Clause
2
Involvement
in serious crime: England and Wales
orders
Mr.
Hogg:
I beg to move amendment No. 54, in
clause 2, page 2, line 22, leave
out ‘a serious’ and insert
‘an’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 55, in
clause 2, page 2, line 22, at
end insert
‘in respect
of which he has been sentenced to an immediate term of imprisonment of
not less than seven
years’.
No. 59,
in
clause 2, page 2, line 24, after
‘Wales’, insert
‘in respect of which that person
has been sentenced to an immediate term of imprisonment of not less
than seven
years’.
No. 61,
in
clause 2, page 2, line 26, leave
out ‘a serious’ and insert
‘an’.
No.
62, in
clause 2, page 2, line 27, at
end insert
‘in respect
of which a court would be entitled to impose an immediate term of
imprisonment of not less than seven years or a mandatory or
discretionary life
sentence’.
No.
56, in
clause 2, page 2, line 27, at
end insert—
‘(1A) For the
purposes of subsection (1) an immediate term of imprisonment of not
less than seven years shall
include—
(a) a mandatory
life sentence; and
(b) a
discretionary life sentence and a sentence for imprisonment for public
protection in respect of which the court has specified that a period of
seven years shall have expired before the case is considered by the
Parole
Board.’.
No.
63, in
clause 2, page 2, line 28, leave
out subsection
(2).
No. 64, in
clause 2, page 2, line 36, leave
out subsection
(3).
No. 65, in
clause 2, page 2, line 44, leave
out subsection
(4).
No. 67, in
clause 2, page 3, line 1, leave
out ‘a serious’ and insert
‘an’.
No.
68, in
clause 2, page 3, line 2, at
end insert
‘in respect
of which he has been sentenced to an immediate term of
imprisonment—
(i) of not less than
seven years, or
(ii) for an
indeterminate period in respect of which he is ordered to serve a
period of not less than seven years in
custody.’.
No.
69, in
clause 2, page 3, line 4, after
‘Wales’, insert
‘in respect of which he
has been sentenced to an immediate term of
imprisonment—
(i) of not less than
seven years, or
(ii) for an
indeterminate period in respect of which he is ordered to serve a
period of not less than seven years in
custody.’.
No. 137, in
clause 2, page 3, line 8, at
end insert
‘in respect
of which a court would have been entitled to impose an immediate
sentence of imprisonment of not less than seven years or a mandatory or
discretionary life
sentence’.
No.
70, in
clause 2, page 3, line 9, leave
out subsection
(5).
No. 151, in
clause 2, page 3, line 23, leave
out subsection
(6).
No. 71, in
clause 2, page 3, line 26, leave
out subsection
(7).
No. 73, in
clause 3, page 3, line 32, leave
out ‘a serious’ and insert
‘an’.
No.
74, in
clause 3, page 3, line 32, at
end insert
‘in respect
of which he has been sentenced to an immediate term of imprisonment of
not less than seven years and to whom section 2(1A) of this Act
applies’.
No.
75, in
clause 3, page 3, line 33, leave
out ‘a serious’ and insert
‘an’.
No.
76, in
clause 3, page 3, line 34, after
‘Ireland’, insert
‘in respect of which that person
has been sentenced to an immediate term of imprisonment of not less
than seven years and to whom section 2(1A) of this Act
applies’.
No.
77, in
clause 3, page 3, line 36, leave
out ‘a serious’ and insert
‘an’.
No.
78, in
clause 3, page 3, line 37, leave
out ‘(whether or not such an offence was committed)’ and
insert
‘in respect of
which that person has been sentenced to an immediate term of
imprisonment of not less than seven years and to whom section 2(1A) of
this Act
applies.’.
No.
80, in
clause 3, page 3, line 38, leave
out subsection
(2).
No. 82, in
clause 3, page 4, line 8, leave
out ‘a serious’ and insert
‘an’.
No.
83, in
clause 3, page 4, line 8, at
end insert
‘in respect
of which he has been sentenced
to—
(i) an immediate term of
imprisonment of not less than seven years,
or
(ii) a mandatory or
discretionary life
sentence
and, in respect of an
offence committed in England and Wales, section 2(1A) of this Act
applies.’.
No.
84, in
clause 3, page 4, line 10, after
‘Ireland’, insert
‘in respect of which he has been
sentenced to—
(iii) an immediate
term of imprisonment of not less than seven years,
or
(iv) a mandatory or
discretionary life
sentence
and, in respect of an
offence committed in England and Wales, section 2(1A) of this Act
applies.’.
No.
85, in
clause 3, page 4, line 12, leave
out ‘a serious’ and insert
‘an’.
No.
86, in
clause 3, page 4, line 13, leave
out ‘(whether or not such an offence was committed)’ and
insert
‘in respect of
which that person has been sentenced
to—
(v) an immediate term of
imprisonment of not less than seven years,
or
(vi) a mandatory or
discretionary life
sentence
and, in respect of an
offence committed in England and Wales, section 2(1A) of this Act
applies.’.
No. 116, in
clause 20, page 12, line 19, leave
out paragraph (a).
No.
117, in
clause 20, page 12, line 23, leave
out ‘a serious’ and insert
‘an’.
No.
118, in
clause 20, page 12, line 23, at
end insert
‘in respect
of which has been sentenced to an immediate term of imprisonment of not
less than seven years and to whom section 1(ab) of this Act
applies’.
No.
122, in
clause 21, page 13, line 7, leave
out ‘a serious’ and insert
‘an’.
No.
123, in
clause 21, page 13, line 10, leave
out ‘a serious’ and insert
‘an’.
Mr.
Hogg:
The amendments all stand in my name, and I straight
away acknowledge that their purpose is to change the architecture of
the Bill. I have tried to change the definition of a serious offence.
As the Committee will appreciate, a serious offence is defined in
schedule 1 to the Bill. It is, incidentally, an amendable schedule.
That is, the Secretary of State can amend the contents of schedule 1 to
delete or for that matter include items. I think that the clause is at
the heart of the debate. Although the phrase “a serious
offence” sounds weighty, the schedule shows that many of the
offences are hardly of a character to qualify for the draconian orders
that the Committee is
considering.
It would
be possible for me to go on at great length, but you would accuse me of
filibustering, Mr. Bercow. I could read out the whole
schedule, but I am not going to do so. I shall identify some matters,
and I make the point that because I am not going to read out the whole
schedule, I do not want to hear the Government Whip say later that we
are taking too much time. I could take a lot more time if I wanted to,
and it may be helpful to keep that in
mind.—[
Interruption.
]
12.15
pm
Mr.
Hogg:
The Whip has no authority over me, as he realised
many years ago. He and I have a good relationship, but it is an
arm’s length
one.
It is worth
reminding ourselves of what falls within schedule 1.
“Prostitution and child sex” fall within it, and while I
am willing to accept that child sex is a serious matter, I am not sure
that
“keeping a brothel
used for
prostitution”
is. I am
not sure that
“causing
or inciting prostitution for gain”
or “controlling prostitution for
gain” are serious offences. I am not sure that “obtaining
services dishonestly” or
“acting as a gangmaster other than
under the authority of a licence, possession of false documents,
etc.”
are serious
offences. I am not sure that
“making, importing or distributing
an illicit recording”
is
a serious offence—ditto,
“making, importing or distributing
an illicit
recording”
and
“making
or dealing...in unauthorised
decoders”
and
an
“offence under section
1 of the Salmon and Freshwater Fisheries Act 1975...(fishing for
salmon, trout or freshwater fish with prohibited
implements”.
I have no
doubt that in the eyes of my noble Friend Lord Kimball they would be
serious offences, but different views can be legitimately
held.
Is
“An
offence under section 14 of the Wildlife and Countryside Act
1981...(introduction of new species)”
a serious offence?
Is
“prohibition on
unauthorised or harmful deposit, treatment or disposal...of
waste”
a serious offence?
Is the
“purchase and
sale...of endangered species and provision of false statements and
certificates”
a serious
offence?
My point is
that anyone looking at the schedule will be struck by the fact that it
is a rag-bag of offences, some of which are grave and some not, but all
are classified as serious offences, in respect of which a serious crime
prevention order can be made. That is deeply offensive, because it is
not just that a person could be convicted of those offences and give
rise to the making of an order, but that that person could be
facilitating another person at arm’s length from the unlawful
fishing, and I suppose that an order would apply to the person who
sends the unlawful instrument to the fisherman, and so on. It is not
right.
What should we
do? Let us assume for a moment—this is a big
assumption—that we should go down the road of having a serious
crime prevention order. We should try to define what we mean by a
“serious crime” that attracts such an order. I do not
believe that it is possible to do that by categorisation without
exposure to ridicule, which is what the Government have done. Better by
far is to look at sentences, because they are a mark of whether an
offence is serious. The court will have considered all the facts and
come to a view, and the sentence will reflect the court’s view
of the gravity of the
offence.
I have
selected as my criterion an immediate term of imprisonment of seven
years, but I do not suggest for a moment that that should be writ in
concrete. The Government might not like seven years, and might suggest
five or 10 years. I would not quarrel with that, and that might be a
sensible way forward, but we should not try to categorise offences. We
should determine whether an offence is serious by reason of the penalty
that it attracts. That is a much better way of determining whether
something is truly serious and of a quality to attract an
order.
One technical
point which the Committee will have observed is that we also have to
deal with life sentences and what are known as IPPs—imprisonment
for public protection. As the Committee will know, the courts now have
extended powers to impose extended sentences and life sentences. This
has to be addressed and as the technical way forward I suggest that the
seven-year test should be incorporated as being relevant to the period
at which point the parole board can safely consider whether the person
can be safely released. This matter is not set in concrete—one
could have five or 10 years. It is a matter for debate. What I do think
is wrong is the categorisation.
Mr.
Browne:
I am seeking clarification. Would the right hon.
and learned Gentleman explain to the Committee what would happen if two
people, perhaps from different parts of the country, had committed the
same offence but in the first case the person had been sentenced to six
years’ imprisonment and in the second case the person had been
sentenced to eight years’ imprisonment? Would this mean that,
even though the offence was identical, in one case it was regarded as
serious and in the other case it was not?
Mr.
Hogg:
It is unlikely to arise in this sense: if they were
co-defendants in one trouble, of course the judge would have regard to
the impact—I take the hon. Gentleman’s point. If they
were co-defendants convicted for precisely the same offence the judge
could determine whether it was just. If they were not convicted on the
same indictment or in separate trials then one must not assume that the
offences are the same because the degree of culpability within a
particular offence can vary substantially.
None the less, the same point
is also raised under the existing Bill. Under the existing Bill the
fact that something is a schedule offence only triggers the ability to
make the order; it does not require the making of the order. It is
possible to have precisely the same situation arising on the existing
Bill as on my suggested reshaping of the architecture.
I do not therefore think that
there is anything fundamentally difficult about this. We obviously
could get orders made that are differential, I accept that, but I do
not think that goes to the heart of the
matter.
Ian
Lucas:
Does the right hon. and learned Gentleman accept
that a sentence and the length of a sentence necessarily reflects not
the offence but the individual who is sentenced by the court? It is
perfectly possible, therefore, for an identical offence to be committed
by two individuals and for them to receive two different sentences
before the same court.
Mr.
Hogg:
Of course, a sentence reflects a number of things.
As a general rule, Parliament only applies maximum sentences. There are
mandatory sentences, particularly for murder and some other crimes, but
it is very rare. When a court imposes a sentence it is doing at least
three things. First, it is addressing the offence itself—the
offence on which the person is charged. Secondly, it is addressing the
question of the culpability of that particular individual. Thirdly, it
could also be considering public protection. I am sure that I could
think of other considerations that come into play when a court is
concluding a sentence. For the same offence, however, there are often
quite different sentences reflecting differing degrees of culpability,
differing backgrounds of individual offenders and actually within the
same offence differences as to mode and conduct. So of course there are
different penalties.
Ian
Lucas:
Is the right hon. and learned Gentleman now
undermining the essence of the argument that he is advancing by relying
on the sentence imposed by the court?
Mr.
Hogg:
No, because we come back to this basic point, which
is that we are providing for a very
draconian order. I do not think anybody can seriously dispute that.
Given that we are going down this road at all, the question is how to
define that class of offence which should trigger such a draconian
power. We have to bear it in mind that it relates not only to offences
that the person who is to be the subject of the order has committed,
but offences that he has not committed but may have facilitated a third
party to commit.
I
accept that there are two choices. We could try to categorise offences
in a schedule that is amendable—I dislike that intensely. Or we
could let the court decide what is truly serious. The way that a court
decides what is truly serious, generally speaking, is by reference to
the sentence. If I have to go down this road, which I very much dislike
because I dislike part 1 of the Bill intensely, I would very much
rather use the sentence imposed by the court as a criterion than
anything else. That is not to say that that situation is perfect, but I
am against the Bill anyway, and I am trying to improve a bad Bill. I am
sure that using the categorisation is wrong. I am perfectly prepared to
listen to alternative arguments about the length of sentence, because
the sentence is a better way forward.
Mr.
Coaker:
I thank the right hon. and learned Gentleman for
the way in which he made his points. I shall pick him up on a couple of
them, but I say to the Committee that it is easy to try to undermine
the whole schedule by pointing to one or two aspects that, taken out of
context, we do not regard as serious crime. The right hon. and learned
Gentleman mentioned fishing for or poaching the odd salmon here and
there. Although it is an easy debating point to make, none of us would
expect a judge in the High Court to impose a serious crime prevention
order on somebody poaching one trout or
salmon.
Mr.
Coaker:
Or a red herring.
It is important to put that
point to the Committee. Points of debate are one thing, but using them
to try to trivialise the schedule is another. I cannot conceive of a
situation in which the High Court would act in the way that was
suggested. Since environmental crime was pointed out, many of our
constituents and, indeed, many people in the country would think that
the type of environmental crime that the schedule refers to is an
extremely important crime which should be regarded as serious; and
given the increasing importance of environmental issues, many people
would wonder why it had not been included in the schedule.
Although the right hon. and
learned Gentleman mentioned that some Lords had pointed to small-scale
poaching, other Lords pointed out the serious nature of organised
poaching. I think it was Lord Dear—I apologise if I am
incorrect—who referred to an incident in which explosives had
been used to reach a number of salmon or trout. He regarded it as very
serious, and he was right. We all agree on the inclusion of offences
such as arms and drugs trafficking, which are easy examples. There are
other offences through
which people seek to ridicule the schedule, but on a moment’s
proper reflection, they are properly and appropriately
included. The
amendments would be made to the definition of a serious offence for the
purposes of this part of the Bill. We will return to the issue later
when we discuss schedule 1 in more detail, but perhaps it would be
helpful to discuss the concept of a schedule approach now, and the
specific content when we discuss the proposed amendments to the
schedule. I do not propose to refer directly to each amendment; I hope
that the Committee will find it more useful if I talk to the broad
principles in question.
12.30 pm
First, the amendments would
change the approach in the Bill and replace it with one based on a
tariff of seven years. I ask the Committee to resist the amendments. It
will help if I explain why the Bill is drafted as it is. Those who
commit serious crime do not and will not limit themselves to a certain
set of crimes because we set out what that list should be in this
House. We need to be realistic; serious criminals are intelligent and
adaptable people who see themselves as business men—and
successful business men diversify when necessary.
If anyone here can produce with
absolute certainty an exhaustive list of the crimes that such criminals
commit, or will commit in future, I am sure that we would all be
pleased, but unfortunately that is simply not possible. Let me reassure
the Committee that we do not mean to provide that the orders should be
available against any criminal or on the basis of any crime. That is
not the Government’s intention and would not fit with the
targeted and intelligence-led type of law enforcement that the orders
are designed to
support.
As a result,
we have provided a schedule of offences to show the large majority of
the offences in relation to which the use of the orders would be
appropriate. Furthermore, we have provided within the framework of the
schedule a discretion for the court to treat an offence as serious if,
in the circumstances of the case before it—circumstances that we
cannot know or foresee—it considers the offence serious enough
to be treated as if it had been specified in the
schedule.
The issue
has generated discussion and debate, but it is extremely important that
we do not fetter the discretion of the court. If we did, the court
might not in future be able to impose a serious crime prevention order
for an unspecified serious crime because it would not have that
discretion. It is entirely appropriate that we say to the court,
“If you think something is serious enough for a serious crime
prevention order, you have the power to treat it as
such.”
We shall
come to the latter point shortly. However, schedule 1 provides a strong
guideline for the level of offence that we are talking about. No matter
what the circumstances, no High Court judge will think that littering,
shoplifting or the taking of an individual trout from a stream are so
serious that they should be treated as if specified in the schedule. I
simply do not believe that, and no member of this Committee does
either.
We also
consider that the alternative approach, suggested by the right hon. and
learned Gentleman in
the amendments, is too much of a blunt instrument. We wish to maintain
flexibility, but also to ensure that the Bill is targeted at offences
committed by serious career criminals. In the Bill, the meaning of
“serious offence” is more subtle than the level of
punishment that it attracts. The Bill focuses on offences most likely
to be committed by organised criminal networks. That primarily means
offences that can be committed on a large scale for a large
profit.
Amendment
No. 116 would delete clause 20(1)(a), which allows the Crown court to
make an order in respect of a case that has been committed to it from a
magistrates court. It is appropriate for the Crown court to have powers
in such circumstances for two reasons. First, the definition of a
serious offence would be the same; the behaviour under consideration
would not be lower level simply because the conviction was given by
magistrates. Secondly, the case would be serious; when magistrates
courts decide that their sentencing powers are inadequate for the
seriousness of a case before them, they commit it to the Crown court.
Given my comments, I hope that the right hon. and learned Gentleman
will withdraw the
amendment.
Mr.
Hogg:
No, I will not withdraw the amendment, although I
may not get as much support as I would like. No matter—I am used
to standing alone and do not care about it. We should come back to the
basic point: we are dealing with very serious orders. I do not believe
that we should expose people to such orders unless their conduct is
truly serious. I do not think that categorisation is the best way
forward for the reasons that I have given. I think that a sentence
imposed by a court is probably the best assessment of the gravity of an
offence that could be constructed. I am not dogmatic about the seven
years. I would be prepared to compromise on that, but not on the
general approach set out in the
amendments.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 1, Noes
9.
Division
No.
4
]
Question
accordingly negatived.
Mr.
Hogg:
I beg to move amendment No. 57, in
clause 2, page 2, line 23, leave
out paragraphs (b) and
(c).
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 58, in
clause 2, page 2, line 23, after
‘has’, insert ‘knowingly and
intentionally’.
No.
3, in
clause 2, page 2, line 25, after
‘has’, insert
‘conducted himself in a way that
was unreasonable in the circumstances and, by doing so,
has’.
No. 60, in
clause 2, page 2, line 25, after
‘has’, insert ‘knowingly and
intentionally’.
No.
66, in
clause 2, page 2, line 45, at
end insert ‘knowingly and
intentionally’.
No.
79, in
clause 2, page 2, line 38, after
‘the’, insert ‘knowing and
intentional’.
No.
72, in
clause 3, page 3, line 31, at
end insert ‘knowingly and
intentionally’.
No.
81, in
clause 3, page 4, line 7, at
end insert ‘knowingly and
intentionally’.
Mr.
Hogg:
All the amendments, except amendment No. 3, are in
my name. The Committee will have seen that I am not a team player. I do
not like teams—or playing, for that matter. I hope that I can
persuade my hon. Friends to do a little better on the next group of
amendments. They will have plenty of opportunity during the course of
the Committee to rally behind my amendments; I can tell them that
now.
Let us return to
the purpose of the amendments. I shall not continue to emphasise in
detail how grave the orders are, but we need to remind ourselves at
every stage that we are talking about serious consequences for
individuals. What I am trying to do in this group of amendments is
twofold. I want to confine the impact of the orders to those who have
in fact committed an offence known to the law—in other words, to
exclude the facilitator from the ambit of the order-making powers. Many
amendments have been tabled, and I could identify clearly the effect of
each, but I do not suppose that you would want me to do that,
Mr. Bercow. It might be called filibustering, and I do not
want the Government Whip to get uneasy about these matters; otherwise,
I would go on longer and longer. [Interruption.] I am very glad
to hear that.
The
first thing that I want to do is confine the impact of the orders to
those who have committed offences. However, if I cannot achieve that
highly desirable objective, I want to incorporate the concept of what
lawyers call mens rea into the facilitation offence. Unless I have
overlooked some part of the Bill, the facilitation offence is one of
strict liability. There is no requirement for intent or, indeed, for
knowledge, which I do not believe is fair. It is all right to say that
they are not criminal orders but civil powers. So they are! But they
could have the most appalling consequences—the sorts of
consequences that I do not think should be visited on people who do not
have the knowledge or required intent.
I have tried to confine the
impact of the orders, therefore, as far as the facilitators are
concerned, to those in respect of whom it can be established that they
acted “knowingly and intentionally”. I suggest that that
is in accordance with the basic principles of natural
justice.
Jeremy
Wright:
I take this opportunity, rather belatedly, to
welcome you to the Chair, Mr.
Bercow.
I support my
right hon. and learned Friend’s amendments, which would add the
words “knowingly and intentionally” to the clause,
because, like him, I think that in relation to these very serious
matters and the serious consequences that can be visited on an
individual who is made subject to a serious crime
prevention order, it is vital that it is made perfectly clear that an
individual could not find himself in such a position without knowing
what he was doing and intentionally causing the harm that the
Government seek to avoid. It seems probable that if the clause is left
as it is, there will be cases in which someone finds themselves subject
to an order accidentally, without having intended to do anything
wrong. I return,
without apology, to the explanatory notes. We must remember that those
notes constitute the Government’s assistance to us all in
understanding what the Bill is intended to achieve. Paragraph 26 on
page 6 states
clearly:
“This
means that it does not matter if the respondent did not, for example,
intend to facilitate the commission of a serious offence, or had no
knowledge that he was conducting himself in a way that was likely to
facilitate serious
crime.”
If someone has
not done so intentionally or knowingly, it is unacceptable that they
should be subject to the types of restriction involved, which are, as
we have discussed before and will no doubt discuss again, completely
analogous to punishment in other
contexts.
One has only
to consider, in the context of serious financial crime, the position of
accountants who may be doing things at the behest of their clients and
who end up facilitating one of the offences without intending to or
knowingly doing so. On that basis, I support the amendments tabled by
my right hon. and learned
Friend.
Nick
Herbert:
I apologise to you, Mr. Bercow,
because I did not welcome you to the Chair either and I certainly do
welcome you. What is more, I admire the way in which you ruled the
Committee with such firmness early on in its
proceedings.
Nick
Herbert:
Indeed, you could say that I am grateful for
it.
Mr.
Hogg:
You are trespassing. I
think—
Nick
Herbert:
I support my right hon. and learned
Friend’s amendments, particularly amendment No. 57, for all the
reasons that my hon. Friend the Member for Rugby and Kenilworth set
out. It seems wrong to me, too, that it is possible for someone to be
subject to a serious crime prevention order without having intended the
conduct that would make him liable for it, particularly when there is a
reverse burden of proof placed on him to show that his actions were
reasonable. We referred to that early
on.
I see no reason
why the proposal should add a significant evidential burden to the
operation of serious crime prevention orders. They are so wide in their
potential effect. The Government explicitly said in their explanations
of how the orders would operate that the type of activity that they
might catch is, for instance, the supply of vehicles with compartments
that could be used for the running of drugs and so on.
It is important that some safeguard is built in that would make it clear
that the provision cannot catch that type of activity unless it can be
shown that the person intended that activity to take place. That would
be a very important safeguard, given the wide ambit of the potential
restrictions on people’s liberty and the serious penalties that
could attach to breach of those restrictions, particularly as no
offence needs to have been committed by the person concerned, as we
have all observed. Indeed, under the terms of the clause, people could
be caught for tangential involvement with offences. I hope that the
Minister will view the amendment sympathetically or explain why a
simple evidential test like this one should not be
included. 12.45
pm
Mr.
Browne:
I shall be brief. I tabled amendment No.
3, the purpose of which is to require the prosecuting authority to
establish that a person was acting unreasonably, thereby reversing the
burden of proof in the Bill. Following on from the two brief speeches
that have just been made, I shall be interested to hear from the
Minister precisely how this part of the Bill will work in
practice.
Am I right
in believing that were I to lend someone a fishing rod and he then
fished illegally and caught salmon, I would fall foul of this part of
the Bill? As I understand clause 2(1)(c), if I were to open a fishing
shop within walking distance of a lake that contained salmon, I would
have to be certain that someone who came into my shop to buy a fishing
rod did not intend to use it for illegal purposes, even if I could not
be certain one way or the other of their
intention.
Earlier,
the Minister said that the salmon and trout were red herrings, but that
slightly begs the question of why the provision is in the Bill if it is
so easy to ridicule. One could make examples of this sort right across
the piece; for example, would taxi drivers who take people to the scene
of a crime, knowingly but perhaps unwittingly, fall foul of the
sanctions as well? I would be grateful if the Minister could address
those specific
points.
Mr.
Coaker:
I shall deal now with one of the points that the
hon. Gentleman made, although I will return to it later in my remarks.
Someone in a fishing tackle shop who sells a rod to someone who then
goes off and poaches would not be subject to a serious crime prevention
order. But if somebody asked the person in the fishing shop whether
they knew that lots of people were coming to the shop to buy rods and
then going off to poach salmon, but no action was taken, or if the shop
sold some sort of material that was then used for something that could
be regarded as serious, a crime would have been facilitated, and an
order may be appropriate. However, the shop owner could just be selling
stuff that he expected to be used appropriately and normally. I shall
deal with that in my later
remarks.
Someone may
buy a computer and then use it for criminal purposes, but the person
who sold the computer facilitated a crime without realising it. The
problem comes when somebody is told, but refuses to take any action as
a consequence of being told.
Mr.
Hogg:
I am listening to what the Minister is saying, but I
am not sure that he is right. Facilitation does not carry within it, by
itself, the concepts of intent or knowledge. It is an act. It is strict
liability. Facilitation itself, if it is to be in the Bill by itself,
is a strict
offence.
Mr.
Coaker:
My understanding of the situation is that in civil
proceedings, as these would be, what I am saying would be right. We
used the example of somebody who sells a computer or fishing tackle
that is then used without their knowledge for something else. An order
would not be appropriate for them. However, even though they did not
know and had no understanding of what was taking place, if they were
told what the equipment was being used for but still carried on, they
might be subject to a serious crime prevention
order.
Mr.
Browne:
I am still unclear on that. Let us say that I run
a kitchen utensils shop and I sell—among a range of
items—knives. At what point would I become culpable for aiding
and abetting or facilitating the committing of grievous bodily harm
through knife crime? Is it the point when someone comes in and says,
“You know those kitchen knives that you are selling, well most
people use them to make tasty meals, but one or two people come in and
buy them as weapons”? How many people have to come in and tell
me that some people use them as weapons for me to be found to be
facilitating a crime by not closing my
shop?
Mr.
Coaker:
Let us say that the court or one of the applicant
authorities were to try to impose a serious crime prevention order on
someone like the kitchen shop owner who sells one or two knives. I do
not believe that that would actually happen. All sorts of examples
could be made up in relation to the hon. Gentleman’s point that
would just not happen in the real world. Let us say that somebody says,
“Do you know that those knives are being used to kill
people?” Let us then say that the kitchen shop owner carries on
selling those knives and the applicant authority believes that it
should put a serious crime prevention order on them. The kitchen shop
owner who is selling the knives will then have the opportunity to
demonstrate to the court that they have acted reasonably. If they can
do so, they will not be the subject of a serious crime prevention
order.
As I say,
examples can be made up and the one that I used was the fishing shop
owner. Let us say that somebody is unknowingly facilitating serious
crime through the selling of equipment and that comes to the notice of
somebody who says to them, “Do you know that the selling of that
equipment from your shop, business or premises is facilitating serious
crime?” If the person says that they do not know anything about
it and it is nothing to do with them, and they carry on selling the
equipment, they may then become the subject of a serious crime
prevention order.
The
important point is that the person on whom the applicant authorities
are trying to impose a serious crime prevention order has the
opportunity in court to demonstrate that their behaviour was
reasonable. If they can do that, they will not become the subject of a
serious crime prevention order.
Mr.
Browne:
Does not that get to the nub of the issue and
combine the point made by the right hon. and learned Member for
Sleaford and North Hykeham with the point that I was trying to make in
amendment No.3?
Let
us settle on the example of the fishing rod shop owner and pretend that
I own a fishing rod shop that is in an area where there are lots of
lakes and rivers for fishing, where it would be an obvious commercial
decision to open a shop. There are likely to be people in the immediate
vicinity who come into my shop to buy a fishing rod and fish nearby. I
cannot be certain how the fishing rods are used and whether they are
used properly or improperly. If somebody walks into the shop and tells
me that one of the fishing rods bought in my shop is being used to fish
illegally for trout, under the Government’s model, I have to
prove in court that I have done nothing wrong, rather than the court
proving that I have. Can the Minister not understand why that is of
concern to
us?
Mr.
Coaker:
It goes to the heart of the hon.
Gentleman’s amendment about reasonableness and unreasonableness
and who should have to prove that. On the point that he makes, let me
take him again through the process as I see it, which I hope will
clarify the matter—even if he does not agree with my point. If
he sells equipment from his shop, whether it is a computer or fishing
tackle shop, that is used for serious crime—let us leave aside
somebody just taking one fish—as the court would define it, he
facilitated that crime without knowing or intending it; he sold the
equipment and the crime happened. He sold the computers and people used
them for the purposes of committing serious
crime.
If, however, a
law enforcement agency or somebody were to go to him and ask,
“Do you know that the computers that you are selling to this
business, or the fishing equipment that you are selling to these
individuals, are being used for serious crime?” and he were to
say, “Well, I’ve got no intention of it being used for
serious crime. I’m just a person selling fishing tackle,”
or, “I’m just a person selling computers. What I am
expected to do about it?” he might be subject to a serious crime
prevention order. The applicant authority would then say to the
prosecuting authority, “We believe that this person should be
made the subject of a serious crime prevention order. They are
facilitating a crime. We have told them so and they have said,
‘What’s it got to do with me? I’m just conducting
my business.’ Yet they are facilitating crime by the nature of
their
business.”
I
suspect that the hon. Gentleman would believe that it is perfectly
reasonable for somebody in law enforcement to go to a business and ask,
“Do you realise what is going on with the goods that you are
selling?” I think that he would expect a proper, legitimate,
upstanding business person who was told by a law enforcement agency
that their goods or services were being used to facilitate serious
crime to say, “I didn’t realise that. I’m going to
stop it.” We would not need to go down the route of serious
crime prevention orders at all, because the vast majority of business
people would agree and comply with the law. They would say,
“Thank you for bringing it to my attention.
We all have a common interest in tackling such illegal activity and
serious crime, and I will
stop.” If a
person did not stop their activity and just said, “Well,
it’s not my intention for it to be used for crime, I’m
just in business. I’m just selling the computers, and
it’s nothing to do with me what happens with them,”
although they did not intend it to be used for serious crime, that
would be an abrogation of what most of us would see as the sensible,
reasonable course of action.
In such a case in which a
person did not respond, the law enforcement agency would go to the
applicant authority, such as the Serious Fraud Office, the Revenue
prosecutors or the Crown Prosecution Service, and say, “We
believe that in this situation it would be appropriate for a serious
crime prevention order to be used.” If that were taken before
the court, the respondent would be able to say to the court,
“Look,
what I did was perfectly reasonable.” It would then be a matter
for a High Court judge to determine. In the circumstances that I have
illustrated—I apologise if I have done so
long-windedly—the fishing tackle or computer shop owner could
say to the court, “I acted reasonably. It is not appropriate to
put a serious crime prevention order on me.” That would then be
a matter of judgment for the
court. I shall give
the hon. Gentleman another example, which I think was used in the
Lords. Somebody owns a bed and breakfast and is asked by law
enforcement, “Do you know that lots of your lodging rooms are
being used to traffic individuals?” If the owner were to say,
“Nothing to do with me; I’m a bed and breakfast
owner,” the vast majority of hotel
owners—
It
being One o’clock,
The Chairman
adjourned the Committee without Question put, pursuant to the
Standing
Order.
Adjourned
till this day at half-past Four
o’clock.
| 
