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On a serious point, the orders in part 1 are insidious and will be dangerous in the wrong hands. I am not overstating the case. I hope that in Committee, the Government will see the good sense in many of the
arguments that have been put this evening and previously by concerned organisations. We cannot all be wrong.
Mr. Richard Benyon (Newbury) (Con): Much of what I was going to say has been said, so Members will be relieved to know that I will be blissfully brief. It is wise to treat any new Government law and order legislation with a degree of scepticism. We have heard already of the 3,000 or so offences that have come on to the statute book in the last 10 years, and of legislation such as the Criminal Justice Act 2003, of which large partsconstituting nearly a third, I believehave never been brought into force or repealed. It is time to say to the Government that the effectiveness of an anti-crime strategy should be measured not by how much legislation they pass and put on to the statute book, but by how effective that strategy is in convicting criminals, and by the perception and reality of crime in our communities and constituencies.
This is a very significant Bill that to an extent redefines the balance between giving new powers to the stateto the Executive, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) saidand the erosion of civil liberties. Let us be clear: the introduction of a civil order is a significant shift in power from the individual to the state. The chief concern of many is the eroding of civil liberties. It goes without saying that, like everyone in this House, I want to see serious criminals arrested, charged and convicted, but my worry is that if these orders become law, investigations into such criminals will go so far, and then the path of least resistance will be taken. Too often, the path of least resistance will be to apply to the High Court for a serious crime prevention order. The Government assure us that these orders are just another arrow in the quiver of their law enforcement provision. My concern is that instead of being an add-on, they will be used as an alternative to proper judicial process.
I am conscious that I am standing here surrounded by colleagues who are learned in the law, so I will be going down a difficult path in briefly examining the detail of the legalities of what the Government are trying to do. The Bill is still very loose in the parameters it sets. It contains a requirement that
a person has been involved in a serious crime,
which suggests to us, in line with a common law definition, that an individual has to have been convicted of a crime before such an order can be sought. However, we know that that is not the case. The Bill in fact says that
a person has been involved in a serious crime...if he...has committed a serious offence
has facilitated the commission by another person of a serious offence,
or, as my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) said earlier,
has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence,
whether or not such an offence has been committed. We do not know the precise meaning of the phrase
that was likely to facilitate the commission...of a serious offence.
That is a matter for the courts. It is clear that the legislation allows for circumstances where no crime has been, or is likely to be, committed.
There is a further worry regarding the intent of an individual and the possibility that they had no knowledge that they were operating in a way that facilitated a serious crime. I shall not go through the Bills definition of serious crimemy hon. and learned Friend the Member for Harborough has done sobut there are gradations of such offences, and some are more serious than others. I do not intend, either, to go into the salmon fishing, trout poaching scenario that the Minister talked about earlier, not least because I would probably have to declare an interest. However, we cannot be satisfied with the extent of that definition in the Bill.
It seems that the Government view law and order legislation as being roughly on the right track if it enrages the legal establishment. I do not consider the approval of organisations such as the Law Society and the Criminal Bar Association as always necessary, but it is at least desirable to have their seal of approval; after all, these people do know what they are talking about. If the Government had listened at an earlier stage to such organisations and to the Select Committee, there would have been less need for a whole raft of amendments in another place. I will not repeat what the Law Society said about this provision, but is worth getting on the record what the Criminal Bar Association said:
there can be no public policy that necessitates such a draconian course which rides roughshod over the legal principles upon which our criminal justice is based.
People are right to say that the use of a civil process to impose a criminal liability is criminal justice by the back door. There are already such provisions on the statute bookwe are starting to get used to this processalthough I am not seeking to repeal them or to trash them this evening. Company directors disqualification legislation, football banning orders and the Proceeds of Crime Act 2002 were all civil orders leading to a criminal liability; however, little of such legislation is on the scale of this Bill.
The role of civil process is to provide a mechanism for resolving private wrongs where the public element of the wrong is absent. These orders are introduced as civil injunction orders, which means that the Government are taking us down a much more treacherous path. They are predicated on the notion that at some time in the future, a person will commit an unspecified criminal offence and needs to be prevented from doing so. That is entirely different from someone actually committing an offence, or encouraging, assisting or inciting another to do so.
I want to touch briefly on the amendment in the House of Lords concerning gun crime, which the Minister swept aside as though it did not matter at all. The hon. Member for Taunton (Mr. Browne) and I are members of the Home Affairs Committee, and we have heard recent evidence about appalling situations in challenging communities where gun crime is an all too present danger. This is a really serious issue, yet the Minister swept it aside with a quote from the
Association of Chief Police Officers saying that such legislation is unnecessary. Initially, I was amazed to discover that the amendment by Lord Marlesford was necessary; I thought that a provision in law already existed enabling the searching of people for guns. The amendment is about using technology against gangs and groups of young people to search them for firearms, which is a sensible option. If the police were concerned about it, I would take that into consideration, but when Lord Marlesford proposed the amendment he said:
I particularly noted the enthusiasm of Assistant Commissioner Tariq Ghaffur of the Metropolitan Police, who has particular responsibility for safety on London streets.[ Official Report, House of Lords, 30 April 2007; Vol. 691, c. 918.]
I hope that the Minister will consider that point. I am prepared to accept that the amendment may require more safeguards, as it is only a short provision.
Despite grave concerns, I wish to give the Minister the opportunity to prove that the orders can operate without undermining our system of justice. It took 20 years to achieve the recent conviction of a Mr. Big, and I note that he was convicted, Al Capone style, of a fairly minor offence compared with some of the offences that people felt he might have been convicted of. We cannot treat this matter lightly, because there are some serious criminals out there whom we want to stop, and we must provide the police with all the means of doing that. But we cannot ride roughshod over the freedoms and liberties that have been fought for so hard and for so long.
Today, some of my constituents visited the Palace and, like many visitors, they commented on the small size of the Chamber. People are always surprised that it is so small. I always remind them that Winston Churchill used to refer to this place as a little room. He did not mean that pejoratively, but as a term of endearment. As he pointed out, this little room is the shrine to our liberties. He really understood that the liberties we guard in this place were hard fought for and should be protected. While we support any action that bears down on the most appalling criminals in our society, we do not do so at the expense of those liberties.
Robert Neill (Bromley and Chislehurst) (Con): Given the powerful and persuasive speeches made by Memberssolely on this side of the Chamber, I might observemy remarks will be brief, but seriously meant. It is often said that the road to hell is paved with good intentions, but so too is the road to authoritarianism. I use that word deliberately, because this Bill is an example of mission creep. Each individual proposal that appears reasonable in relation to criminal justice legislation runs the risk, even in a mature democracy, of going down that road. The Bill is another example of that.
It is also said that men can sit on the fence so long that the iron enters their soul. In the case of the Government, they have sat on those Benches so long that expediency has entered their soul. Expediency can also lead us towards authoritarianism, and I suspect that that is what underlies these proposals.
Before I became a Member of Parliament, I spent the better part of 30 years practising almost exclusively in
the criminal courts, defending and, in latter years, mostly prosecuting. Like some of my hon. and learned Friends, I dealt with serious criminal offences and I was conscious, when I presented a case on behalf of the prosecution, that if I were to secure the conviction of an individual I had to ensure that the case I made would be subject to a high burden of proof. I had to jump through certain hoops to prove the prosecution case. Those who investigated the casethe police officers and the Crown Prosecution Servicealso had to jump through various hoops to bring the case home. That was right and proper, because of the gravity of imposing a criminal sanction on someone, be they a minor criminal or a Mr. Big. That is a fundamental principle.
In the last few years I was in practice, I was concerned by the repeated complaint from experienced detectives involved in the investigation of serious crime that they were often obliged to curtail the extent of their investigations. As a prosecuting lawyer, I might suggest that they needed to obtain further information to tie up the loose ends, but they sometimes could not do so because of budgetary constraints. That is a real problem for police forces.
Against that background, my great fear is that instead of ensuring that a case is watertight and will end in a conviction, police officers and prosecuting officers will be tempted to look at this Bill and say, No, we will take the expedient route and use the civil sanction. It is because it is expedient that we should be very wary of it.
The specific points have already been well made by hon. Members in the course of the debate, but I accept that there are times when the use of the civil standard of proof can be appropriate in criminal proceedings. However, the key test is that those occasions should be exceptions to the rule and very specifically defined. Many of us will have been involved in confiscation proceedings, under the Proceeds of Crime Act 2002 and, before that, the drugs trafficking provisions. The point of those provisions is that they are specifically limited to kicking in only when there has been a criminal conviction to the proper, high standard. That is a very different scenario from the pre-emptive measure envisaged in the Bill. It is the lack of specificity that is a real flaw in part 1.
That view is shared by many outside organisations, especially Justice, which is no mere local lobby group. It is the UK section of the International Commission of Jurists and speaks with some authority. I would be saddened if our criminal justice system, which is often held up as a beacon, were to become tarnished in the eyes of the international legal community.
Of particular concern, as has already been mentioned, are the definitions in clause 3. It expressly removes the requirement that a person must have actually intended to facilitate a serious criminal offence or even to believe that his actions would do so. There is an interesting contrast between the vagueness of the definitions in part 1 and the much more specific definitions in part 2, which follows on from the Law Commissions proposals and is altogether more useful.
Justice points out that any number of third parties could be caught by clause 3 as unwittingly facilitating the commission of a serious offence. For example, is the
taxi driver who drives passengers to a destination where they carry out a serious offence facilitating that offence? If a computer retailer sells equipment to someone who uses it for drug dealing or human trafficking, would he be caught by the provision? If a landlord rents premises to a tenant who uses them for the manufacture and storage of drugs, would he be caught? That will be a risk for businesses, especially those that have no legal obligationor indeed rightto inquire about the use of otherwise legitimate equipment. It is also a risk for the small person, who may not sensibly be in a position to make such inquiries.
It may be argued that the definitions in clause 5 will oblige the court to disregard activity that the defendant shows to be reasonable, but that is pretty vague. Moreover, that in effect puts the defendant in the frame, according to the civil standard of prooflike the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), I am not at all satisfied that such matters will be dealt with according to the criminal standardand the result is that a reverse burden of proof is placed on the defendant who chooses to assert his innocence and demonstrate that what he did was reasonable.
That is wholly unacceptable. The scope of the provision is too wide, and Justice has pointed out that it mixes ASBOs with some aspects of control orders issued under the prevention of terrorism Act. The UK courts have found that ASBOs are civil rather than criminal in character, but the status of control orders has not yet been fully determined. The House of Lords has yet to decide the matter, and it seems inappropriate for the Government to be creating the sort of hybrid that I have described while we still await clarity in respect of control orders from the highest court in the land. That determination may very well affect the interpretation of the orders proposed in the Bill.
As has been observed, the Government domesticated the European convention on human rights in our law, and most informed observers consider that it is most uncertain that the European Court of Human Rights will agree that SCPOs are civil in character. Indeed, there are some doubts about whether it considers ASBOs to be civil in character, but the proposed orders are more draconian and so are more likely to be regarded as criminal.
The Government are going down a most dangerous route with this Bill, and we must be very wary. I know that the fact that the Opposition do not intend to vote against the Bill will not be taken as an indication that we believe that all is well with it. The Minister said that we should look in Committee at the use of intercept evidence, and the Bills proposals in that respect are good. My experience leads me to believe that they are worthy of sensible consideration, but I hope that he will be open minded about the much more troubling elements of part 1. We need to examine them very carefully before we commit ourselves to anything.
James Brokenshire (Hornchurch) (Con): There is little doubt that the threat to this country from organised crime remains high. In its annual plan for 2007-08, SOCA notes that broad estimates put the economic and social costs of serious organised crime, including the costs of combating it, at more than £20 billion a year.
Increasingly, serious organised criminals have exploited advances in technology to develop new crimes and to transform older ones. A recent report for ACPOs economic crime portfolio on the nature, extent and economic impact of fraud in the UK said that the known costs of fraud, and of dealing with it, amounted to at least £13.9 billion in 2005, and possibly more. Of that, fraud against private individuals amounted to £2.75 billion, and public sector fraud losses were estimated at £6.34 billion.
Against that backdrop, it is right that we examine carefully the powers available to law enforcement agencies, and the measures intended to assist in the fight against serious and organised crime. However, todays debate has highlighted starkly the questions of whether the powers proposed in the Bill are appropriate, proportionate and reasonable, and whether they will achieve the Home Secretarys stated desire when he set the measures out. Then, he said that he wanted
to bear down on the people actively engaged in organised criminal activity in the UK
help bring them to justice faster and more effectively.
Todays debate has raised some considerable doubts about that. Particular questions have been asked about whether the Bill will make a difference, as well as about its scope and proportionality. It is a pity that no Government Back Benchers thought the issue serious enough to merit making a contribution to the debate.
Many of the comments made in the debate centred on part 1 of the Bill, and the proposal for SCPOs. In his extraordinarily powerful speech, my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) highlighted many serious concerns about the import of the Bill, including what he described as the bypassing of the criminal justice system. He also asked whether the Bill was aimed at the Mr. Bigs, or the peripheral players on the outside.
My hon. and learned Friend the Member for Torridge and West Devon also examined the fundamental issue of the burden of proof and the need for jury trial, and asked whether paper evidence would be submitted before a criminal trial that might have an impact on subsequent criminal proceedings.
My hon. and learned Friend the Member for Harborough (Mr. Garnier) highlighted the legislative fatigue suffered by the House, and said that 34 Bills had been repealed, repealed in part or not fully implemented. That point was also made by the Opposition Front-Bench spokesman, my hon. Friend the hon. Member for Arundel and South Downs (Nick Herbert), and by the hon. Member for Taunton (Mr. Browne), who speaks for the Liberal Democrats.
My hon. and learned Friend the Member for Harborough also looked at the definition of serious crime and the potential extension by order of the list of offences. He suggested that the definition of the extent and scope of serious crime, which the Opposition will contest, offered some certainty, but I wish the matter was that simple. I draw his attention to clause 2(2), which states that the court itself will be able to determine whether something is
sufficiently serious to be treated for the purposes of an application
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