Further to my letter of 25 November, I am pleased to enclose a memorandum responding to the questions posed in your letter of 29 October.

I look forward to seeing the Committee's report on the Bill.

Memorandum by the Ministry of Justice in response to the letter from the Chairman of 15 November 2007

Q1. Why does the Bill not contain a requirement that a YRO with ISS should always be tried before custody is ordered, unless the offence is exceptionally serious, to make it more likely in practice that custody of children will only be used as a last resort?

1.  The Government strongly believes that custody for young people should only be used as a last resort. That is why we are seeking to strengthen the community sentencing framework through the YRO. We do not believe that we should restrict courts' use of the Detention and Training Order (DTO) to only those cases in which YRO with ISS has already been given. The Bill provides adequate safeguards to ensure that ISS is used as a direct alternative to custody and that therefore a custodial sentence will only be passed where it is necessary to protect the public or prevent persistent offending.

2.  There will be cases where immediate custody is warranted because the offence or series of offences is so serious. Before making a custodial sentence the courts must also take into account the restrictions on custody contained in the Criminal Justice Act 2003. This is by virtue of section 152(2) of the Criminal Justice Act 2003 which states that:

'The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence'

3.  This means that appropriate safeguards are already in place to ensure that Courts only use custody where it is a necessary and proportionate response to the offence or offending of the young person.

Q2. Will the sentencing guidelines for judge be made available in draft during the passage of the Bill?

Q3. If not, will a draft be made available to the Committee for its comment?

4.  We will be producing guidance for practitioners to ensure that the YRO is used appropriately. We will also ask the Sentencing Guidelines Council (SGC) to produce a guideline to assist courts in how to use the sentence. These guidelines cannot be produced until the Bill has received Royal Assent. The SGC will consult widely in order to inform the final guidelines and the Committee will be able to comment on the draft guidelines when they are issued.

Q4. Are there any reasons why more judicial discretion could not be provided for in the provisions concerning the consequences of breach?

5.  While the Government appreciates that sentencers wish to have freedom to decide on the appropriate action to take on breach of an YRO, it is necessary for the Government to set clear standards in order to maintain confidence in community sentences. It is essential that community sentences are subject to rigorous enforcement action when breaches occur and it is right and appropriate that we should set baselines in the Bill for dealing effectively with breaches.

6.  The Government notes the Committee's point about the risk that breach of a YRO could quickly lead to custody. We do not believe that this will be the case. In the vast majority of cases breach will lead to the statutory warning procedure we have built into the Bill. Court action will only result where the breach is sufficiently serious or there are repeated breaches in a 12 month period. If the matter does get to court in most cases we expect it to lead to a further community sanction. However, there will be some occasions where custody is needed to reinforce the seriousness of the penalty and the courts must have the power to order this where it is appropriate.

7.  The circumstances where custody becomes an option for breach of a YRO are circumscribed. Under the Bill, where a young offender wilfully and persistently breaches their YRO the court is able to impose a YRO with ISS. If the young offender is already on a YRO with ISS, imposed as an alternative to custody where the offence was imprisonable, then the courts have the power to order custody for wilful or persistent breach.

8.  Where the original offence was not imprisonable, custody is only available in the following circumstances. There must have been a wilful and persistent breach of the first YRO. The court can then impose a YRO with ISS for that persistent and wilful breach. Custody is not available at this point if the original offence was not imprisonable.

9.  The young offender then has to again wilfully and persistently breach the YRO with ISS - imposed in the first place because of his wilful and persistent breach of the first order. Only then does custody become available to the court which may make a Detention and Training Order for up to 4 months.

10.  It is essential for the integrity of the YRO that we ensure that the courts have these robust enforcement options to deal with what is specifically described as wilful and persistent breach. This is not just turning up 5 minutes late. This would only apply in the worst cases where the young offender is clearly and repeatedly not responding or engaging with their community sentence. The Youth Offending Team will have made every effort to get the young offender to respond prior to taking the case back to court.

Q5. Why is the right of children to legal representation confined in the Bill to the fostering requirement?

Q6. Are there any reasons why children should not enjoy a general right to legal representation in criminal proceedings.

11.  We believe it is right that where the court is considering removing a young person from his or her family environment into fostering or any other accommodation (as part of the fostering requirement or the Local Authority Residence Requirement) the young person should have been legally represented in court in order that both they and their family can understand the consequences of the sentence.

12.  More generally, under the Access to Justice Act 1999, legal representation is available to anyone facing criminal proceedings before any Court where it is in the Interests of Justice that public funding be granted. The Interests of Justice test is set out in Schedule 5 to the Access to Justice Act 1999. The Court must consider the following factors:

• Whether the individual would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer serious damage to his reputation;
• Whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;
• Whether the individual may be unable to understand the proceedings or to state his own case;
• Whether the proceedings may involve the tracing, interviewing or expert cross examination of witnesses on behalf of the individual, and
• Whether it is in the interests of another person that the individual be represented.

13.  Accompanying guidance, which can be found on the Legal Services Commission's website, states that the Court should give consideration to whether the defendant is of a young age and to the defendant's ability to understand the proceedings or to state his or her own case.

14.  Since 2 October 2006, defendants appearing before the magistrates' court and youth court have been required to pass an additional financial eligibility test to qualify for publicly funded representation. Defendants under the age of 16 and those under the age of 18 and in full time education have been exempt. From 1 November 2007, all defendants under the age of 18 will be passported through the means test.

15.  There are therefore a number of safeguards in place to ensure that a youth will be granted publicly funded representation where necessary. We would not want to extend the scope because:

• It would sideline the "Interests of Justice test" under the Access to Justice Act 1999. This is widely accepted to be a fair and transparent test and it is ECHR compliant; and
• It could impact significantly on legal aid funding.

Q7. Please explain why the Governement considers that clause 9 of the Bill is compatible with the obligation in Article 3 CRC to ensure that the best interests of the child shall be a primary consideration in all actions concerning children.

16.  Clause 9 provides that when dealing with an offender aged under 18 in respect of an offence the court must have regard primarily to the principal aim of the youth justice system as set out in the Crime and Disorder Act 1998, namely, the 'prevention of offending by children and young people'. When sentencing a young offender it is right that the courts should have regard primarily to the principal aim of the youth justice system. The provisions as drafted in the Bill will clarify the current law in order to remove any confusion and will bring sentencing into line with the rest of the youth justice system.

17.  Courts will also, as at present, be required to have regard to the welfare of the young person and these issues will be considered as a supporting factor. We believe it is right that welfare should not be the primary purpose of sentencing and Article 3 of the CRC does not require that it should be. It requires that the best interests of the child shall be a primary consideration. It is. That is why the welfare of the child is specifically mentioned in clause 9 as something the courts must have regard to when sentencing. A justice system exists to tackle crime. Then it must also consider the needs and interests of victims and the wider community which is why punishment must remain a purpose of sentencing. We have ensured that courts will be required to have regard to the welfare of the young person and these issues will be considered as a supporting factor. Ultimately, we believe that making the prevention of offending the statutory purpose of sentencing is not incompatible with the UN Committee on the Rights of the Child as we are satisfied that work to prevent offending will operate in the best interests of the young person.

Q8.  Please explain the reasons for the Government's view that the cap on compensation for miscarriages of justice in clause 62 of the Bill is compatible with the right in Article 5(5) ECHR to have an enforceable right to compensation in respect of arrest or detention in breach of Article 5.

18.  Clause 62 (now clause 92) amends section 133 of the Criminal Justice Act 1988. Section 133 provides a scheme for compensating those who have had their convictions reversed on the ground that "a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice".

19.  A person eligible to claim under section 133 will not necessarily have suffered an infringement of his or her Article 5 rights. The reversal of a conviction on the ground that an appellate court found it to have been based on a error of fact does not cause the detention consequent on that conviction to be retroactively unlawful for the purposes of Article 5 - see, for example, Benham v UK (1996) 22 EHRR 293 at paragraph 42.

20.  Conversely, a person whose Article 5 rights have been infringed will not necessarily be eligible for compensation under section 133. Article 5 is of much wider effect than section 133. If a person's Article 5 rights have been infringed and either he is ineligible under section 133 or that section provides inadequate compensation, he may obtain a remedy by bringing a civil action for damages under the Human Rights Act against the relevant wrongdoer.

21.  As clause 62 does not in any way limit the right to bring such a civil action, it is the Government's view that the clause raises no issue under Article 5.

22.  Article 3 of Protocol 7, and Article 14 of the International Covenant on Civil and Political Rights which is expressed in similar terms, provide for compensation for victims of miscarriages of justice. Although Article 3 of Protocol 7 has not been ratified by the UK (and is not a "convention right" for the purposes of the 1998 Act) the Government has considered whether clause 62 is compliant with these provisions.

23.  Neither Article 3 of Protocol 7 nor Article 14 prescribes the level of compensation. Both provisions envisage the compensation payable to victims of miscarriages of justice being subject to the law or practice of the State. In light of this, it must be open to the State to adopt a scheme which regulates how much compensation is payable.

24.  The cap in clause 62 has been set at a high level (£500,000). The Strasbourg caselaw on Article 3 of Protocol 7 suggests that relatively low levels of compensation may be acceptable - see, for example, Shilayev v Russia (App No 9647/02). The Government accepts that there may be some cases where the effect of the cap is that the compensation an individual receives does not wholly reflect the extent of the individual's loss. Nonetheless, capping compensation at the level proposed cannot be said to impair the essence of Article 3 of Protocol 7 or Article 14.

25.  It is therefore the Government's view that clause 62 complies with Article 3 of Protocol 7 and Article 14.

Q9. Please provide a more detailed explanation of how an individual user of pornography is able to know whether or not his or her possession of a particular image would constitute a criminal offence.

26.  The offence covers material which meets three thresholds: it must be pornographic, it must contain an extreme image and it must be real or appear to be real to the viewer, in other words it must be convincing.

27.  An image is "pornographic" if it appears to have been produced solely or principally for the purpose of sexual arousal. We believe that the individual pornography user will have no difficulty in recognising pornography.

28.  An "extreme image" is an image of:

• "(a) an act which threatens or appears to threaten a person's life." We consider that these acts, given the pornographic context, will be easily recognisable since extreme pornographic scenarios frequently contain scenes of throttling, asphyxiation, hanging or threats with a knife or other weapon.

• "(b) an act which results in or appears to result (or be likely to result) in serious injury to a person's anus, breasts or genitals." The focus of this paragraph is on the act which does or may cause serious injury. No medical knowledge is required to understand what a 'serious' injury is likely to be. 'Serious' will have its normal meaning. In the pornographic context, the infliction of injury to these parts of the body will be recognisable. The insertion of a sharp object into the vagina or anus, is an example of an act which would be caught.

• "(c) an act which involves or appears to involve sexual interference with a human corpse". We consider that this material would be easily recognisable.

• "(d) a person performing or appearing to perform an act of intercourse or oral sex with an animal." We believe that this will also be easily recognisable.

29.  The Government is aware of concerns which have been articulated during the oral evidence sessions on the Bill that the clause as drafted may not be sufficiently precise in limiting the scope of the offence to material which is extreme and explicit. We are considering how the drafting may be clarified.

Q10.  Please provide, in the light of the above, the weighty reasons required to justify prosecuting people for viewing these images privately.

30.  The focus of this offence is on the images themselves and the effect they may have on those who view them, not on any underlying criminal offence which may or may not have been committed. In the context of pornography, a convincing, consensual depiction of an activity can have the same impact on the viewer as an image of that activity actually taking place. Moreover, for the viewer, the question of consent is largely irrelevant, since they can have no reliable means of verification, unless they happen to know (or themselves to be one of) the participants. Once an image has been created, it is capable of being passed beyond those who actively consented (lawfully or not) to the activities shown, and of being circulated to a much wider audience via new technologies. For those reasons, the Government considers that a focus on the lawful consent of those who participated in the creation of the image is misguided.

31.  There is evidence that we have reason to be concerned about this material. The Ministry of Justice and Department of Health jointly published a research study on 28 September 2007 entitled "The evidence of harm to adults relating to exposure to extreme pornographic material: a rapid evidence assessment (REA)". This research found that some people who accessed extreme pornography suffered some harmful effects. These included increased risk of developing pro-rape attitudes, beliefs and behaviours, and committing sexual offences. The research also showed that men who are predisposed to aggression, or have a history of sexual and other aggression were more susceptible to the influence of extreme pornographic material. The REA found no formal research studies of the effects on those who participate in making extreme pornography but referred to evidence which supported the argument that participants in extreme pornographic material may be harmed in its making.

32.  In addition to the evidence referred to above of the harmful effects of extreme pornography there is also an argument that such material normalises and legitimises a culture of sexual violence. Proportionate interference is permitted under both Articles 8 and 10 not just for the purposes of preventing crime, protecting health and protecting the rights of others, but also for the protection of morals. Extreme pornographic material arguably has a negative impact on morals, and very little to justify it in other respects. As Baroness Hale of Richmond pointed out in the recent case of Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19 which concerned licences for sex shops, "My Lords, there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast City Centre. Pornography comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law. Far too often it entails the sexual exploitation and degradation of women for the titillation of men."

33.  The Government believes that it is justified in acting to control the circulation of this material for the reasons set out above.

Q11.  Why are registration requirements considered to be justified for the offences in clause 64(6)(a) and (b) or for any consensual activity not leading to physical harm.

34.  The answer to Q10 is also relevant. The focus of this offence is on the images themselves and the effect they may have on those who view them. For the reasons given above, our concerns about the impact of the material on the viewer remain the same, if the activities shown were convincing consensual depictions of sexual violence.

35.  No one will be subject to registration requirements unless sentenced to two years imprisonment or more. On a maximum three year sentence, this is a high threshold which is intended to target those about whom the courts have particular concerns either because of the nature and extent of their collection of extreme pornography, their frequency of offending or for some other reason.

36.  There is some evidence of harm to some people who access extreme pornography (see above) and those who are already predisposed to aggression are most at risk. In this circumstance, and in respect of only the most serious offenders, we believe that notification requirements are justified.

Q12.  Please explain why, in the Government's view, compulsory rehabilitation orders for those convicted of "street offences" (clause 72 of the Bill) will not result in a significant increase in the number of vulnerable women being imprisoned.

37.  All that the new order requires is that the offender attends three meetings. It involves no element of imprisonment.

38.  If the order is breached, the Court can only deal with the offender in the same way that it could have dealt with him/her on conviction for the offence (see paragraph 4(2) of Schedule 14 (now Schedule 21)). Breach will not, therefore, be punished with a sentence of imprisonment.

39.  Concerns have been expressed about the possibility of detention for 72 hours under paragraph 9(2) of Schedule 14. Such detention is not a penalty for loitering or soliciting, or a penalty for breaching the order; it is part of a mechanism for ensuring that offenders can be brought back before the right court to deal with a reported breach. If the supervisor reports to the court that, in his or her opinion, the offender has breached the order, the court may issue a warrant for the arrest of the offender. On arrest, the offender should be brought immediately before the appropriate court. If, and only if, this is not possible, the police will have the power to detain the offender for no more than 72 hours and must, within that time, bring the offender before the appropriate court or, if that is not reasonably practicable, an alternative court. The maximum period of detention has been set at 72 hours in order to give the police an opportunity to bring the offender before the appropriate court, even if the arrest occurs over, say, a bank holiday weekend. A similar mechanism (and the same 72-hour period) is already used on breach of other types of orders - see, for example, paragraph 4 of Schedule 1 to the Powers of Criminal Courts (Sentencing) Act 2000.

Q13. What distinguishes VOOS from indeterminate sentences for public protection, which clearly amount to punishment and to which the criminal fair trial standards therefore apply?

40.  Violent Offender Orders differ from indeterminate sentences for public protection in that they are civil preventative orders, issued after an individual's sentence has expired rather than at the point of sentencing. Violent Offender Orders are intended to protect the public from the most dangerous violent offenders who still present a risk of serious violent harm after their licence has expired and who are not subject to any other measure (e.g. community sentences) to manage that risk. They are not punitive and do not constitute a criminal sanction.

41.  There are certain scenarios in which Violent Offender Orders will be the only means of protecting the public from the most dangerous violent offenders - indeterminate sentences will not be applicable. These are as follows:

• Violent Offender Orders will be used to protect the public from individuals presenting a risk of serious violent harm that were convicted of a qualifying offence prior to April 2005 when public protection sentences were introduced;
• Violent Offender Orders will be used to protect the public from individuals whose risk level was not considered high enough to warrant a public protection sentence at the point of conviction but is now deemed to present a risk of serious violent harm; and
• Violent Offender Orders will be used to protect the public from individuals whose sentences for the qualifying offence have already expired but their behaviour has come to the attention of the police (or other MAPPA agencies) as posing a risk of serious violent harm.

Q14. Why does the Government consider it to be appropriate for civil proceedings to be used, in circumstances where an individual has been convicted of an offence?

42.  A Violent Offender Order is a civil preventative order designed to protect the public from serious violent harm, and not a punishment for an offence committed. The requirement that an individual must have committed a qualifying offence in order to be eligible for a Violent Offender Order is necessary to ensure that they only apply to the most dangerous and violent offenders. However, a Violent Offender Order is not an additional punishment for a past offence. It relates to the risk of future violent harm.

43.  Violent Offender Orders will impose certain restrictions on individuals who still pose a risk of serious violent harm after their licence has expired and who are not subject to any other measures (e.g. public protection sentences, community sentences, other civil orders) to manage that risk. A Violent Offender Order will always be made on the basis of an up to date assessment of risk and only when the court considers it necessary to protect the public from serious violent harm. The Government considers it entirely appropriate to protect the public from such individuals who pose a risk of serious violent harm.

Q15. Why does the government not consider the criminal fairness guarantees are appropriate in the light of the judgement of the House of Lords in the case of McCann?

44.  Following the decision in McCann, the criminal standard of proof is applied in an application for an Anti-Social Behaviour Order under section 1 of the Crime and Disorder Act 1998. The House of Lords did not see any conflict with this ruling and their decision that an application for an Anti-Social Behaviour Order does not involve the determination of a criminal charge for the purposes of Article 6 ECHR. Therefore, the criminal fairness guarantees set out in Article 6 do not apply to an application for an Anti-Social Behaviour Order. The Government does not think that it is appropriate for the criminal fairness guarantees to apply to a civil order such as a Violent Offender Order.

Q16. What safeguards will be put in place to ensure that an individual is not retrospectively punished for an offence committee before the coming into force of the Act?

45.  Violent Offender Orders are not imposed as an additional punishment for an offence. They are a preventative measure aimed to protect the public from the most dangerous violent offenders who still present a risk of serious violent harm after their licence has expired and who are not subject to any other measures (e.g. public protection sentences, community sentences, other civil orders) to manage that risk. A Violent Offender Order will always be made on the basis of an up to date assessment of risk and only when the court considers an Order necessary to protect the public from serious violent harm. Further, the terms of the Order must be directly linked to the risk of future harm.

46.  Breach of an order will be a criminal offence punishable by up to five years' imprisonment. An individual could breach an order by failing to meet one or more of its conditions without reasonable excuse or by failing to comply with the notification requirements without reasonable excuse, for example. Breach would be a new criminal offence and therefore not constitute retrospective punishment. We therefore do not need to introduce any additional safeguards to ensure that an individual is not retrospectively punished for an offence committed before the coming into force of the Act.

Q17. What is the government's justification for the introduction of such measures, particularly when children and vulnerable adults will be affected?

47.  Families and vulnerable adults may be affected by the closure of certain premises where significant and persistent anti-social behaviour occurs, but such orders are only to be used as a matter of last resort after other interventions have been tried or considered. This is why the police and local authority must consult all interested parties before a notice is issued.

48.  It is this disorder and the desire to protect the rights and freedoms of the community at large which may justify the use of these measures. The premises would have to have been associated with anti-social behaviour and either significant and persistent disorder or persistent serious nuisance. Before issuing a closure notice the police and local authorities, both public authorities bound to act in compliance with ECHR, would consider the needs of any vulnerable people and children as well as the wider public. The court would also weigh up such interests in its capacity as a public authority under the HRA but also in satisfying itself of the statutory test that the making of an order is necessary to prevent such disorder or nuisance.

49.  The focus of these orders is intended to be the troublesome premises rather than the individuals involved (in the context of crack house closures see Chief Constable of Merseyside Police v Harrison). Each order's duration is also strictly limited and they are thought to be more proportionate than, for example, private and social landlords pursuing possession orders against tenants. In fact, it is hoped that the closure orders might serve as the catalyst to ensure greater protection for those caught up in and around anti-social behaviour in all premises.

Q18. What safeguards does the government intend to put in place to ensure that the safety of children and vulnerable adults is not compromised?

50.  Local authorities of course remain under a duty to ensure that advice and information about homelessness and prevention of homelessness are available free of charge to everyone in their district, irrespective of their tenure.

51.  Where applicants eligible for assistance fall within a priority need group (for example, if they have dependent children or are vulnerable in some way), but are intentionally homeless, the authority must ensure they are provided with advice and assistance to help them obtain accommodation for themselves and must ensure they have accommodation available for long enough to give them a reasonable opportunity of obtaining accommodation.

52.  It is anticipated that the closure will actually help those vulnerable people who have become victims of "cuckooing", for example (where the property may have been taken over by a more dominant individual who is perpetrating the anti-social behaviour). The order will mean that the "safe haven" can be taken out of action while any vulnerable people caught up in such a property, and any children, will be offered help and support. This will in turn help them to regain control of the property on their return. This has already been the experience with crack house closures.

53.  We will provide robust guidelines for the consideration and operation of the process. The police, local authority and other agencies will be expected to show that consideration has been given to whether a closure is the most appropriate course of action, particularly in cases where children and vulnerable young people are involved. It's important to recognise that the closure will in many cases protect those children and vulnerable adults caught up in anti-social households and provide the catalyst for perpetrators to finally accept the help and support on offer to them. The welfare of children and vulnerable adults in these premises is already compromised by the significant and persistent levels of disorder and nuisance.

54.  Agencies are already under duties to safeguard and protect the welfare of children (Children's Act 2004) and this will be backed up robustly in operational guidance, as with the existing crack house closures.

55.  We are satisfied that any interference with private life will be proportionate to the significant and persistent anti-social behaviour giving rise to the order and justified in the prevention of disorder or the protection of rights and freedoms of others.

56.  The court would only be able to issue an order following the notice if it is satisfied that:

• a person has engaged in anti-social behaviour on the premises;
• the use of the premises is associated with significant and persistent disorder or persistent serious nuisance to members of the public; and
• the making of the order is necessary to prevent the occurrence of such disorder or nuisance for the period specified in the order.

57.  Any impact on enjoyment of property is limited by the temporary nature of the order. In addition, the police, local authorities and the courts will be required to act compatibly with convention rights in making orders and will take into account the likelihood of homelessness and interference with property rights. Article 1 of the first protocol to the ECHR articulates everyone's entitlement to the peaceful enjoyment of his possessions. These powers, as a matter of last resort, will target premises that are not being used peacefully and to that end may safeguard neighbours' peaceful enjoyment of their own premises.

Q19. Why are these measures considered necessary, given the range of other measures available to deal with anti- social behaviour?

58.  This legislation has been brought forward following strong support from a range of partner agencies across England and Wales. 86% of those who responded to consultation agreed that it would be a useful new tool to tackle anti-social behaviour. This included responses from the Police Federation of England and Wales, the Local Government Association, ACPO Youth Issues Group and the National Housing Federation, as well as individual police forces and local authorities. These measures will be available to local authorities, as well as the police, in recognition of their neighbourhood management and community safety responsibilities. This follows the precedent already set in the application for and use of ASBOs and injunctions.

59.  This tool is based on the existing crack house closure power and the wider application of the closure power which is already operating successfully in Scotland. This will be a last resort tool and pursued after other interventions have been used or considered and rejected for good reason.

60.  However, where other interventions have failed to make an impact and the premises continues to be used as a centre for continued and significant anti-social behaviour, practitioners believe that this new power will provide the means through which to close it and ensure some respite for the suffering neighbours and wider community.

61.  The cost for agencies responding to reports of anti-social behaviour is estimated at around £3.4 billion a year but this does not take in to account the emotional and social impact of anti-social behaviour.

62.  96% of those suffering from noisy neighbours report a range of emotional reactions including annoyance, frustration, anger and worry but some report more serious emotional reactions and a third (32%) point to more serious emotional impacts such as: shock, fear, stress, depression, anxiety or panic attacks and crying. Over a quarter even considered moving away from the area.

Q20. Please explain the necessity for the new offence, identifying the gap in the current scope of the criminal law.

63.  There is existing legislation that deals with incidents of anti-social behaviour but it is inadequate to deal with many of the low level nuisance and disturbance behaviour that occurs on hospitals premises. For example the police or another relevant authority may apply for an Anti-Social Behaviour Order (ASBO) under section 1 of the Crime and Disorder Act 1998 in circumstances where a person has acted in "a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not in the same household as himself" and where such an Order is necessary to protect persons from further anti-social acts by him. Whilst disruptive behaviour on hospital premises may form a sufficient basis for the making of an ASBO by a court, this legislation is not sufficient to deal with an incident as it occurs. It is only once there is a relevant ASBO in place that a person who is on NHS premises and is behaving in such a manner as to breach the ASBO can commit an offence.

64.  There are a number of offences relating to drunkenness and public order already on the statute book, the most relevant of which for the purposes of tackling low level nuisance and disturbance behaviour on hospital premises would seem to be the offence under section 5 of the Public Order Act 1986. Under that section, it is an offence to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, within the hearing or sight of a person likely to be caused harassment, alarm or distress by that behaviour. However, this offence and other such offences require a police response to arrest and thus remove a person who has committed the offence.

65.  Consultation responses stated that police are often unable to respond when needed or will not respond unless the incident becomes violent. When a low level nuisance or disturbance then occurs, which might fall within the definition of an existing public order offence, unless and until the police arrive, hospitals and their staff are unable to take any action against the offender in relation to the offence committed. The offender can remain on site creating an atmosphere which makes the occurrence of a more serious incident more likely, putting patients and staff at risk. This gives the misleading impression that the NHS tolerates such bad behaviour.

66.  A case from a health body illustrates this:

"A Local Security Management Specialist within a health body told how he and his security staff often felt like 'toothless tigers' when waiting for the police to attend and remove nuisance individuals: The police are under constant pressure to deal with serious incidents. When we request assistance in the removal of individuals for this type of behaviour, more often than not the police give this a low priority and we can end up babysitting these individuals for hours before we are able to remove them with police assistance".

67.  NHS bodies can resort to the use of the civil law to obtain injunctions against individuals compelling them to do or refrain from doing acts where otherwise the NHS body would suffer or continue to suffer wrongful injury for which an award of damages would not adequately compensate the NHS body. However, this can often be time-consuming, slow and costly and is more appropriate to deal with persistent offenders rather than to deal with an incident as it occurs.

68.  There is no existing offence dealing with nuisance or disturbance behaviour, with an attendant power of removal exercisable on the commission of the offence conferred on persons other than police officers. There is a need for both the offence, and a power of removal by an authorised NHS staff member where a person has committed or is committing the offence. It will meet the dual objectives of ensuring that persons who cause a nuisance or disturbance on NHS premises to NHS staff and refuse to leave when asked to do so by NHS staff members can be prosecuted for that specific offence (and other would-be offenders can be deterred from committing the specific offence) and NHS staff can be empowered to take immediate action against offenders by exercising the power of removal.

69.  The 2006 public consultation 'Tackling nuisance or disturbance behaviour on NHS healthcare premises' was designed to obtain a broad picture of the nature, scale and extent of this type of behaviour in NHS organisations. More than three quarters (78%) of respondents to the consultation agreed that a new offence was needed to improve the situation of nuisance behaviour in hospitals and give NHS staff the power to take action immediately and prosecute offenders for this specific offence. This in turn will send a clear deterrent message to those that have no regard for NHS services and staff.

Q21. Please explain why the Government has chosen to adopt a criminal sanction to deal with the suggested problem.

70.  The 2006 public consultation 'Tackling nuisance or disturbance behaviour on NHS healthcare premises' was designed to obtain a broad picture of the nature, scale and extent of this type of behaviour in NHS organisations. The majority of NHS bodies who responded to the consultation felt that existing law was inadequate to deal with the problem of low level nuisance behaviour on hospital premises. Based on their own experiences, they felt powerless to deal with such behaviour as it happened and felt the police were often unable to respond to incidents unless they escalated to violence.

71.  A criminal sanction is considered necessary to deal with the problem of nuisance and disturbance behaviour on NHS premises in order that offenders who prevent NHS staff from delivering healthcare can be prosecuted and deterred from engaging in such behaviour in the future. This, in turn, will deter other would-be offenders from engaging in such behaviour. The creation of the new offence in combination with the attendant power of removal conferred on authorised NHS staff will enable incidents of nuisance or disturbance behaviour to be dealt with more quickly and thus have a positive impact on the delivery of healthcare. It will help to create an environment which is safe for staff to work in and for patients to be treated in, help to prevent such behaviour escalating to violence against NHS staff and relieve pressure on police resources.

72.  This low level behaviour may not be seen to be as immediately damaging as more serious incidents of violence, but the impact in terms of sickness, low staff morale and recruitment and retention is significant. Dealing with these incidents diverts NHS staff away from providing care and there is also the potential for these incidents to escalate into more serious situations such as assaults on staff. As a result it is considered that the adoption of a criminal sanction to deal with such behaviour is a proportionate response to a specific and serious problem (subject to the safeguards detailed in the responses to the following two questions).

Q22. How is such a measure proportionate to the need to ensure that all members of the public have equal access to basic medical treatment?

73.  Important safeguards are built in to clauses 104-106 (now clauses 146-148) to ensure that all members of the public have equal access to medical treatment.

74.  A person will not commit the offence (and thus the power of removal will not be available) if he or she is on NHS premises for the purpose of obtaining medical advice, care or treatment or is otherwise there in accordance with medical advice.

75.  Even if a person had not entered onto hospital premises with the purpose of seeking medical advice or obtaining treatment and had committed the offence, an authorised officer will not be able to authorise his or her removal if he or she has reason to believe that the person may need medical treatment, care or advice or removal would endanger his or her physical or mental health. In addition, the guidance which NHS bodies and the authorised officer will be under a duty to have regard to will provide that the authorised officer himself or herself should be a medical practitioner and will provide guidance on the matters to be taken into account when deciding whether there is reason to believe that a person may need medical treatment or advice or that removal may endanger a person's physical or mental health. It will also consider situations when further input from other medical practitioners may be needed, to ensure that this safeguard is robust. Other safeguards relating to the training of authorised officers and procedures to be in place with regard to the exercise of the power of removal will also be outlined in the guidance.

76.  It should also be noted that a person will only commit the offence if he or she causes the nuisance or disturbance to an NHS staff member on hospital premises without reasonable excuse and refuses to leave when asked to do so by a police constable or NHS staff member without reasonable excuse. If a person causes a nuisance or disturbance due to a mental health condition or another condition which affects behaviour, then this would constitute a reasonable excuse for the behaviour and the person would not commit the offence even if they were not on the premises for the purpose of obtaining medical advice, treatment or care. Examples of what may constitute a reasonable excuse for behaviour or a refusal to leave when asked to do so will be set out in the guidance under clause 106 (now clause 148) after consultation with mental health groups and other similar stakeholders.

77.  The offence is aimed at dealing with nuisance or disturbance behaviour on NHS premises caused by persons who accompany patients to hospital or who are otherwise on NHS premises for non-medical reasons. It will not apply to those seeking medical treatment or care or to those who need medical treatment or care. It is therefore a proportionate and targeted response to a specific problem.

Q23. What steps does the Government propose to take to ensure that it complies with its positive obligations to protect life and prevent ill-treatment?

78.  Our overriding concern is the provision of high quality healthcare. If a patient is in need of medical care, treatment or advice, it is vital they receive that care. These measures are aimed at low-level nuisance and disturbance behaviour displayed by those not seeking, or in need of, medical treatment or care. It would not be appropriate to deny a person treatment because they have engaged in nuisance or disturbance behaviour on NHS premises and, as outlined in the answer to question 22, the offence will not apply to persons on NHS premises for the purpose of obtaining medical treatment, advice or care, and the power of removal will not be exercisable where the authorised officer reasonably suspects that the person requires medical treatment, advice or care or removal would endanger the person's physical or mental health. The fact that the provisions will not apply to people seeking treatment and the powers of removal will not be exercisable in relation to persons in need of treatment are important safeguards, particularly for vulnerable groups such as those with mental health or learning disabilities.

79.  In addition, as outlined previously, if a person has mental health problems, or a learning disability, or another condition which has caused the nuisance or disturbance behaviour in question, they will not have committed an offence. It is explicitly stated in the legislation that a person will only commit the offence if they do not have a reasonable excuse for their behaviour. This means that if a person's behaviour is attributed to a physical or mental health condition then they will not be able to commit the offence.

80.  Guidance to be issued under clause 106 (now clause 148) will emphasise the need to be objective in assessing whether a person may be committing or have committed an offence and whether the power of removal can be exercised. It will detail attributes and unusual behaviour that could be characteristic of mental health conditions, learning difficulties and autistic spectrum disorders in order to safeguard potential patients. Guidance will also recommend that the authorised officer, who is responsible for assessing whether a person has committed the offence and authorising subsequent removal (including whether the person requires medical advice, treatment or care and whether removal would endanger the person's physical or mental health) will be a clinician themselves and therefore be best placed to make the initial assessment of a person's behaviour and seek further medical advice if necessary. The Guidance will be developed in full consultation with organisations representing those with physical and mental health conditions.

81.  Removal by reasonable force will be a last resort should the person committing the offence refuse to leave the premises after non-physical methods have been exhausted. Guidance will recommend that should force need to be used, it will be at the minimum level appropriate to the situation, not excessive and carried out by NHS staff members who have received proper training in methods of how to remove a person by force without causing physical harm. This training will minimise any risk involved in removal by force both to the person being removed and the NHS staff carrying out the removal.

Q24. Please clarify whether the Secretary of State's designation of a person under clause 115 of the Bill would be unlawful if in the opinion of a court the effect of designation would breach the UK's obligations under the Refugee Convention?

82.  Yes. Designation under Part 11 (now Part 12) would have to have regard to any ruling by a court that the person in question was a refugee under the terms of the Convention

Q25. In the Government's view would the courts be bound by the statutory construction of articles 1F and 33(2) of the Refugee Convention when deciding whether the effect of designation would breach the UK's obligations under the Refugee Convention?

83.  Section 54 of the Immigration Nationality and Asylum Act 2006 makes it clear that in the construction and application of Article 1F(c) of the Refugee Convention, the reference to acts "contrary to the purposes and principles of the United Nations" shall be taken as including acts of committing, preparing or instigating terrorism, and acts of encouraging or inducing others to commit, prepare or instigate terrorism. This construction would apply equally in any court proceedings.

84.  The statutory construction of Article 33(2) is not relevant to this point. Article 33 of the Convention prohibits the refoulement of a refugee to the frontiers of a country where his life or freedom would be threatened, subject to certain exceptions which are set out in Article 33(2). Article 33(2) is therefore only be relevant if we are seeking to remove someone from the UK, and, as clause 115(2)(b) makes clear, the designation power is intended to apply only to people who cannot be removed.