As I understand it, that is the case. I was going on to argue the question of defences because that was the issue that my noble friend wanted to sort out. However, I hope that we have saved the price of a stamp by clearing that up in the Chamber.
In effect, my noble friend is seeking to argue that it is not enough to be able to establish, in the case of the injunction, that the conduct in question could reasonably be expected to cause nuisance or annoyance but that it should also be necessary to show that the conduct was unreasonable in the circumstances. My noble friend has pointed to the reasonableness defence in Section 1 of the Crime and Disorder Act 1998, which applies to the ASBO on application, although it is worth noting that no such defence is contained in Section 1C of that Act, which relates to the ASBO on conviction. I am sympathetic to the point that she raised and I hope to persuade her that it is already effectively covered.
I will deal first with the injunction. As my noble friend will be aware, the second condition that must be satisfied is that the court considers that it is “just and convenient” to grant an injunction for the purpose of preventing the respondent from engaging in anti-social behaviour. As I have already indicated, in applying this limb of the test, the court will look at whether it is reasonable and proportionate in the circumstances of the case to grant an injunction. It will be open to the respondent to argue that he or she had a good reason for his or her conduct. The court will weigh that up against the evidence submitted by the applicant and come to a view. If the court is satisfied that the reason put forward by the respondent is a sound one, I fully expect it to conclude that it will not be just and convenient to grant an injunction. Therefore, the defence is, in practice, inherent in the drafting of Clause 1 as it stands.
In the case of the criminal behaviour order, it is again important to look at the wider context in which the court will apply the test in Clause 21. The same public law principles of reasonableness and proportionality will apply. It would therefore be open to the offender to argue that there were reasonable grounds for the conduct in question, which the court would then consider alongside the evidence presented by the Crown Prosecution Service.
I might add that there is no reasonableness defence in Section 1C of the Crime and Disorder Act 1998, which provides for ASBOs on conviction—the forerunner to the criminal behaviour order. That section does, however, stipulate that the court may consider evidence
presented by the prosecution or the defence, which will be the position in relation to the criminal behaviour order, albeit that is not expressly stated in the Bill.
In addition, it is worth pointing out that, in deciding whether to apply for a criminal behaviour order, the Crown Prosecution Service would need to be satisfied that there was sufficient evidence to provide a realistic prospect of obtaining an order and that it was in the public interest to apply for an order. The prosecution would therefore consider any evidence which showed that the conduct of the respondent was reasonable in the circumstances.
In short, the point made by my noble friend is well made. I assure her that a respondent or offender will be able to raise such a defence, which will then be properly considered by the court alongside evidence submitted by the applicant for the injunction or order. In the light of this reassurance, I do not believe that these amendments are necessary and, as a result, I hope that my noble friend will be prepared to withdraw Amendment 4.