My Lords, these amendments move us on to Part 2 and another series of issues, with us now considering the criminal behaviour order. I will deal with Amendments 22C and 22D first, but on Amendment 22B the Government expect that the courts will follow the reasoning in the McCann case and apply the criminal standard of proof—that is, beyond reasonable doubt—to the first condition of the test for the criminal behaviour order. We acknowledge that the criminal standard is apt in this case because of the serious consequences that flow from a breach of the order, namely a criminal conviction attracting a maximum sentence of five years’ imprisonment.
For that reason, we did not consider it necessary to specify the standard of proof for the order in the Bill. The clear ruling of the House of Lords applies equally here as it does to ASBOs under Section 1C of the Crime and Disorder Act 1998. Clause 1 specifies the standard of proof for the new injunction because, in that case, we are applying a new civil standard. That is not the case here. The approach we have taken in Clause 21 is exactly the same as that taken in the provisions in Part 9 of the Bill which provide for the new sexual harm prevention orders and sexual risk orders, which we have of course already debated. However, I am very happy to confirm that the criminal standard of proof will apply in this instance, a point that is already made in the Explanatory Notes.
Amendment 22D seeks to add a test of reasonableness to the first limb of the test for issuing a criminal behaviour order. As my noble friend has explained, this amendment imports Section 1(5) of the Crime and Disorder Act 1998 and it has the same purpose as Amendment 20H, which we have already debated in the context of Clause 1. As I said when we debated that amendment, we expect that the courts will consider, as a matter of course, whether it is reasonable on the facts to make an order. However, we will consider the matter further so that we have done everything necessary to ensure that this is the case.
Finally, Amendment 22C would introduce a test of necessity for the order. I am afraid that I cannot be so conciliatory on this amendment. The explicit additional inclusion of a necessity test could in practice raise the evidential burden on the prosecution, since the requirement may be interpreted in a way that the order cannot be granted unless the court is absolutely sure it will reduce anti-social behaviour. That is not an appropriate test, since whether this is the case will not always be clear and the court should be able to take action where it considers that the order “will help” with the prevention of such behaviour. In all, I fear that this amendment could unnecessarily complicate the application process and delay the bringing of respite to victims. The Government want to make it easier to help victims. This amendment would prevent that. That is why I do not agree with it.
The noble Lord, Lord Rosser, asked a number of questions. We believe it would be possible to apply for a CBO after sentencing. We will consider this further in advance of Report and meanwhile I may well write to him with our thinking on the matter, and indeed meet him if necessary to discuss it further.
Having secured an undertaking to consider one of the three amendments in this group, my noble friend will be at least partially satisfied, I hope, and will agree to withdraw the amendment.