Source · Select Committees · Human Rights (Joint Committee)
Recommendation 9
9
Rejected
Taking into account the proceedings as a whole, we have concerns about their compliance with...
Conclusion
Taking into account the proceedings as a whole, we have concerns about their compliance with principles of procedural fairness and Article 6 ECHR (the right to a fair trial). This is particularly the case given that respect orders would be available where anti-social behaviour, or even just the threat of it, has been proved to the civil standard of proof (i.e. on the balance of probabilities) and the court has concluded that an order is just and convenient (not ‘necessary’ or ‘proportionate’). Also, given that they are civil orders, the civil rules on hearsay evidence apply (potentially making it harder for the respect order recipient to dispute evidence against them and overcome the lesser standard of proof). Finally, the consequence 56 of receiving a respect order is particularly significant, given that breach constitutes a criminal offence punishable by imprisonment. (Conclusion, Paragraph 72)
Government Response Summary
The government rejects the concerns about Respect Order compliance with Article 6 ECHR, stating it is satisfied with existing safeguards that balance protecting rights and tackling anti-social behaviour.
Government Response
Rejected
HM Government
Rejected
The Government takes the right to a fair trial very seriously. We are, however, satisfied, on the basis of the safeguards set out below, that the Respect Order procedure is ECHR compliant and strikes the right balance between protecting the rights of victims and those accused of ASB. As indicated above, it is important to note in this context that Respect Orders are fundamentally preventative in nature and do not automatically result in criminal proceedings - if the offender ceases to engage in the ASB, there are no further sanctions. Respect Orders are court orders. While the Committee’s report notes concerns regarding the “just and convenient” test, this threshold still requires a judge, with all the relevant legal duties and safeguards that entails (including the requirement to act compatibly with the ECHR under section 6 of the Human Rights Act 1998), to be satisfied that it is necessary and proportionate to make an order. While the Committee expresses concerns regarding the civil standard of evidence and hearsay evidence being admissible, delivery partners have provided feedback on the challenges in obtaining Civil Injunctions (which use the same evidentiary standard) due to the burden of proof, with some areas adopting extensive pre- action protocols. Any party that relies on hearsay evidence will need to follow the rules set out in the Civil Evidence Act 1995 and Part 33.2 of the Civil Procedure Rules, which provides an additional safeguard in respect of the admissibility of hearsay evidence. The introduction of the risk assessment as a statutory requirement offers a further safeguard in ensuring that Respect Order applications take into account contextual vulnerabilities and take a joined-up multi-agency approach. It is also important to note that breaches of Civil Injunctions, which have the same legal test and evidentiary threshold as a Respect Order, can already result in imprisonment under the existing regime. Breach of the Civil Injunction can result in up to two years imprisonment for contempt of court, which is the same maximum custodial term as the Respect Order.