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Mr. Forth: I beg to move amendment No. 12, in page 2, line 4, leave out 'absolutely or'.
Mr. Deputy Speaker: With this, it will be convenient to discuss amendment No. 24, in clause 6, page 8, line 1, leave out 'absolutely or'.
Mr. Forth: The House will be relieved to know that amendment No. 12 deals with only a narrow--but important--point and need not detain us for too long. I really am quite worried about the wording in this part of clause 1(3). My amendment is therefore a probing one, so that I may clarify and ensure that I--and, therefore, the House--fully understand what my hon. Friend the Member for West Chelmsford (Mr. Burns) and the Government understand to be thrust of the provision.
Clause 1(3) states:
"An international football banning order may only be made--
11 Jun 1999 : Column 921
(a) in addition to a sentence imposed in respect of the offence of which the accused is (or was) convicted".
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In other words, a banning order may be in addition to a conviction. The clause goes on, however, to provide that an order may be made
"(b) in addition to an order discharging him absolutely or conditionally."
I can certainly appreciate the point of imposing a banning order subsequent to a conviction. I can also fully appreciate--although I am less happy about it--imposing a banning order in addition to an order conditionally discharging someone. Although I am no legal expert, I assume that a conditional discharge entails an element of guilt, and that a banning order would therefore be related to an act containing at least an element of guilt.
I part company with the Bill--this is the point of amendment No. 12--where it provides that a banning order may be made when someone has been discharged absolutely, as I really wonder whether that is the proper way to proceed. It seems to me--as a non-legal expert--that, if someone has been absolutely discharged, they have not been convicted and are not guilty of the offence.
In those circumstances, I cannot for the life of me see how one can justify imposing an international banning order--unless we are back to where we started in the debate and are saying, "We haven't been able to convict you in this case, or even to impose a conditional discharge--we are discharging you absolutely. But we don't much like the look of you, or your friends. These NCIS people are telling us that there's something pretty flaky about you, and that your behaviour is peculiar. We therefore have some reason to restrict your freedom. So, under the powers given to us by the Bill, we shall impose an international banning order, although you have been absolutely discharged." That really would be too much.
The provision would--as we have found time and again in the Bill, in provisions curtailing the court's discretion or dealing with people with or without convictions--tilt the balance too much. One of the traditions of our law is the presumption of innocence until proven otherwise, but here we have a provision that would mean that even if a person had been absolutely discharged, the courts would still have the power to restrict his freedom. I hope that I have misunderstood the position, because I find it unacceptable.
Mr. Maclean:
I confess to the House that although I support my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) on a range of his amendments, my name should not appear in the list of supporters of this amendment. I did not study this amendment carefully when my right hon. Friend showed it to me and I told the Clerks in the Table Office that I would happily sign all his amendments. I must part company from my right hon. Friend on this amendment.
An absolute discharge is still a conviction. I have never considered absolute discharges a sensible sentence in English law. If someone is convicted, they should face some penalty, however slight. Nevertheless, while the concept of an absolute discharge remains, it is still a conviction. It is not a finding of not guilty or of innocence: it is a finding of guilt where the court, in its infinite stupidity, declines to impose a sentence. The only penalty is that the person still has the stigma of having been convicted by the court. The hope is that someone
who has been absolutely discharged will not repeat the offence because he will know that he will face a much heavier sentence next time.
An absolute discharge is a conviction without a sentence, so it would be inconsistent to remove it from the Bill. If we were to do so, people who were convicted and given a £10 fine or a few hours' community service would be caught by the legislation, but someone given an absolute discharge for the same offence would not be caught. At the lower end, some of the penalties for the football-related offences are very slight. A few hours' community service or a £10 fine do not rank much higher than an absolute discharge.
Mr. Forth:
I am following my right hon. Friend's argument closely, as ever. Is he saying that if someone has been found technically guilty, but the court recognises that the offence is so minor that it does not require any penalties, such a severe restriction of freedom as an international banning order is still justified?
Mr. Maclean:
If there is a fault in the system, it is the existence of the absolute discharge. If my right hon. Friend is successful in the private Members' ballot next year and introduces a measure to abolish the absolute discharge, I shall be happy to support it. However, the absolute discharge currently exists and courts can and will impose it.
Mr. Forth:
If the court has been persuaded that an individual is highly unlikely to repeat an offence, how on earth can one justify an international banning order? The point of such an order is to ban someone who is likely to do something unpleasant, but my right hon. Friend has just said that absolute discharges are given to people who the court reckon will not do something unpleasant. We cannot have it both ways.
Mr. Maclean:
Different courts and time scales are involved. When a court gives a person an absolute discharge, it does so for one of many reasons. A court examines an offence, convicts the person who it is convinced committed it, and then disposes of that person in one of many ways--by means of a term of imprisonment, a fine, community sentence or custody. Alternatively, it may grant an absolute discharge. One of the dozens of possible reasons for that decision may be that, in the opinion of the court, that person is unlikely to commit another offence.
Weeks, months or years later, that person may come before a different court because there is a possibility that he will be involved in football violence. That new court will have to consider whether the terms of clauses 1 or 6 are satisfied, and whether an international or domestic banning order is appropriate. In such circumstances, the new court may conclude that, as the earlier absolute
discharge is still a conviction, a banning order may be appropriate because the person has not behaved himself in the interim.
I am conscious of the point that my right hon. Friend makes, which is that an absolute discharge feels like no penalty at all. The only penalty faced by a person given an absolute discharge is the fact that the discharge is still a conviction: that person has been convicted of an offence for which a financial penalty or a period in custody has not been imposed. Nevertheless, an absolute discharge remains a conviction and so has to be included if this part of the Bill is to be logical and consistent.
My right hon. Friend may say that absolute discharges are a load of nonsense and should be reformed. I agree, but we cannot do that in this Bill. While the absolute discharge remains available to courts as a sentence and a penalty, we must include it in this Bill. I sincerely apologise to my right hon. Friend that I did not study the amendment carefully enough when I signed up to it. I studied it in more detail overnight, and I have to oppose it.
Mr. Burns:
I do not want to disappoint my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth), but I share the views of my right hon. Friend the Member for Penrith and The Border (Mr. Maclean).
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