Criminal Justice and Police Bill

[back to previous text]

Mr. Hughes: Will the Minister give way?

Mr. Clarke: No; but I shall give way once I have dealt with all the points raised on new clause 6.

We then come to the question of dwellings, which is important, not least because of the earlier confusion on hotels that I sought to clarify. The provision will apply to any place that is used as a dwelling, including those that are part dwelling and part commercial premises. That is important if it is to cover places such as farms. The definition provided in the Public Order Act 1986 also includes caravans and even tents, but someone must be using the structure as their home. That is why hotels are excluded, so the provision cannot apply to a head of state who is making a visit; that is a different state of affairs.

The hon. Member for North-East Hertfordshire raised the issue of vicinity. I acknowledge that some people have queried what the most appropriate definition should be. One could discuss it, as I said earlier, but it is a matter of common sense to be dealt with by the police officer on the spot. We need a flexible power, and that is the right way to proceed.

On timing, I can tell the hon. Member for North-East Hertfordshire that there is no limit on how far away people could be ordered to go. It will be up to the constable to decide, in all the circumstances, what is necessary to prevent harassment. No maximum length of direction is set; again, it depends on what the constable believes to be necessary. I accept that those provisions are flexible—some may believe that they are too flexible—but given the wide variety of circumstances that has to be covered, specifying the time or distance precisely in law could lead unintentionally to difficulties and problems. The points that the hon. Members for North-East Hertfordshire and for Southwark, North and Bermondsey made about farms were an interesting illustration of that.

I turn to the question of how the direction is given. The clause specifies that it may be given orally. Subsection (3) states:

    ``A direction...may be given orally...where a constable is entitled to give a direction under this section''.

That does not exclude a video or a written record being made. Although it may be good practice for a written record be made at the time in order to avoid doubt, it would be best not to require in law that it should be done in writing. An oral direction would be satisfactory.

I have covered the points raised on new clause 6. I shall now give way to the hon. Member for Southwark, North and Bermondsey

Mr. Hughes: The Minister said that the cumulative triple lock may be sufficient. Does he not accept that, of itself, the first condition—the presence of someone seeking to persuade someone to do something or not to do something—is absolutely unexceptional and therefore perfectly lawful? It adds nothing. It is merely a fact, but it is not prejudicial, deleterious or harmful. It is a normal and proper activity. It is the second test that takes an action into the realms of criminality. The second test should have a decent threshold, and the threshold for the alarm and distress element should be minimal.

Mr. Clarke: I do not entirely accept what the hon. Gentleman says. I believe that what he calls the triple lock is a difficult set of tests to fulfil. The threshold is high, but it is not so high that it is impossible for a police officer to deal with in those circumstances. It would seriously inhibit anyone taking the action concerned. I accept that the hon. Gentleman has made his point constructively, and that he is not trying to be pernickety, but I stand by what I said earlier.

I spoke about deliveries of unwanted goods, a subject raised earlier by the hon. Member for North-East Hertfordshire in relation to new clause 7. They could be caught by the Malicious Communications Act 1988, but use of the Protection from Harassment Act 1997 may be the right approach. My hon. Friend the Member for South Thanet tabled amendment (a) to new clause 7. It was a positive amendment designed for clarification. In the great majority of cases when the threatened act would constitute a criminal offence, any arguments of reasonableness made by the defence would cut almost no ice in the courts.

I ask my hon. Friend not to press his amendment because it could over-complicate a trial. Such cases generally require proof of a mental element such as malicious intent, and the accused may argue in his defence that his actions were reasonable and proportionate. There would be no material benefits for justice if the court could not consider the reasonableness of the threat, but instead had to apply the law relevant to the reasonableness of the act that, if carried out, could be an offence.

We do not think that the amendment is wrongheaded or inappropriate, but it would make the process more difficult. I will carefully consider the Hansard report of my hon. Friend's introduction to the amendment, to see whether we can incorporate any aspect of it. Our initial view is that it would not help the process in the way in which he intends and wants.

Dr. Ladyman: I have discussed the matter with several lawyers. It would help me to understand the Government's view if I were given a practical example of a threat of an illegal act that is considered proportionate. I cannot think of one. Unless I can do so, I feel that the provision I have suggested should be in the legislation.

Mr. Clarke: I shall not attempt to give an example now, but I will think about the matter that my hon. Friend has raised and write to him about a case that could be complicated by his amendment. We have talked about the amendment outside the Committee, and I appreciate that he has wrestled hard to try to find a formulation to meet his goals more successfully. I was aware that he had discussed it with lawyer colleagues.

New clauses 14 and 15, which were tabled by the Opposition, would try to deal with the problem by adding a sanction to strengthen the Protection from Harassment Act 1997. Our provisional view is that they do not take us further than the law stands now. In practice, groups considering conspiracy would render themselves liable to prosecution under the 1997 Act in the course of making and checking the necessary arrangements.

The points made by the Opposition and my hon. Friends have force. I am prepared to consider carefully whether we can strengthen the Bill on Report with an amendment to plug the loophole. The loophole is the problem that people seek to address, but our initial view is that no such amendment can be made and that the assertions are not correct. We need to think carefully about the speeches made and examples given, to see whether we can return on Report with a clause that will close any holes in the system.

Mr. Hawkins: I am grateful to the Minister for what he said. Of course it is helpful that he will consider the matter. Given what the hon. Members for South Thanet and for Peterborough, my hon. Friend for North-East Hertfordshire and I have said, I am sure that the Minister appreciates the concern expressed by a number of organisations, especially the Research Defence Society. They firmly believe—and this has been reiterated by police officers at a senior level—that if different individuals repeatedly harass the same person, the current law and the Government's proposed changes to it would not apply. We—and, more importantly, those at the sharp end—think that there is a loophole to be closed.

6.30 pm

Mr. Clarke: I entirely understand that point, and it is correct that we should consider it. As I said, I am prepared to do so. I hope that, given my assurance that I will reconsider the matter and return to it on Report, the hon. Gentleman will be prepared not to press the new clause.

Mr. Hawkins: Unfortunately, although the Minister is being constructive, I will press this matter to a Division, because we think that recording a vote will be helpful and will concentrate minds. While making that clear in relation to new clause 14—we shall come to new clause 15 in a moment—I recognise and want to put on the record the fact that we appreciate that the Minister is trying to help.

Mr. Clarke: Having given way on that point, I must say that it is extraordinary to hear what the Opposition intend to do. The whole approach to the conduct of this Committee and other Committees on which I have served has been that if the Minister gives an assurance to consider the situation and return to it on Report, that is usually accepted. If the hon. Gentleman has decided—perhaps for politically partisan reasons along the lines of his opening remarks—that he wants political sharpness, of course he is entitled to do so, but let it stand on the record that I urge him not to press the new clause and ask my hon. Friends who are sympathetic to the points that have been made to resist it, on the basis of my specific assurance—which I do not think that I need to give again—that I am prepared to consider the matter and return to it on Report.

If I may say so, I am rather disappointed that the hon. Gentleman has decided to take that course, but with that I urge the Committee to vote for Government new clauses 6, 7 and 20, which have received general support, not to support amendment (a) to new clause 7—which is mistakenly printed on the selection list as Government new clause 7(a)—for the reasons that I have given, if my hon. Friend the Member for South Thanet decides to press it, to vote against new clauses 14, 15, and 19 if they are pressed, and to vote for Government amendments Nos. 176 and 243.

Mr. Hawkins: I do not want to confuse matters, but does what the Minister said about new clause 14 also incorporate his response to new clause 15? If he has wrapped the two together, that is fine, but I wanted to clarify whether he was going to say anything separate about new clause 15.

Mr. Clarke: What I said was in relation to both new clauses 14 and 15. We doubt whether there is merit in the clauses, but we think that the argument is seriously made and we want to reconsider whether either of them closes a loophole that we need to close. I give the assurance that I will do so seriously, with a view—after cross-party discussion if so desired—to tabling a new clause on Report.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 6 March 2001