States Meeting Transcript - 18/06/2008

STATES OF JERSEY

OFFICIAL REPORT

WEDNESDAY, 18th JUNE 2008

PUBLIC BUSINESS – resumption ...............................................................5

1. Draft Crime (Disorderly Conduct and Harassment) (Jersey) Law 200- (P.55/2008) ...5

1. Deputy C.H. Egré of St. Peter:...........................................................5
2. Deputy J.A.N. Le Fondré of St. Lawrence : ..............................................5
3. Deputy G.C.L. Baudains of St. Clement : ................................................6
4. Deputy G.W.J. de Faye of St. Helier:....................................................6
5. Deputy J.G. Reed of St. Ouen:...........................................................6
6. Deputy D.W. Mezbourian of St. Lawrence : ..............................................7
7. Connétable K.P. Vibert of St. Ouen:.....................................................7
8. Connétable D.J. Murphy of Grouville :...................................................7
9. Deputy A.D. Lewis of St. John : ..........................................................8
10. The Very Reverend R.F. Key, B.A., The Dean of Jersey:................................9
11. Deputy I.J. Gorst of St. Clement:........................................................9
12. Connétable T.J. du Feu of St. Peter:....................................................10
13. Deputy K.C. Lewis of St. Saviour:......................................................10
14. Senator W. Kinnard:....................................................................10 Mr. W.J. Bailhache Q.C., H.M. Attorney General:............................................14 The Bailiff :...................................................................................15 Deputy D.W. Mezbourian (Chairman, Education and Home Affairs Scrutiny Panel): ........16
15. Senator W. Kinnard:....................................................................16

1.15.1 Deputy F.J. Hill of St. Martin:.......................................................16 The Bailiff :...................................................................................17

16. Senator W. Kinnard:....................................................................17

1. Deputy J.A.N. Le Fondré: ...........................................................17
2. Deputy G.C.L. Baudains: ............................................................19
3. Deputy P.V.F. Le Claire:............................................................20 The Attorney General:........................................................................20

4. Connétable G.W. Fisher of St. Lawrence:............................................22 The Attorney General:........................................................................23
5. Deputy I.J. Gorst :....................................................................24
6. Deputy J.A. Martin: .................................................................24
7. Deputy C.J. Scott Warr en of St. Saviour:............................................25
8. Deputy R.C. Duhamel of St. Saviour:................................................25
9. Deputy R.G. Le Hérissier:...........................................................25
10. Senator M.E. Vibert :...............................................................26
11. The Deputy of St. Martin:..........................................................26
12. The Dean of Jersey:................................................................27
13. Deputy J.J. Huet of St. Helier : .....................................................27
14. Deputy D.W. Mezbourian :.........................................................28 The Attorney General:........................................................................28

15. Deputy J.B. Fox of St. Helier:......................................................28
16. Senator W. Kinnard:...............................................................29 The Bailiff :...................................................................................32
    17. Senator W. Kinnard:....................................................................32

1. Deputy G.C.L. Baudains: ............................................................33
2. The Connétable of St. Ouen : ........................................................33
3. The Deputy of St. Martin : ...........................................................33
4. Senator W. Kinnard:.................................................................33 The Attorney General:........................................................................34 The Bailiff :...................................................................................34 The Bailiff :...................................................................................35

18. Senator W. Kinnard:....................................................................35

1. Deputy P.V.F. Le Claire:............................................................35
2. Deputy P.N. Troy ofSt.Brelade:....................................................36
3. The Deputy of St. Martin : ...........................................................36
4. Deputy G.W.J. de Faye: .............................................................36
5. Senator W. Kinnard:.................................................................36 The Bailiff :...................................................................................37

2. Central European Time: referendum (P.62/2008)......................................37

2.1 Senator J.L. Perchard:..................................................................37

1. Senator L. Norman: ....................................................................38
2. The Connétable of St. Ouen:............................................................39
3. Senator F.H. Walker :...................................................................39
4. Deputy P.V.F. Le Claire: ...............................................................40
5. The Deputy of St. Mary:................................................................40
6. Deputy J.A.N. Le Fondré:..............................................................41

LUNCHEON ADJOURNMENT PROPOSED..................................................42 The Bailiff :...................................................................................42

LUNCHEON ADJOURNMENT................................................................42 PUBLIC BUSINESS (continued)................................................................42

Deputy R.G. Le Hérissier:....................................................................42 The Bailiff :...................................................................................42 The Connétable of St. Ouen:..................................................................42 Senator M.E. Vibert :..........................................................................42

7. Deputy G.W.J. de Faye:................................................................43
8. Deputy J.A. Martin:....................................................................45 The Connétable of St. Ouen:..................................................................45

9. The Deputy of St. John:................................................................46
10. Deputy K.C. Lewis : .................................................................47
11. Deputy C.J. Scott Warr en:...........................................................47
12. Deputy J.B. Fox:....................................................................47
13. Senator M.E. Vibert :................................................................48
14. Deputy G.C.L. Baudains: ............................................................48
15. Deputy R.C. Duhamel:..............................................................49
16. Deputy S. Power of St. Brelade:.....................................................49
17. Connétable J.L.S. Gallichan of Trinity : ..............................................50
18. Senator S. Syvret:....................................................................50
19. Deputy P.N. Troy :...................................................................51
    20. Senator P.F.C. Ozouf : ...............................................................52

21. The Deputy of St. Martin : ...........................................................52
22. Senator J.L. Perchard: ...............................................................53 The Bailiff :...................................................................................55

ARRANGEMENT OF PUBLIC BUSINESS FOR FUTURE MEETINGS ....................55

3. Connétable D.F. Gray ofSt. Clement (Chairman, Privileges and Procedures Committee): .........................................................................................55

1. Deputy J.A.N. Le Fondré:..............................................................56
2. Deputy C.F. Labey of Grouville :........................................................56
3. Deputy P.N. Troy : ......................................................................56 The Bailiff :...................................................................................57
4. Deputy S.C. Ferguson:..................................................................57
5. Deputy P.J.D. Ryan of St. Helier : ......................................................57
6. Deputy C.J. Scott Warr en: ..............................................................57
7. The Deputy of St. Mary:................................................................58
8. Senator F.H. Walker :...................................................................58
9. Deputy G.W.J. de Faye:................................................................58
10. Deputy G.C.L. Baudains:...............................................................58
11. Senator S. Syvret:......................................................................59
12. The Deputy of St. John:................................................................59
13. Deputy J.A. Martin:....................................................................59
14. Deputy D.W. Mezbourian :..............................................................59
15. Deputy P.J.D. Ryan:....................................................................60 The Bailiff :...................................................................................60
16. Deputy G.W.J. de Faye:................................................................60
17. The Deputy of Grouville :...............................................................60
18. Deputy P.N. Troy : ......................................................................61
19. Senator P.F.C. Ozouf :..................................................................61
20. Deputy C.J. Scott Warr en: ..............................................................61 The Bailiff :...................................................................................61 The Bailiff :...................................................................................62
21. Senator F.H. Walker :...................................................................62
22. Deputy R.G. Le Hérissier: ..............................................................62
23. Deputy P.N. Troy : ......................................................................62
24. Deputy S.Power:.......................................................................62
25. Deputy G.W.J. de Faye:................................................................62
26. Deputy R.C. Duhamel: .................................................................63 The Bailiff :...................................................................................63 The Bailiff :...................................................................................64
27. The Connétable of St. Clement:........................................................64
28. Deputy G.W.J. de Faye:................................................................64

29. The Deputy of St. John:................................................................64
30. The Deputy of St. Martin:..............................................................64
31. Senator P.F.C. Ozouf :..................................................................64
32. Senator S. Syvret:......................................................................65
33. Deputy I.J. Gorst : ......................................................................65
34. Deputy R.C. Duhamel: .................................................................65
35. Deputy S.C. Ferguson:..................................................................66
36. Senator P.F.C. Ozouf :..................................................................66 The Bailiff :...................................................................................66

ADJOURNMENT................................................................................66

The Roll was called and the Dean led the Assembly in Prayer.

PUBLIC BUSINESS – resumption

1. Draft Crime (Disorderly Conduct and Harassment) (Jersey) Law 200- (P.55/2008)

The Bailiff :

Now, we come back to Public Business and the debate continues on the principles of the Draft Crime (Disorderly Conduct and Harassment) (Jersey) Law 200-.

1. Deputy C.H. Egré of St. Peter :

I rise, wishing to support this proposition however I do have serious reservations. This increases the power to the States of Jersey Police and the Honorary Police in a very serious and considerable fashion. One of the concerns that I have is the accountability of the police to the public. We do not have a Police Authority as yet and I would have hoped that those foundations would have been put in place prior to further powers being given to our police. We do not have a proper functioning independent Police Complaints Authority in my view. I have got 3 cases of the parishioners at the moment that are, I would suggest, not being dealt with as I would have hoped as far as police complaints are concerned. I do not wish to go into any great detail other than to say I do feel that there needs to be a serious review in that direction. Historically, Sir, in the days of the committee structure, we did have a function as almost a pseudo police authority where the police were directly accountable to the Committee and therefore were directly accountable to at least 5, if not more, minds. We are not in that position at the moment. I do feel there could be possible abuse of the facility that we are putting in place and without that level of accountability I do feel it difficult to support the proposition.

2. Deputy J.A.N. Le Fondré of St. Lawrence :

I am not sure if now is the right moment or if not later can I ask the Minister when we get to the articles that we propose the articles separately.

The Bailiff :

You want the articles taken separately? Well, that would be the usual thing certainly.

Senator W. Kinnard:

In terms of presenting them I am happy to take the articles separately to present them, yes, but I think we vote on the whole proposition.

The Bailiff :

We are debating the principles at the moment.

Deputy J.A.N. Le Fondré:

I appreciate that. I was going to presume that any specific comments on particular articles would be dealt with at the point when we vote on the articles and on that basis I will stick to very general comments. Obviously the early version of this law was considered by the Assembly over a year ago, after which the proposition was withdrawn by the Minister. I have to say, speaking personally, I think it is fair to say in the last few days Members have sharply focused their minds on the importance of the exact drafting of legislation, particularly in dealing with these sorts of areas. I do support the general thrust of the law, but have quite specific concerns at Article 2, and I am not too sure whether I would support that particular article yet. But I think I will deal with those when we get to Article 2, Sir. I do welcome the changes the Minister has made. I am concerned that the rewrite has not necessarily gone far enough, and is not clear enough,and I will look forward to her explanations when we get to that point. I do continue to support the law in respect of harassment and I will be supporting the principles on that basis. I would like to ask, while I am standing, Sir, what I hope is an extreme point of clarification from the Attorney General. It is something I emphasise it is not something that crossed my mind, but it was put to me. I do not think it is a valid interpretation of the law, but I would like also the Attorney General to confirm that fact. Also if I can, I would appreciate it is a detailed question, but it is to give him some notice of the query which I have put to many Members as well; under Article 2 I am assuming that in no way can Article 2 be interpreted that the use of words within the sight of someone cannot refer in any shape or form to written representation and I would appreciate if he could consider that and come back to us in due course. I would say that my understanding, having looked up in the, obviously, English dictionary of the word "use" under Older English, it can refer to "to write" and obviously "use" is not defined anywhere else in the law. I would welcome his comments. Hopefully he is going to it as an extreme interpretation and that it is not a valid interpretation and I would like him to confirm that for me.

3. Deputy G.C.L. Baudains of St. Clement :

I will be very brief. Generally speaking, I believe this is to be welcomed. I do however have one or 2 concerns as I think Deputy Martin outlined yesterday afternoon, and I am not absolutely sure at the moment whether I will be supporting this. My concern, as usual, is not what good a law can do, but the potential for it being misused and there are areas in here where I think I am particularly concerned about the interpretation of dwelling and such things. I always believed that a man's home was his castle. It appears that it is not any more, but on the other hand of course that is balanced by we do not want not to be able to address the issue of domestic violence and things like that. I am just slightly concerned that somebody who gets overly enthusiastic about this we could end up finding victims being charged under this law as opposed to those who really should be, Sir.

4. Deputy G.W.J. de Faye of St. Helier :

I was most interested when the Minister put forward this proposition to hear a number of hypothetical examples that referred to the various changes that the proposed legislation aims to tackle. It rather took me back to my university law tutorials where similar hypothetical cases would be put up for discussion and of the 2 persons concerned, which one was breaking the law and so on and so forth. What is interesting though about hypothetical cases is that one can only just slightly change the margins and a very different thrust is put on the actual proceedings taking place. The Minister, for example, I think when she was looking at a possible harassment incident of someone following a lady down the road, put in the qualification: "and the lady burst into tears." These are all the little changes that can take place to, in a qualitative sense, adjust a particular hypothetical case and consequently may adjust the minds subsequently of a jury or the magistrate if such an event becomes a course of criminal prosecution. I for one, and I hope most Members, have clearly understood the difficulties of the abilities of the police to prosecute certain cases under the existing law. The drunk and disorderly incidence is one in point where, as I understand it from the Minister, disorderly behaviour may be taking place, but if it is not linked with drunkenness the authorities are effectively powerless. I do though want to draw from that one single, I think, and salient feature and that is that we are now moving the goalposts and I would ask the Minister before she departs from us, for what I hope is a very long well-deserved and graceful retirement, that she does pen in the Department of Home Affairs diary somewhere that a review of this law will take place possibly in 2 years' time because I think it is very important that we do keep tabs on how new legislation is operating. Clearly, one of the concerns I would have is the interpretation of what now will be, for example, disorderly conduct. In the same way as one person's terrorist is somebody else's freedom fighter, there is bound to be a grey area in just what constitutes disorderly conduct and given that we are in the middle of European football championships what may be seen as, for example, very innocent and exuberant celebration of football victory in the streets of St. Helier may obviously be regarded by others as a gross intrusion of their rights to peaceful enjoyment of their residence. So, I think that clearly outcomes will follow from the adoption of new legislation, but I would ask that the Minister does ensure that it is looked at over a sensible period of time to make absolutely

certain that there are no unintended consequences of what this law is trying to achieve.

5. Deputy J.G. Reed of St. Ouen :

I would just like the Minister, when she sums up, to deal with the issue of proportionality and when and how the offence is dealt with, if and when and how it is determined. Because my concern is that as we are well aware we have a number of youngsters, 16, 17 years of age, that from time to time do get into trouble and I would like to know whether or not if these youngsters commit an offence under this law, how they will be dealt with and can they indeed be dealt with at the Parish Hall level even if they have committed, and it is shown that they have committed, an offence under this law.

6. Deputy D.W. Mezbourian of St. Lawrence :

Very briefly, I concur with what the Deputy of St. Peter said earlier about the Police Authority and the Police Complaints Authority and the fact that we must be sure, we must be absolutely certain that if this law is passed it will be dealt with correctly by the States of Jersey Police. In fact the Attorney General, during the last debate, pointed it out to us quite clearly that it is for the Assembly to balance the potential downside if the police do not perform their convention rights against the upside in creating a structure for what will allow the police to deal with public disorder of the kind that the Minister has set out today. Similarly, I agree with Deputy de Faye said and I too read the report in the J.E.P. (Jersey Evening Post) last night concerning some of the Portuguese community who feel that they will be restricted perhaps by using their horns during the European Cup, and I see Senator Cohen is looking at me questioningly. The report in the paper, Senator, referred to some of the Portuguese community. It is their tradition to hoot their car horns by way of celebration. Similarly, as we probably all know, the French culture during wedding celebrations, their tradition too is to sound their car horns. I do have some concerns whereby at times we try to absorb the cultures of other communities into our Island way of life and yet here we are possibly about to approve legislation that I think would in fact restrict the expression in some way of their culture. So, I have some difficulties with the disorderly conduct. Finally, Sir, again with reference to what Deputy de Faye has said regarding a review of this legislation if it is indeed approved, I wonder if the Minister will explain firstly why in bringing forward this legislation she has not listed, as indeed other jurisdictions do, what constitutes disorderly behaviour and having given that explanation or that reason perhaps she will also confirm that in her notes to the future Home Affairs Minister she will direct that perhaps consideration be given to listing what constitutes disorderly

behaviour.

7. Connétable K.P. Vibert of St. Ouen :

As the Minister pointed out in her introduction, the members of the Honorary Police were consulted on this and certainly the feeling among its members is that this will in a way add another quiver to their bow in their ability to deal with young people, which is now one of the main tasks which they face across the Island. We heard yesterday that there are problems in St. Helier and St. Saviour and St. Clement, but certainly all the other Parishes experience similar problems from time to time. I think that the danger is that Members are looking for problems with this law which may or may not exist, but certainly I think that we need to go forward and use this law sensitively, sensibility as the Minister proposed yesterday, and let us see how good a tool it is for our police authorities to be able to use. The Deputy of St. Ouen asked the question about how the Honorary Police will use this at Parish Hall Inquiries and it is and has been for quite a long time a policy of the Honorary Police to try and keep youngsters out of the criminal justice system. I am sure that this will enable youngsters to be pulled up and the error of their ways pointed out to them without them getting involved in the criminal justice system. So, I will support this and I hope that other Members will as well.

8. Connétable D.J. Murphy of Grouville :

I took the trouble of meeting with some of my Honorary Police last night to discuss this and to read through it quietly and whereas we have had disservices in Grouville over the last weekend, as you have probably heard, they are basically very much in favour of it. However, as I pointed out to them, that we do need the balances with this and I am personally not 100 per cent convinced that we have the right balances to go with it because, as the Constable of St. Ouen has already said, our policy in the Honorary Police is to try to keep children out of the court system and not get more excuses to bring them into it. So, I would reluctantly say that, acting on the advice of the Honorary Police, that I will support this, but however I would like to take up Deputy de Faye's idea that in 2 years' time we have a review to see how this is working and make sure it is not being abused or misused. On the other question of the ethnic points brought up by Deputy Mezbourian , I spent quite a lot of my business life in the U.K. and I always remember sitting in a café in Queens Way where 2 Greek gentlemen were, I thought, starting the Third World War with the way they were dealing with it, but it turned out when I inquired that they were just discussing the weather. So, a lot of this thing can be mistaken and I would like to know that we perhaps have some leniency in dealing with these situations. So, all in all, Sir, I will back this motion, but I would like to see it reviewed in 2 years' time.

9. Deputy A.D. Lewis of St. John :

It should be no surprise to Members that obviously I want to support this bill. It is an important tool for the police, both the States Police and the Honorary Police. However, I could not just sit here and listen to what amounts to some considerable criticism of the police from certain Members,

without saying something. I spent Saturday evening out with the police, as I frequently do, with Senator Ozouf . We were looking at the licensing issue and Senator Ozouf the next day sent a very long email to the Chief of Police congratulating him on the professionalism of his force and this is what I see all the time. I was quite disappointed to hear Deputy Le Claire suggesting that the police simply were not interested in certain incidents that occurred. If Members ever observe that sort of thing, please complain. There is a procedure to do so. That is certainly not the case in most cases. The surveys we conduct suggest that the police, both Honorary and States Police, are very well trusted and do, by and large, an extremely good job under sometimes quite difficult conditions. One of the other things I would like to remind Members is that unlike forces in the U.K. when an officer has finished work in Jersey they do not go away 100 miles away or perhaps a bit less to the leafy suburbs and disappear. They live in our community, so they are transparent. They are seen every day, whether they are working or they are not. They cannot go and hide away, so they do a very good and professional job. Contrary to Deputy Le Claire's suggestion, they do smile. Even when they are in difficult situations they smile and are nice to the public. That is what they do and that is what the honorary force does as well. So, I was quite disappointed to hear those comments. The Deputy of St. Peter criticising the Police Complaints Authority; well, I am assuming he was suggesting they were not independent enough. I can assure him that they are and maybe he is just not hearing the results from the Authority that he would like to hear because sometimes we are disappointed when that happens and I can understand that. But the fact is they are professional and they are independent. The Police Authority - we are working very hard on at the moment and I am sure the Minister will say a few words on that, but we will, we hope, be introducing a shadow authority before the end of this year. In fact, the police law which will enable us to do that will be lodged very, very shortly. One of the things that I noticed out of Saturday night, the custody suite was full by the end of the evening. So believe me there is a real need for this because when I went around the custody suites that evening, most of the notes on the doors where we would put what the offence of the prisoner is, was: "Failed to obey." That is what they were arrested on, not: "Drunk and disorderly" and so on because of all the issues that causes us when trying to get a prosecution. A number of people in the cells that night were arrested for failing to obey. Now, obviously when you get that to court that can cause some problems in trying to get a meaningful prosecution and this is just an illustration and is one of the problems we have with the current use of common law. That is why it is very important that we make these changes. Like I say, I just wanted to really stand up and defend the police. If they, at any time, are not up to standard there is a process and procedure to make sure that they are. The police are accountable, they should be accountable, and they will remain accountable and there will be various extra processes put in place soon that will make them even more accountable so I do not think Members should be fearful of them abusing

this law. They have to implement numerous laws every day of the week and take judgment calls, often split-second judgment calls, and they are trained to do that. They are not going to waste time and resources by frivolous accusations of disorderly conduct. They are only going to do it when it is absolutely necessary. It is another tool in the box to enable them to do their job better.

Deputy P.V.F. Le Claire of St. Helier :

On a point of order, Sir. The Assistant Minister attributed comments to me that I did not make. I never mentioned anything about a smiling policeman or a non-smiling policeman. Those were the words of the Deputy of St. Martin. The other comment about me saying that the police were not responding to issues was not one that I made. He may have misinterpreted the concern relayed to me by a member of the public, who was complaining about the incidents at Havre des Pas. I went to great lengths, Sir, to thank the Assistant Minister and the Minister for their assistance in dealing with the issues.

The Deputy of St. John:

I apologise if I misinterpreted Deputy Le Claire but he did say yesterday that he was disappointed in the response from the police and I thank him for his clarification now and you are quite right, there is not ..

Deputy P.V.F. Le Claire: Well, I dispute that, Sir.

10. The Very Reverend R.F. Key, B.A., The Dean of Jersey:

I was not sure whether to speak on Article 2 at this stage but I want to give the Minister a chance to set my mind at rest. In this Island, we have extremely good relations between the members of the various religious communities and, indeed, between the religious communities and the secular community, and that is a very good thing. Members will be aware, if they followed the news in the U.K. (United Kingdom), of the story a few weeks ago in the press in Birmingham where 2 Christian ministers were stopped by a Community Support Officer because they were engaging in dialogue with young Muslims on the street and having a good conversation about the 2 religions, but this particular Community Support Officer took exception to that and said this was a hate crime and if they did not stop, he would have them arrested. Now, his Chief Constable did show him the error of his ways and, of course, we are a million miles from that ever happening in Jersey, and I quite understand that, but I am just concerned - and as we are into hypothetical incidents - let me paint a small picture. We have a wonderful open air carol service supported by the Tourism Authority in Royal Square. Five hundred people were at the first one 2 years ago, and over 1,000 this last Christmas. I would hate for somebody to be walking past who did not share a Christian faith or who misunderstood what we were doing in celebrating a tradition that the vast majority of Islanders would share and say: "Well, now I have been caused distress by this." I am absolutely convinced nothing could be further from the intention of those who drafted this law, but I am aware that when you go fishing, sometimes you catch more than that for which you have angled. I would love to have my mind set at rest that there is no way in which our basic freedom of speech can be eroded by this law, either at this stage, or by taking up the suggestion that others have made of a review.

11. Deputy I.J. Gorst of St. Clement :

I want to speak very briefly. I do, on the whole, support this piece of legislation. The difficulty I have, and which I think that I heard others articulating both this morning and yesterday afternoon, is that it is not possible for this Assembly or any Assembly to legislate for common sense or for the sensitive application of legislation once it has been brought in on statute. I believe entirely that for younger members of society, the way forward to all breaches of law must be through, and continue to be through, the Parish Hall Inquiry which I believe that we have right and is, in fact, a sensitive and common sense application of legislation. The problem, therefore, Sir, I believe that we face is there is no way that either the Minister can confirm or that we, as Members, can know in advance that the law will be applied in a common sense fashion which is why I wholeheartedly support the suggestion of Deputy de Faye that this piece of legislation, not should, but must be reviewed after probably 2 years of operation, which seems a reasonable length of time. However, I would ask the Minister that in these, what seem to becoming extensive notes that she is leaving for her successor, that it is not only the department that undertakes this review but that it is undertaken hand in hand with the then Scrutiny Panel of the day so that they are able to take objective evidence from people who may feel that they have been, shall we say, at the rough end of the application of this particular piece of legislation. I hope the Minister will take these comments on board and be able to give me some satisfaction that that is the way that she will approach this particular piece of legislation.

12. Connétable T.J. du Feu of St. Peter :

The concerns expressed by a number of Members clearly have to be taken very seriously by the Minister and, for my part, I will lend my support on one condition, that the Minister gives a categorical undertaking that the Police Authority will be in place before the end of the year and that a review will take place within the next 2 years.

13. Deputy K.C. Lewis of St. Saviour :

I welcome this new legislation. The people of Jersey should be able to have peaceful enjoyment of their homes and surroundings. There must be checks and balances in place but I am pleased that this also includes stalking harassment legislation which I believe will give comfort to many people.

The Bailiff :

I call upon the Minister to reply.

14. Senator W. Kinnard:

I am very grateful to Members for their generally supportive comments and I apologise in advance if there are any Members that I may fail to mention but I, indeed, thank them for their contribution in any case. Deputy Le Claire, I am grateful for his support and, indeed, his generous comments about the support he did receive from the States of Jersey Police in dealing with incidents that he and his constituents have suffered. I can assure the Deputy that I and my Assistant Minister do take a close interest in the level of anti-social behaviour and disorderly conduct taking place, particularly in the night-time economy and we have just heard from my Assistant Minister that he and Senator Ozouf , in fact, joined a night shift in St. Helier just recently and I am happy to extend an invitation to any Members who would like to join a night shift and become more familiar with how the States of Jersey Police operate when policing for the benefit of our community. I would certainly say, particularly to those who have made critical comments today, that I invite you to join us on one of those occasions. Deputy Le Claire also assumed that I have twice as many police officers than I have. Well, I wish, but rather than the 500 he assumes I have, I have about 240 and those are fewer officers per head in Jersey than either Guernsey or the Isle of Man. On the issue of manpower and financial costs raised by the Deputy , there will be no extra costs resulting from the legislation because it is envisaged that it will be policed with a light touch and used often as a form of prevention and deterrence rather than of enforcement. Deputy Martin and, I think, Deputy Baudains, raised some of these issues. Again, she had some concerns that the law might not be used with the light touch that she wants and I should point out to her that insulting behaviour has been removed from the draft, raising the level of offence. Also Deputy Martin and Members should be aware that I have never introduced A.S.B.O.s (Anti-Social Behaviour Orders) in this law. They are not in this law and they have not been in the recently agreed Criminal Justice Policy and this is because I believe that A.S.B.O.s are indeed a heavy-handed approach, often quickly leading to the criminalisation of young people, and I believe also would be alien to Jersey's culture so we do not have the sorts of tools there either that they have elsewhere. Also, Sir, one has to balance again on the one hand, I think this is a point made by Deputy Mezbourian , an assertion that the police might not use their discretion appropriately in some circumstances against the need to create a clear legislative structure whereby the police can deal with one of the major, if not the major, public concern that people have about the threat to their quality of life. The alternative, Sir, is not to offer protection to those suffering from threatening, abusive and, indeed, disorderly behaviour. I know the deep concern that the Deputy has for victims of crime and vulnerable people and I hope that what I have said about the light touch approach will mean that she will, in the end, feel that she can support the measure. Deputy Martin was also concerned that the provisions of the law did not extend in Article 2 to conduct in a private dwelling where both parties are present in the dwelling. The reasons, Sir, are to do with enforcement being available through other means to deal with domestic abuse and also the complications that could arise where a private argument between partners or friends could give rise to an offence. It seems to me that the Deputy 's suggestion that the law should cover these sorts of scenarios goes completely against her preference for a light touch approach so I hope she will vote in favour. Senator Vibert and Deputy Fox, I am grateful to both ..

Deputy J.A. Martin of St. Helier :

Would the Minister give way, please? No, my concerns were about domestic violence. It was the issues of in the same dwellings where we do have a lot of agricultural or tourism workers who are in the same dwellings and even sharing the same rooms. They are not related and they may not be of the same nationality.

Senator W. Kinnard:

Yes, we looked at that very closely when the first draft law originally came to the Home Affairs Committee and that aspect was in the draft law and we were advised that it would, on the one hand, be very difficult to enforce and, on the other hand, really tend to catch people who might be having an argument but which did not really fit the test of the focus of this law, which was really about disorderly conduct that was affecting others. I am also grateful to Senator Vibert and Deputy Fox for their support and I agree, certainly, with Senator Vibert that the law to prevent stalking is long overdue in this Island. I am very pleased to be the politician bringing it forward today and I think when you hear later on in my speech some of the things I relate to you, you will probably see why I am pleased to bring it forward. Senator Le Main, I was mightily impressed, I must say, with the passion of Senator Le Main. It is a great step forward, one of the best pieces of social legislation in the last few years. I can only agree with him, excellent. Deputy Ferguson raised the same points, in fact, that she did in the last debate on this issue. Her concerns were about subjectivity and she feared again a heavy-handed approach and the point was also raised by, among others, Deputy Martin. There are a number of protections for the citizen against unreasonable complainants and what might be construed as perhaps overzealous policing. Firstly, the reasonable person' is a concept which is commonly used in law. It inevitably involves some element of value judgment to be made but it is all tempered by human rights principles and there are several tests or protections at several stages in the process. From the initial police officer's decision to arrest, thereafter the reasonableness of the officer's act will be scrutinised by the charging Centenier. The prosecution also needs to be satisfied that there is a case to answer. The defence and the trying court also subject the initial action on the part of the officer to further scrutiny. Also, Sir, an individual could complain - and I dissociate myself from the comments made by the Deputy of St. Peter - because an individual can also complain to the Jersey Police Complaints Authority or, indeed, sue for wrongful arrest. Deputy Ferguson was concerned that the penalties also were perhaps too draconian. Firstly, the penalties have been set in consultation, obviously, with the Law Officers as to their appropriateness for the offences that are created by this draft law. I was surprised, Sir, that Deputy Ferguson, given that she had previously acted as an Honorary Police Officer, did not realise that these here are maximum penalties. Some very minor offences may, indeed, be dealt with by words

of advice, a casual inquiry or a minor fine below the maximum that has been set. Only the .. Deputy S.C. Ferguson of St. Brelade :

If I may get a point of clarification from the Minister, then: "A person who commits an offence under paragraph 1 shall be liable." Am I reading that incorrectly?

Senator W. Kinnard:

Because someone is liable to it, it does not necessarily mean that that is the actual penalty that they will receive. It will depend on the absolute circumstances of the case as to whether or not it is provable to that extent that it would be dealt with in that way. Only the most serious of offences will obviously attract the harsher sentences of the court. Members must be aware, for example, as well that stalking and harassment cases can be potentially very serious indeed and if deemed so serious, the court could award the maximum sentence. I am surprised also that, as I said, the Deputy did not really take that on board. Deputy Duhamel also raised a point about the standard scale of fines, asking that these be reviewed and that more use be made of fines as a penalty. Of course, this is something I will discuss with the Attorney General and others, as appropriate. The Deputy of St. Martin asked about wider consultation. Deputy Celia Scott Warr en ably dealt with this point, I think, in her capacity as the member of the Safer St. Helier Steering Group. This wide- ranging and highly successful community initiative has looked closely at the draft law and given it its support and, indeed, also has the domestic violence forum. I was surprised again by some of the negative comments made this time by the Deputy of St. Martin because, in the previous debate on this projet, he described it in these terms: "It gives clarity and has good balance." Further, as Chairman of the previous Education and Home Affairs Scrutiny Panel, he wrote to me saying: "My panel view the draft law as a sensible and well-constructed piece of legislation." The Deputy of St. Peter had some reservations as to the powers that have been given to both States and Honorary Police and yet both States and Honorary Police have said that they both want these and need these and, indeed, so has the Magistrate. His concerns about accountability were touched on by others and, indeed, I answered a written question only yesterday, Sir, in relation to the establishment of a Police Authority and when we will be bringing the law to the States. We hope to bring it in the autumn and, in the meantime, it may well be that we set up a shadow Authority while the law is on its way back from the Privy Council. More about that, I think, later. The Police Complaints Authority: again I think they do an excellent job. They are independent and for that reason, they are their own bosses in these matters of dealing with complaints and I do say, Sir, and I say this quite carefully and advisedly, that the Deputy himself needs to be a little bit careful when commenting on these issues in the way that he does because I am aware that he did seek in some way to influence - and I will say no more than that - a particular case, and I find it interesting that

he also says that the principles ..

The Deputy of St. Peter :

I refute that wholeheartedly. I have never ever attempted to influence any case whatsoever.

Senator W. Kinnard:

Well, I will take back "influence", "comment upon". It is interesting that he finds it difficult to accept the principles of the original draft of this legislation as it was first agreed when he was a member of the Home Affairs Committee. Deputy Le Fondré supports ..

Deputy R.G. Le Hérissier of St. Saviour :

Can I interrupt? It strikes me that a very serious slur has been made upon a Member and I do not think it can be allowed to rest . That Member will now leave the Assembly with a mark upon his character and I think it has to be formally resolved.

Senator W. Kinnard:

I will withdraw it. It is far simpler. Generally speaking, Deputy Baudains welcomes the legislation. He also became, I think, quite confused about the issue of domestic violence. The Deputy , I think, had the idea that domestic violence would be covered by this legislation but the issue here is that domestic violence can be prosecuted in other ways and, indeed, we, as Home Affairs, were very concerned to protect the domestic freedom of thought, as we call it. We did not want an ordinary argument between partners to be caught by the law and that is why the law does not extend where both persons are inside the same dwelling. Deputy de Faye looked at what he called hypothetical cases and, indeed, Sir, these hypothetical cases are based on reality and I will go on to refer to some real cases before I finish. I was asked if I would review the law after a couple of years and I am always happy, Sir, to agree to review the workings of any new legislation and how it is operating and, indeed, I am more than happy to accede and agree to do that. It is also open, of course, to any Member to bring a proposition at any time to the House to cause a debate or a rescindment. The Deputy of St. Ouen again mentioned proportionality and he was concerned that young people might be sent to court straight away rather than be dealt with at a Parish Hall Inquiry, and so this law is not designed to bypass the Parish Hall Inquiry. I see the Parish Hall Inquiry very much as being part of the lynchpin of dealing particularly with young people and their anti-social behaviour. Deputy Mezbourian , I take on board the comments that she has made about the World Cup celebrations and I will go on to say a bit more about that and I will certainly pass her comments on. She asked what constitutes disorderly behaviour and why is it not defined properly in the interpretation Article. I think it has its common meaning and obviously would depend on the circumstances of the particular situation. It is very difficult to specify in a list what would constitute disorderly behaviour and the problem in law with a list is that you quite often miss out something which should be covered and should be dealt with by the law. The way that one deals with it is not to have a strict definition of something which would normally have its ordinary definition to a reasonable person. The Constable of St. Ouen, I am grateful for his support and, indeed, of the support of the Connétable s generally for this piece of legislation. They very much want this law and I do believe that they will use it sensibly and sensitively and I agree with the Connétable of Grouville that it is very important to try to keep young people out of the court system. The Dean mentioned issues to do with religious tolerance and community relations and issues to do with free speech and I can assure the Dean that our basic freedom of speech will not be eroded by this legislation. It has, of course, passed its human rights test and, indeed, there are the tests of reasonableness that I spoke to in relation to Deputy Ferguson. On the issue of human rights, there is, of course, a hierarchy of Convention Rights and Article 10 is the right to the freedom of expression which can only be interfered with if there is an interference on the basis of law where it is necessary in a democratic society or in relation to a permissible aim, such as the prevention of crime, the protection of public order or the protection of the rights and freedoms of others and this is, I think, the key. We have to be able to balance the rights and freedoms of those who might engage in this sort of anti-social behaviour with the needs of the victims and I do believe, Sir, that the way in which the law is framed and the way in which it is designed that the law will be enforced, that it will not, indeed, interfere with that particular freedom or right that the Dean referred to. Indeed, I think the Dean and I will take comfort from the fact that in the rather extreme case that he expressed, that, indeed, the Chief Constable stamped on that immediately and made it absolutely clear that it was a misuse of police powers in that context, so I think he can rest assured with what else I am going to say about relationships between the police and the

communities in our Island, that that sort of situation will not arise here. Deputy Gorst covered similar areas to Deputy de Faye and I think I have covered quite a lot of that already but I do take on board his comments. The Constable of St. Peter asked again about shadow authority. I have covered that and, again, I thank very much Deputy Lewis for his support. I know that he takes very seriously the matters to do with Home Affairs and thinks very seriously about them and so I welcome his support there. So I do want to make a few remarks about some of the things that have been said in what has otherwise been a really positive debate. I think it is unfortunate that in an otherwise positive debate, some Members did choose to, what I consider unduly and unfairly, criticise the police because information from many sources suggests quite the opposite, rather that in fact, confidence in the police is growing. The Jersey Annual Social Survey, which is conducted by the Independent States Statistics Unit, found that relations between the Jersey Police and the public are good. Seventy per cent of the public either agreed or strongly agreed with this view. Interestingly, relationships between the police and our local minority ethnic communities are particularly positive in contrast to most forces in the U.K. Further, nearly 60 per cent also said that they agreed or strongly agreed that the police are in touch with the needs of the community. To provide further reassurance to Members, Sir, when this law comes into force, the new D.C.O. ( Deputy Chief Officer) to replace Lenny Harper, has just been awarded the Queen's Police Medal, largely for his approach to community policing in Northumbria and I suggest to Members that he will ensure that a light touch approach is adopted to this legislation. In conclusion I leave Members with some quotes from the public who have contacted me: "I support of this legislation." "We felt besieged. The youths became very abusive, likened to being verbally raped." "As my life gets even worse at the hands of my ex-partner, why in this day and age can Jersey allow stalking and harassment?" "What can I do to help get this law through?" "We have instances of vandalism and anti-social behaviour. It is immensely depressing." "Last year, I was stalked for 9 months. It was terrifying. The police were fantastic but there was not much they could do." Putting in place some sort of protection will help greatly and I am sure there are many other cases like this taking place in the Island. Finally, one I received yesterday: "Good luck, Wendy, with putting through the new law on public disorder and, in my case, stalking and harassment. I truly hope there are no hitches getting it through." These testimonials, Sir, speak eloquently of the need for this legislation and, Sir, I maintain the preamble to the bill. [Approbation]

Deputy K.C. Lewis :

A point of clarification. I am fully in support of this legislation, Sir, but I do believe that Deputy Ferguson had a very good point when she said a person would be liable. Is there not an implication that any resulting judgment would be mandatory?

Senator W. Kinnard:

Perhaps we could ask the Attorney General to answer that.

Deputy J.A.N. Le Fondré:

Can I ask the Attorney General if he has had a chance to consider my earlier questions also?

Mr. W.J. Bailhache Q.C., H.M. Attorney General:

There are 2 meanings to the expression "liable to" but the second meaning is "being in a position to incur" and that is an expression which is often used in relation to a fine. Being liable to a fine means that you are in a position whereby you might incur a fine. Take care as you walk down the steps. You are liable to fall because they are slippery. It does not mean you are going to fall and so I am in no doubt at all that "liable to" does not mean that the court must impose a sentence of 3 months' imprisonment and a fine of level 3, and the court has a discretion to impose whatever sentence within those parameters that it thinks is appropriate. On Deputy Le Fondré's point, which was whether or not, I think, written words could be included within the offence created by Article 2, I am sorry to disappoint him but, in my view, they could. If somebody stands on a street corner and uses words that are abusive, for example, or threatening, and shouts them out at the top of his voice and the other ingredients of the offence are satisfied, he will have committed an offence. For my part, I see no difference between standing on a street corner and saying these things and standing on a corner and holding up a placard saying the same things and, in my view, therefore, I would, in an appropriate case, give authority for a prosecution. I say "in an appropriate case" because the facts .. one of the Members, I think it might have been Deputy Gorst , has said how difficult it is to frame language that requires the use of common sense and, of course, this does require the use of common sense but taking the Dean's example of what happens at a church service with 500 people present, if, in fact, there was somebody who attended that service with a view to disrupting it, perhaps, and held up placards which were abusive of Christians .. one does not need to go into examples of what they might be, but they might be seriously abusive and cause serious offence to the 500 people present .. I would certainly take the view that if this law is in place, that is a matter which is capable of being prosecuted and, in my view, rightly prosecuted. So the language of this offence does require, of course, common sense by the police. It does require common sense by the prosecutors and, ultimately, if a charge is brought, it will require common sense by the court which is trying that charge and, of course, that is why our system of justice is as it is.

Deputy J.A.N. Le Fondré:

Can I seek a further point of clarification? I was not expecting that response. If we go back to last year, I think it was Senator Vibert who used the example of animal rights demonstrators who can get quite vocal in their demonstrations and will have various placards which are quite visually strong, robust, and could be offensive to certain people. Is the Attorney General saying that in those circumstances, those people could be arrested?

The Attorney General:

The question would be whether or not the language, the words that are used, are threatening or abusive and whether the activity takes place with the other ingredients of the offence as set out in this piece of legislation and if all those ingredients are passed, yes, the answer is that the police could arrest. Now, I think it is very difficult to take a particular example, and the Deputy chooses animal rights demonstrations as one example, because it may depend on the context. In all these criminal cases, much does depend on the context as to what is reasonable and what is not and one must expect that the police, as a public authority, will respect the right to freedom of expression because they are charged, they are required to do so, and there is no doubt that this draft law, just like the U.K. Public Order Act 1986 upon which it is based, is capable of interfering with the right to freedom of expression and it is a question of balance for Members as to whether it is thought that the balance comes down in favour of adopting the law because it is needed as a protection for the sorts of circumstances which the Minister for Home Affairs has set out. That is a matter for Members.

Senator W. Kinnard:

Can I just give a point of information that the concern that Members had recently previously was in relation to words and images and expressions of it that might be insulting. That level has been removed. It now would have to be threatening and abusive which is obviously a much higher level in terms of offence.

The Attorney General: Threatening or abusive.

The Bailiff :

Threatening or abusive, yes. Very well, I invite the Greffier to open the voting which is for or against the Principles of the Bill.

The Bailiff :

Now, Deputy Mezbourian , do you wish to scrutinise this legislation?

Deputy D.W. Mezbourian (Chairman, Education and Home Affairs Scrutiny Panel): No, thank you, Sir, we have already conducted some scrutiny upon it.

The Bailiff :

Very well. I call upon the Minister to propose Article 1.

15. Senator W. Kinnard:

Article 1 just gives the interpretation provisions, so I propose Article 1.

The Bailiff :

Article 1 is proposed and seconded? [Seconded] Does any Member wish to speak on Article 1?

1.15.1 Deputy F.J. Hill of St. Martin :

I  would  like  say  a  couple  of  things  on  this.   Yesterday  when  I  did  speak  and  I  am  rather disappointed that the Minister thought I was speaking in a negative way, I welcomed the proposals but I did say what we needed, and, indeed, it was echoed very many times after my speech, we

needed a common sense approach. I have my notes here and I said we need a bit of tact and good humour by police officers. Maybe going round with smiles on their faces may help to defuse the situation but I was talking as someone who does have some experience in knowing how to defuse situations. I also said that what we were doing really here, particularly with this article, was replacing a common law way of dealing with something as, indeed, with something in statute and that is what we are doing and, again, I give my support to it.

The Bailiff :

I put Article 1. Those Members in favour of adopting it, kindly show? Those against ? Article 1 is adopted. Do you move Article 2?

16. Senator W. Kinnard:

Article 2 sets out the offence of threatening, abusive or disorderly conduct as being within the hearing or sight of another person or likely to cause alarm or distress and the relevant penalties. The offence can be committed in a public or private place except where a person is inside a dwelling and the other person is inside that dwelling. The offence  is only committed if the defendant intended to threaten, be abusive or engage in disorderly behaviour. Intoxication, whether by drink, drugs or other means, will be no excuse or defence unless it can be shown that the intoxication was not self-induced. Article 2 also establishes the defences such as the defendant had no reason to believe that there was a person within hearing or sight or that the conduct was reasonable. A person who commits an offence of threatening, abusive or disorderly conduct under paragraph 1 shall be liable to a term of imprisonment of 3 months and a fine of level 3 on the standard scale, being £2,000. I move Article 2.

The Bailiff :

Article 2 is proposed and seconded? [Seconded] Does any Member wish to speak?

1. Deputy J.A.N. Le Fondré:

Firstly, I will ask Members to read the article quite carefully just to make sure they are very clear on what we are going to be considering. A person commits an offence if he or she uses words that are threatening or abusive, behaves in a threatening or abusive way, or engages in disorderly behaviour but is within the hearing or sight of another person likely to be caused alarm or distress by the words and there requires to be either an intention that his or her words or behaviour to be threatening or abusive or is aware that the words or the behaviour may be threatening or abusive. One of the main concerns in the debate last year, Sir, that many Members raised, including myself, was basically the impact upon freedom of expression and I also accept the comments of the Minister in her closing speech that it is obviously not the intention to attack freedom of expression. It comes down to that difficult balance between what we are all trying to get to, which is to deal with the yobbo in the street who is not drunk, but also about protecting the ability for individuals to express their views in their own way and for groups, unions and rallies to express their views in a free and generally robust manner. It is fair to say that many comments were made about written representation and obviously that caught up with the definition of "insulting". Obviously, the Minister has moved on the definition of "insulting" and I welcome that movement, but the wider context was about freedom of expression and I have to say, Sir, and I certainly was not anticipating that response, I am very deeply concerned at the recent comments from the Attorney General because that is why the original concerns were expressed, albeit now we are at a higher level of threatening or abusive behaviour. That, again, comes down to interpretation and unfortunately, no matter how good assurances are that are given in this Chamber and this Assembly, it is what is written in the law that matters because if it is written, ultimately, it can be used. Again, it comes down to yes, we do want light touch regulation and I certainly welcome the proposals to review the legislation within 2 years but, again, it is what is written now that we are approving. Obviously, I do endorse the views of Deputy de Faye earlier on. It is not about the problem of Members looking for problems. I think that is also, to an extent, our job, but when we look for problems we also have in mind sometimes the application of similar legislation in the United Kingdom and that has not

always been the intention. The legislation that has been approved has sometimes had unforeseen application and consequences and I believe we have seen more examples since the last debate. One that I always remember, and is obviously different legislation, is where one local council used new legislation to allow them to use hidden surveillance measures to spy on parents to determine whether they lived in the house they said they lived in for the purposes of determining the catchment area of the school that their children could go to. Now, to me, that is not an appropriate way of using legislation which I believe was originally designed to catch terrorists. It is obviously different legislation but it can show the unforeseen consequences that can arise. Just to emphasise, I too have been out with the police. It was just before Christmas and I accept that they do operate in quite difficult circumstances and they deal with all sorts of problems so on no account am I criticising the officer on the street but, again, it is the problem of the application of similar legislation in the United Kingdom and if that can have unintended consequences, why should Jersey be any different, especially when the U.K. has similar human rights legislation in place. Just to go back to the article, I have a number of specific concerns. I have one fairly fundamental one which has arisen in the last 5 minutes but I think each one of these is probably enough for me not to support Article 2. Now, obviously the draft has been in abeyance for quite a long time, for over a year, I think, and I think Members are very clear, we understand the principles of what the department is trying to achieve, but we are extremely concerned again upon the impact of freedom of expression. Now, I agree, I am slightly confused here because the Scrutiny Report and the Minister herself, in her opening comments, stated that she consulted with the States Police, the Honorary Police, the Council of Ministers and the Attorney General although there may have been another group which was of the St. Helier side. Where I get concerned on that type of consultation is that, effectively, it is all internal. It is either government or, if you like, the policing world. As I understand, it has not consulted with, for example, the likes of the Citizens' Advice Bureau or perhaps, more appropriately, the Law Society, i.e. the people with a trained legal mind who can see the problems of applying this type of legislation on the coalface or in the courts so, i.e. the civilian side, not the governmental side. I have to say, especially given the concerns expressed over a year ago, that I do not find that particularly satisfactory. There also are issues, Sir, about the different types of existing practices. We have heard references to common law. We have heard the point that where there is not drunkenness there is a problem. It depends on the level of concern, I think, of the particular incident because, ultimately, as I understand it, you can still charge someone with assault because that includes putting someone in fear of immediate force being used against them but without hitting them. That obviously covers threatening behaviour. I am still not entirely clear about the issue of refusing to obey the lawful instruction of a police officer which the Deputy of St. John referred to in his speech in the principles because, obviously, the police were able to arrest someone at the police station level, and maybe it is just later on when it gets to prosecuting someone that it becomes more tricky. I accept we are getting into whole areas of subjectivity between what is presently lawful but not socially acceptable, but is that not the whole point? If something is lawful now, should we be trying to criminalise it effectively and is that balance between the yobbo in the street who is not drunk? As an example, Sir, if you take the disturbances between the English and Portuguese supporters in the last World Cup, my understanding is that the police were able to arrest and charge people using their existing powers. Their problem was their inability to identify people rather than not having an offence to charge those people that they could identify. Also, Sir, I would welcome some clarification because there does not appear, as I understand it, to be definition as to whether the standard of causing alarm or distress is one that is caused to the reasonable bystander and not just to any person who happens to be distressed, and I think that is slightly different as to whether the actions of someone are reasonable. But let us take a slightly hopefully light-hearted example. If we take the recent rallies and commentaries relating to G.S.T. (Goods and Services Tax). Now, hopefully, we all realise that G.S.T. does not stand for " Geoff Southern 's Thumb" but neither does it stand for "Get Stuffed, Terry" which is one of the slogans, and I believe, rallying cries, at the anti-G.S.T. rally. Now, I obviously do not condone

those comments but I do believe that people should be able to demonstrate without fear or favour. Now, what would happen if the Minister for Treasury was of such a disposition - and I can obviously vouch the fact that he is not - but was of such a disposition that he was distressed by those slogans. Could those demonstrators be arrested? More appropriately, and again, it is a balance and it is up to Members to judge. The examples that were used last time around when I spoke were of things like "Death to Thatcher" during the miners' strikes in the 1980s. Now, I think it is quite justifiable that those could have caused distress. I would have said that would be described as threatening but is that justifiable demonstration under freedom of expression? I think it probably is. Where I am very deeply concerned is the comments from the Attorney General that again we appear to be back at the debate of last year, admittedly at a higher level, but it is still a question of interpretation. Now, if we go back to the actual word in the article, it refers to a person committing an offence if he or she uses words within hearing of another person likely to cause distress. That then comes down to the interpretation of "threatening" or "abusive". Now, we heard yesterday of the difficulty in interpretation in that infamous order, i.e. one policeman's interpretation of "abusive", so if you apply that to this, one policeman's interpretation of "abusive language" may be different to another and that difference in interpretation can lead to arrest. It is all very well to rely on the courts but huge levels of distress can be caused through this process and, therefore, I strongly believe, particularly after the comments we have just had from the Attorney General, that this still has the potential to endanger freedom of speech. I would have to say that the Minister stated in her opening speech in the principles that an offence is only caused if a person intends his or her words to be threatening. Now, I find that slightly disingenuous because the rest of Article 3(a), as I have said, does provide the following or is aware that the words or behaviour may be threatening or abusive and that, to me, is a lot more subjective. Again, that is back to the issue of interpretation and that is back to the issue. As I said, I do not support the expressions but it is the usual comment of supporting the ability of people to make those expressions of "Death to Thatcher" in the miners' strikes. Therefore, I submit the department has still not achieved the original wishes of the Assembly in achieving that right balance between freedom of expression, whether written or oral, and that this law, if applied incorrectly, could cause significant problems in the future. I am not entirely clear, Sir, where we are here, whether we are voting on this article, Sir,

because the Minister has proposed this article. Therefore, I presume we are voting on it separately. If that is the case, Sir, then I am not going to be voting for this article. I support the rest of the law entirely, that is not a problem. If that changes, and we are somehow voting en bloc, I would have to vote against the whole lot but if I did have to vote against the whole lot, I am effectively voting against Article 2. I support the rest of it because harassment and stalking, no question, we need to have some legislation in place. I would ask Members to certainly consider this very seriously as they consider what their position should be on Article 2.

2. Deputy G.C.L. Baudains:

I go back to the comments I made earlier, Sir, about the possibility. Obviously a law is designed to do good but there is also the possibility of those unintended consequences and I think these do really occur under Article 2. I can imagine circumstances where I might be abusive and I intend to be [Laughter] or what I do might certainly be construed as intentional abusive behaviour. For example, if I am riding my bicycle and a driver nearly knocks me off it, I am quite sure I am going to yell at the driver of my displeasure. If I am walking along a pavement and a cyclist knocks me over, I am not going to say: "Good morning", I am going to say something which he might not appreciate. While we can all think this is never going to happen, this is all slightly amusing; unfortunately, I am noticing with regularity these sort of issues do occur in the U.K. where what eventually happens is the perpetrator or the instigator of the original problem gets away scot-free but what is essentially the victim is the one who ends up having some sort of charge brought against them. Now, I think that is unsatisfactory. As Deputy Gorst so eloquently said earlier, we cannot legislate for common sense and there is a danger here that common sense will get left behind. Where is the guarantee that common sense will prevail? Secondly, Sir, moving on to Part 5 of Article 2, I do get concerned with this reverse burden of proof. It is a defence for the accused