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Session 2006 - 07 Publications on the internet General Committee Debates Serious Crime Bill [Lords] |
Serious Crime Bill [Lords] |
The Committee consisted of the following Members:Emily
Commander, Committee
Clerk
†
attended the Committee
Public Bill CommitteeTuesday 26 June 2007(Afternoon)[Mr. Joe Benton in the Chair]Serious Crime Bill [Lords]Clause 2Involvement
in serious crime: England and Wales
orders
Amendment
proposed [this day]: No. 57, in
clause 2, page 2, line 23, leave
out paragraphs (b) and (c).—[Mr.
Hogg.]
4.30
pm
Question
again proposed, That the amendment be
made.
The
Chairman:
I remind the Committee that with this we are
discussing 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’.
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Vernon Coaker):
Good afternoon to you,
Mr. Benton, and to all members of the Committee. Before I
continue what I was saying before lunch, I wish to take the opportunity
to welcome you formally to the Chair. We had an interesting and good
debate this morning and I am sure that it will continue. We very much
look forward to serving under your chairmanship this afternoon and
during forthcoming sittings of the
Committee.
I was
replying to the debate on amendment No. 57. As I was saying to the hon.
Member for Taunton, the key point to when a person should be liable for
an order is that their actions must be unreasonable in the
circumstances. It is not enough for the person simply to be told by law
enforcement that their actions are facilitating serious
crime.
The right hon.
and learned Member for Sleaford and North Hykeham has said a number of
times that the orders are based on strict liability and that there is
no mental element in relation to facilitation. As I was
trying to make clear before lunch, including the
mental element suggests that the orders are criminal in nature.
Concepts such as intention or knowledge are inappropriate in that
context. In the case of McCann, the House of Lords decided that
antisocial behaviour orders are civil orders. One of the reasons for
that decision was that the court does not consider whether the subject
had a particular mental
state.
As I have said
several times, the orders are not punitive. We are not concerned with
whether a person intended harm, but with a person’s actions and
their outcome. Including a mental element will make it more difficult
to obtain an order even when it may be reasonable to impose an order on
the basis of behaviour when it would not be possible to prove intention
or knowledge.
I was
giving the hon. Member for Taunton a number of examples and was
finishing with the example of a person who owns a string of
lodging-houses that had been found on several occasions to contain
individuals who have been trafficked or smuggled, with the
accommodation paid for by others. The first option for law enforcement
might be to approach the owner and make him aware of the problem.
However, if it continued to happen, law enforcement might decide to
apply for an order. Although the matter would depend on the
circumstances, in such a case there would be a doubt about whether law
enforcement could prove that the owner had the requisite intention. The
owner might argue successfully that he had no knowledge that the people
were being trafficked or smuggled or that his purpose was to make money
and run his business rather than to facilitate
people-trafficking.
Kali
Mountford (Colne Valley) (Lab): I was concerned this
morning that some examples were being given to make it look as though
the orders were trivial in some way. I was thinking about some cases of
paedophilia in my constituency. Let us consider a taxi driver who
routinely took children to a particular address. If the taxi driver
owner was told that children were being taken there, but then did not
respond, what proceedings should follow his being told that the
children were being taken routinely to a particular address for ill use
and
abuse?
Mr.
Coaker:
I thank my hon. Friend for intervention. She has
highlighted another example of when serious crime prevention orders
could be used to prevent serious crime when someone is facilitating it.
They might not know that the taxis were being used for that, but when
told that they were, said, “My intention was not that they
should be used for crime; I am just running my business.” That
was the sort of example that I have cited in connection with
lodging-houses.
As
for the lodging-houses, an order that required the owner to provide law
enforcement for a limited period with a list of those staying in the
houses or where people’s stay was paid for by a third party
would be a reasonable and proportionate response to prevent those
houses from being used as stepping-stones on the way to
people-trafficking.
Margaret
Moran (Luton, South) (Lab): Following my hon.
Friend’s remarks and having just come back from a visit to the
Child Exploitation and Online
Protection Centre, would the Minister enlighten us as to whether such an
order would be helpful in tackling child abuse online? For example, if
a social networking site were warned that child abuse was happening on
that site, could the orders be used to prevent further abuse of
children?
Mr.
Coaker:
Certainly the orders could be considered in a
whole range of different circumstances. If my hon. Friend
looks—as I know she will have done—at the schedules, she
will see that there are a number of offences related to such issues.
However, the whole point of the order—as both my hon. Friends
said—is to prevent serious crime from taking place. That is the
whole purpose of the order. One of the ways of preventing serious crime
from taking place is to stop the facilitation of that
crime.
Mr.
Jeremy Browne (Taunton) (LD): Just because Labour Members
have decided to contribute in a way that they did not to the
conversation
earlier—
Mr.
Browne:
The Labour Members are contributing in greater
numbers than they did this morning. I want to clarify two brief points.
First, in the example given a moment ago, surely the best course of
action is to prosecute the suspected paedophile and bring the case to
court, rather than to use the examples contained in the
Bill.
Secondly, I am
still unclear as to what constitutes a warning. If I am a taxi driver
and a large amount of my business is taking children to play groups and
other such activities, a malicious individual wishing to do my business
harm might say that they think that some of the children in some
circumstances might be being taken to places that those children ought
not to go to. Is that sufficient warning? Does it have to be a police
officer? How many times does it have to be? Or can one person try and
ruin my business in that
way?
Mr.
Coaker:
I have said on a number of occasions that the
behaviour of a person who is the subject of an applicant authority
trying to take out a serious crime prevention order has to be
demonstrated to be unreasonable by the applicant authority—that
is the whole point of a serious crime prevention order.The
person’s defence, using the standard proof of the balance of
probability, is to demonstrate to the court that their behaviour was
reasonable. I put to the hon. Gentleman that surely, if the warning
given by law enforcement was not sufficient or was not regarded as
appropriate or the proper way of doing things, then the defence of the
person against whom the serious crime prevention order was being sought
would demonstrate to the court that their behaviour had been reasonable
and they had not been properly warned about what was taking
place.
Although the
hon. Gentleman and I may differ, I have said on a number of occasions
that the respondent has the opportunity to demonstrate in the High
Court
that their behaviour was reasonable. Also, where prosecution could take
place, we would expect prosecution, but the orders are about preventing
crime in the future and about trying to stop harm wherever it may
occur. My hon. Friends gave us two other
examples.
One other
thing is particularly important. Hon. Members should note—there
was some confusion in the other place—that when talking about
facilitation and about “mental state” and a
“mental element”, we are not talking about those who may
be suffering from a mental illness or otherwise mentally vulnerable.
There is nothing in the Bill on the issue because, in the High Court
and a Crown court, an order must be proportionate. It is hard to see
how it could be proportionate to give an order to a person who is so
mentally ill that they cannot manage their own affairs. In addition,
with proceedings before a Crown court, a person would have recently
stood trial, so it can be assumed that they have the necessary mental
capacity to be given a serious crime prevention
order.
Jeremy
Wright (Rugby and Kenilworth) (Con): May I ask the
Minister to consider one possibility? He has explained that before
someone is subjected to one of these orders they would have the
opportunity to demonstrate that what they had done was reasonable. The
burden of proof would be on the respondent to do that. If someone was
acting foolishly, they may have difficulty demonstrating to a court
that they had behaved reasonably. Presumably, it would not be the
Government’s intention to catch within the ambit of these orders
someone whose behaviour was simply
foolishness.
Mr.
Coaker:
The only people we are trying to catch with
the order are those who, for whatever reason, are acting in a way that
facilitates serious crime. I think that it would be for the courts to
judge whether someone’s behaviour had been reasonable or not.
Other members of the Committee will know better than I how the courts
work. My understanding is that foolishness on its own would not
necessarily be sufficient to impose on someone a serious crime
prevention order. The key point is to demonstrate the reasonableness of
their behaviour.
I
have spoken for a considerable time on the matter. I hope that my
comments have been helpful to Committee. I would, therefore, ask the
right hon. and learned Gentleman to withdraw his
amendments.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I may
withdraw my amendment, but I want to make a suggestion. I need your
guidance, Mr. Benton. I said at the first sitting today that
I was not a team player, but I like to be collegiate where I
can—which is pretty
rarely.
Mr.
Hogg:
I heard that. I noticed that there was quite
a lot of support for amendment No. 58 on the Opposition Benches and
perhaps elsewhere. However, I think that there was less support for the
lead amendment, No. 57. I would have a preference to move amendment No.
58 and not No. 57. I need your guidance, Mr. Benton, as to
whether I can do that. If you could advise me, I would be extremely
grateful.
The
Chairman:
My advice to the right hon. and learned
Gentleman is that he can withdraw amendment No. 57. It just so happens
that the next item on the Order Paper is amendment No. 58. If it is his
wish to press them, he can do
so.
Mr.
Hogg:
I am very grateful, Mr. Benton. That will
be my intention. I am not going to detain the Committee at any great
length, but I want to reinforce the reason why we should support the
concept in amendment No. 58. I understand why the Minister has
concentrated on clause 5(2). He has emphasised that in certain
circumstances it is for the respondent to come forward and establish
the reasonableness of his actions. He will also know that subsection
(2)(b) instructs the court to ignore his intentions and every other
mental element. In other words, the court is obliged not to consider
questions of knowledge and intent. The compilation of those two clauses
makes it absolutely plain that we are dealing with strict liability.
That means that a person who, as a matter of fact regardless of intent
or knowledge, carries out an act that amounts to a facilitation is a
person to whom the order-making powers can apply. I say “can
apply” and not “will apply” because ultimately
that depends on the discretion of the court. I take the point made by
the hon. Member for Colne Valley with regard to the taxi and people
traffickers. A taxi driver who, albeit unknowingly, goes to premises
which are used for people trafficking is undoubtedly facilitating a
crime.
Let me give
another example. A taxi driver who, albeit unknowingly, takes customers
to a brothel is undoubtedly facilitating the running of a brothel. As a
matter of fact, the courts may not be asked to impose an order, but, on
a strict reading of the Bill, it is self-evident that if an application
is made, the courts could impose an order. I believe that that is
profoundly wrong. I believe that the taxi driver in both cases should
only be subject to the Bill or the order-making powers if he was
knowingly and intentionally encouraging either the brothel or the
traffic in people. That is not what it says in the Bill, which is why I
wish to see incorporated the language in amendment No. 58, namely the
concepts of knowledge and intention. That way, we safeguard people like
the taxi driver who otherwise are prima facie caught by the
facilitation. For those reasons I wish to withdraw
amendmentNo. 57 and move amendment No.
58.
4.45
pm
Mr.
Browne:
Mr. Benton, I would like to press
amendment No. 3 to a vote as well. I do not know the
procedure.
The
Chairman:
It is quite in order to press that amendment
when we come to it. I will call it
formally.
Amendment,
by leave, withdrawn.
A
mendment
proposed: No. 58, in clause 2, page
2,
line 23, after ‘has’, insert
‘knowingly and intentionally’.—[Mr.
Hogg.]
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 7, Noes
9.
Division
No.
5
]
AYESNOES
Question
accordingly negatived.
Amendment proposed: 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’.—[Mr.
Browne.]
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 7, Noes
9.
Division
No.
6
]
AYESNOES
Question
accordingly negatived.
No. 8, in
clause 2, page 3, line 19, leave
out subparagraph
(ii).
Mr.
Browne:
This is the first opportunity I have had to speak,
as when I have been speaking previously I have been intervening,
seeking your guidance or welcoming you to the Chair of this Committee,
Mr. Benton. I will speak briefly on the intention behind
these two amendments.
Amendment No. 4 seeks to remove
the court’s ability to define what a serious crime is. The
legislation states that a serious offence in England and
Wales
“is one which, in
the particular circumstances of the case, the court considers to be
sufficiently serious to be treated for the purposes of the application
or matter as if it were so
specified.”
So although
serious crimes are defined in schedule 1 of the legislation, the list
is not exhaustive and may be amended by the Secretary of State by
order. Amendment No. 4 seeks to remove that discretion from the
court.
Amendment No. 8
is one that we considered withdrawing, subject to reassurances from the
Minister. The essential point we are trying to get to is whether a
serious crime prevention order could be issued for a crime committed
abroad, which is not an offence in the United Kingdom. The examples
which are often cited in this regard are, for example, holocaust denial
in some other countries in Europe which is not an offence here. I
understand that it is an offence in France not to go to the assistance
of a person in danger, but that is not so in the United Kingdom.
Because serious crime prevention orders can be applied internationally,
we are keen to ensure that they are not issued for offences that may
not exist in the UK but do exist in other member states of the European
Union or elsewhere. If the Minister were to reassure us, we would be
grateful.
Mr.
Hogg:
I support the amendment. It is rather important. If
one looks at the language of subsection (2), one sees at once that any
conduct that the court thinks sufficiently serious can fall within the
category of “a serious offence”, and that it shall be so
treated. In other words, it does not have to be criminal conduct. It is
sufficient if the court thinks it serious. I recognise that we are not
dealing with a crime—a point that has been made by the Minister
on many occasions. In theory, we are not dealing with punitive
measures. However, the Committee knows full well that the consequences
of the order are severe and that they are indistinguishable in many
respects from a penalty for a criminal offence.
One should ask this question.
How would the Committee feel if one were to introduce a criminal
justice Bill one of the terms of which, notwithstanding the fact that
the matters set out in the indictment did not constitute a criminal
offence, was that a trial judge could, if he thought the circumstances
sufficiently grave, treat an offence as criminal? To say that that was
acceptable would be so absurd that even Labour Members recognised the
folly of it. Actually, it is little different from what is proposed in
the Bill. We are enabling judges of the High Court or the Crown court
to say, “I so dislike this activity that I am going to treat it
as a ‘serious crime’ in respect of which a serious crime
prevention order will be made.”
That raises another interesting
question: how could one appeal such a sentence? If it is entirely
within the discretion of the trial judge, and if he is not given any
guidance or criteria as to whether such matters should fall within the
provisions of subsection (2), the decision is virtually—perhaps
entirely—unappealable.
The hon. Member for Taunton is
entirely right; it is a deeply objectionable provision. If he presses
the amendment to a Division—I hope that he does—he will
have my
support.
Nick
Herbert (Arundel and South Downs) (Con): I too support the
amendment and everything said by the hon. Member for Taunton and my
right hon. and learned Friend. I too believe that subsection (2) is
objectionable. It seems to be slightly tautologous. It says that a
serious offence is
“one
which...the court considers to be sufficiently
serious”.
No elaboration
is given, so the definition is as broad as the court would wish it to
be.
In addition to
the objections given by my right hon. and learned Friend, the provision
contravenes the principle of legal certainty. We heard in debates on
previous amendments that no element of mens rea is required for issuing
serious crime prevention orders; but setting that aside, how is a
person to know that his conduct might come within the ambit of a
serious crime prevention order if no definition is given of serious
crimes? Despite the fact that we have a list of offences—the
list given in schedule 1 is obviously non-exhaustive, as the Minister
seeks the power to add to it—how can anyone know whether his
conduct is “serious” if the court can determine that any
conduct is serious if, in its own judgment, it is to be treated so?
That undermines completely the principle of legal certainty and
seriously widens the potential scope of the legislation. The Minister
needs to explain why it is necessary to have a specific list of
offences as well as the catch-all provision. If he cannot explain why
the catch-all provision is necessary, it is
indefensible.
Mr.
Coaker:
May I provide some clarification on the point
raised by the hon. Member for Taunton and then come to the more general
discussion on the amendments? If he looks at clause 2(5) he will find
the answer to his question about to whom a serious crime prevention
order could be applied. The answer is that if someone commits an
offence overseas, a serious crime prevention order can be applied,
providing it is an offence in this country as well. For example, if
somebody committed an offence of drug trafficking in France, where it
is obviously illegal, as it is here, it could form the basis of a
serious crime prevention order. The offence would have to be illegal in
both countries for such an order to be used. I hope that that clarifies
the point.
As we have
discussed already, we have provided a schedule of offences to show the
large majority of offences in relation to which the use of such orders
would be appropriate. Within the framework of the schedule, we have
also provided a discretion forthe High Court to treat an
offence as serious if inthe circumstances of the case before
it, which we cannot know or foresee, it considers the offence to be
serious enough to be treated as if it were specified in schedule 1.
This might be a point of disagreement between us, but we think that it
is important that the Court has that discretion. We cannot list every
type of offence. It might be appropriate to leave that to the
consideration of the High Court, which might wish to consider other
serious crimes. We think that that discretion is important, which is
why we have put it in the
Bill.
Nick
Herbert:
The more the Minister defends the provision, the
more it strikes me as objectionable. He says that we cannot know or
foresee what he describes
as serious crimes that might be caught under the
provision. If the Government cannot know or foresee such serious
potential offences, which could fall under the ambit of what becomes a
criminal matter or certainly might lead to serious restrictions on
people’s freedom to go about their business, how can he
reasonably expect individuals to know or foresee that something may
become subject to one of those orders? What does that do for the
principle of certainty and what kind of legislative basis is it when
this House provides a provision that could catch any conduct subject
only to whether the Court judges it to be
serious?
Mr.
Coaker:
I remind the hon. Gentleman that, of course, the
High Court is a public authority for the purposes of the Human Rights
Act 1998 and that any judgment that it makes must be proportionate.
That is a discussion that was had with the right hon. and learned
Member for Sleaford and North Hykeham earlier. As I said, we want to
ensure that the High Court has the necessary discretion so that is not
fettered by looking only at a schedule. Serious crimes and other
matters might come before it that are not in the schedule, but which
the Court believes to be appropriate for a serious crime prevention
order. That is why we have provided the discretionary power for the
Court.
Mr.
Hogg:
I hope that the Minister will deal with the appeal
point, because I find it very difficult to envisage the way in which a
court to which an appeal is made will determine whether conduct falls
within this open-ended subsection.
5
pm
Mr.
Coaker:
The right hon. and learned Gentleman knows the
court system better than me, but he also knows that if an offence is
treated as serious, and people regard it as unreasonable, the decision
can be appealed against, and it can be appealed against to the Court of
Appeal. There is an appeal process in the legal system, and if the High
Court makes an unreasonable decision, a decision that people consider
inappropriate, disproportionate or inconsistent with the Human Rights
Act, or there is an error of law, it can of course be appealed against
to the Court of Appeal. There is an appeals
process.
Mr.
Hogg:
I am grateful to the Minister for what he has just
said, but he will remember that he rejected my suggested criterion of
being just, necessary and proportionate, which would have enabled an
appellate court to consider the matter properly. The only word is now
“appropriate”, which will be jolly difficult for an
appellate court to
consider.
Mr.
Hogg:
I did not say that, or if I did, I did not mean to
say it. I said that an appellate court could not consider an appeal,
not that there would not be an appeal. I know perfectly well that the
Bill makes provision for an appeal procedure, but when thereis
an undefined set of circumstances, it is not easyand probably
not possible for an appellate court toreview
it.
Mr.
Coaker:
The right hon. and learned Gentleman has clarified
for the Committee the importance of the fact that there is an appeal
process, which is available to somebody who is made the subject of a
serious crime prevention order in the High Court and believes that it
is disproportionate, that there has been an error of law or that an
injustice has taken place.
It is important that we do not
fetter the discretion of the courts to adapt to the constant changes
that surround us, consider the context of events and make a fully
informed and reasoned decision about whether it would be appropriate
for the offence to attract an order. I shall provide an example of why
the discretion is necessary. It is inappropriate to include in the
schedule offences against the person such as assault or murder, because
they are not suitable for attracting an order in all circumstances. For
example, if one person assaulted another in a simple fight in a pub, I
am sure that we would all agree that the order would be inappropriate.
However, if someone has routinely used violence to intimidate and
maintain a reign of terror in an area, and if there is evidence that an
order would prevent such crimes from happening again, that person might
be an appropriate candidate for an order after serving their
sentence.
The
circumstances in which the offences are committed make an order
appropriate—or not. The person best placed to judge those
circumstances is a judge sitting in the High Court, or as the case may
be, a judge sitting in the Crown court, with all the facts in front of
him. That is why I do not propose to agree to fetter judges’
discretion to deal with the cases before them in the most appropriate
way. As a result, I ask the Committee to resist the
amendment.
Question
put, That the amendment be
made.—
The
Committee divided: Ayes 7, Noes
8.
Division
No.
7
]
AYESNOES
Question
accordingly negatived.
Question proposed, That
the clause stand part of the Bill.
Mr.
Hogg:
I shall be brief because I have made my substantive
arguments by way of amendment. I object to the provisions of the clause
and disapprove of it for three reasons. First, as I have explained to
the Committee, I am strongly opposed to the way in which it defines
“a serious offence”. It is wrong in principle to do that
by way of categorisation. If we have to do it at all, we should do it
by reference to the sentence that particular conduct attracts; hence
the amendments that I tabled suggesting that the length of a sentence
be the indication of an offence’s
gravity.
Secondly, I
have very real inhibitions about including in the scope of “a
serious offence” the act of facilitation. Facilitation per se is
not necessarily a criminal offence. Although the orders are not being
created for criminal offences, the consequences of an order will be
almost indistinguishable from a penalty imposed. I am loth to agree to
that when the act complained of is not a criminal offence. Thirdly, if
we are driven to the position whereby facilitation is to be included as
a triggering act, it is quite plain that that should be done only if
the facilitation is knowing and intentional. That addresses the point
made by the hon. Member for Colne Valley.
Those are the three principal
reasons why I am against the clause, and I shall vote against
it.
Question put,
That the clause stand part of the
Bill:—
The
Committee divided: Ayes 8, Noes
7.
Division
No.
8
]
AYESNOES
Question
accordingly agreed to.
Clause 2 ordered to stand
part of the
Bill.
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