My Lords, Amendments, 4, 5, 24 and 25 are all directed at a defence for an application for an IPNA or for a criminal behaviour order. My amendments are different from definitions of the first condition which is the requirement for an injunction or an order.
There must be cases where the conduct can be expected—or maybe we will end up with “reasonably be expected”—to cause the impacts that we have been debating. Nevertheless, there is good reason for that conduct. It is not clear to me if, as drafted, there is any defence other than “I didn’t do it” or that the conduct does not meet the test.
In the Crime and Disorder Act 1998, Section 1(5) includes a provision similar to the one which I have set out in two of these amendments—that:
“For the purpose of determining whether the condition”,
of the test,
“is fulfilled, the court shall disregard any act … which … was reasonable in the circumstances”.
In case that point is not clear enough, I have specifically used the term “defence” in my more homemade Amendments 5 and 25.
There must be an opportunity for the respondent or defendant to explain himself, and I would not be happy to leave whether or not to proceed to the discretion of the applicant or prosecuting authority, whichever we are talking about. At the previous stage, the Minister said that he would take away the first of each pair of these amendments to explore whether it was appropriate to introduce an explicit reference to reasonableness. I appreciate that he went three-quarters of the way to doing so this afternoon. I know that he gave no commitment at that stage, but in any event I do not believe that his amendment, had he pursued it, would have met the point of a defence. Conduct which could reasonably be expected to cause nuisance or annoyance might still be conduct for which, in particular circumstances, there is good reason. The court should actively have to consider this.
The point is made more important by the fact that it is likely in this area that there will be a lot of litigants in person, so the legislation itself needs to be extremely clear.