of an order. What is more, the offender has the ability under Clause 26 to apply to the court to vary or discharge the order at any time.
The noble Lord, Lord Rosser, sought clarification about the words “further order”. This refers to a further order of the court, not a further CBO.
Finally, I understand that Amendments 22H, 22J and 22K are designed to ensure that all orders are reviewed annually. As your Lordships are aware, we have ensured that this is the case for under-18s. We recognise the importance of frequent monitoring as a young person matures during the duration of an order. However, in respect of adults we have left the decision open to the relevant police force as to whether there should be such a review. In such cases where an individual is behaving in a way that is seriously anti-social, it may not be appropriate to review the case after 12 months, as this would be too soon and would simply result in an unnecessary burden on the police and courts. Again, we wish to make sure that such decisions are made by those on the front line who are best placed to assess each individual case.
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I agree that this must not be a case of making an order and then forgetting about the respondent. We would expect the applicant to monitor it over time to ensure it is still valid. The CPS is able to review the order at any time and, if circumstances change, apply to the court to vary or discharge it. As we have already debated today, positive requirements that aim to address the underlying causes of anti-social behaviour are central to both the criminal behaviour order and the injunction to prevent nuisance and annoyance.
This is one of those areas where we should rely on the good judgment of the police to decide when a review is appropriate without including prescriptive requirements in the Bill. That said, as your Lordships are aware, we have published draft guidance for practitioners on the use of these powers and, having heard the debate today, we will again look at this and identify whether we can do more to promote good practice on this issue.
I turn to the modest, but always welcome, attempt by my noble friend Lord Greaves to help us along the way in some of the drafting of the Bill; when he speaks on issues of local government, it is with a great deal of experience and expertise. I assure my noble friend that he has raised yet again a very helpful and technical point on the definition of a “local government area” in Clause 28. We will of course return to this on Report, reflecting on his comments.