House of Commons
|Session 2006 - 07|
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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 Committee
Tuesday 26 June 2007
[Mr. Joe Benton in the Chair]
Involvement 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.]
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
As I have said several times, the orders are not punitive. We are not concerned with whether a person intended harm, but with a persons 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 peoples 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. Friends remarks and having just come back from a visit to the Child Exploitation and Online
Mr. Coaker: Certainly the orders could be considered in a whole range of different circumstances. If my hon. Friend looksas I know she will have doneat the schedules, she will see that there are a number of offences related to such issues. However, the whole point of the orderas both my hon. Friends saidis 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 authoritythat is the whole point of a serious crime prevention order.The persons 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
One other thing is particularly important. Hon. Members should notethere was some confusion in the other placethat 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 Governments 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 someones 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 canwhich 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.
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 ]
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 ]
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 courts 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 crimea 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 virtuallyperhaps entirelyunappealable.
The hon. Member for Taunton is entirely right; it is a deeply objectionable provision. If he presses the amendment to a DivisionI hope that he doeshe 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 offencesthe list given in schedule 1 is obviously non-exhaustive, as the Minister seeks the power to add to ithow 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
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.
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 appropriateor 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 ]
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 offences 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 ]
Question accordingly agreed to.
Clause 2 ordered to stand part of the Bill.
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