Clause
76
Requests
to other member
States
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Vernon Coaker):
I beg to move amendment
No. 257, in
clause 76, page 54, line 4, after
‘imposed’ insert
‘by
a court in England and
Wales’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 258 to 269, 278 to 284, 270 to 274, 285, 275
to 277, and 371.
Government
new clause 42—Requests to other member States: Northern
Ireland
Government
new clause 43—Procedure on receipt of certificate by Lord
Chancellor: Northern
Ireland.
Government
new clause 44—Modification of Magistrates’ Courts Act
1980.
Government
new clause 45—Requests from other member States: Northern
Ireland.
Government
new clause 46—Procedure on receipt of certificate by clerk of
petty
sessions.
Government
new clause 47—Modification of Magistrates’ Courts
(Northern Ireland) Order
1981.
Government
new clause 48—Transfer of certificates to central authority
for
Scotland.
Government
new schedule 5—Penalties suitable for enforcement in England
and Wales or Northern
Ireland.
Mr.
Coaker:
Thank you, Mr. O’Hara. This is
the first time I have had the pleasure of speaking while you are
chairing the Committee, so I welcome you to the Chair. I might well be
speaking for much of the rest of the sitting.
The
amendments are technical, and I commend them to the
Committee.
Mr.
Heath:
I have a brief observation to make. It is
interesting that this part of the Bill, which has been introduced by a
Home Office Minister, specifies that the Lord Chancellor has certain
functions, whereas parts introduced by Justice Ministers specify the
Secretary of State. Why was it necessary to specify the Lord Chancellor
by title in this part of the Bill, but not in previous or subsequent
parts?
Mr.
Coaker:
I think that it is because that is the appropriate
title to use in this part of the Bill.
Amendment
agreed to.
Amendment made: No. 258,
in clause 76, page 54, line 11, at
end insert—
‘( ) any fine or
other sum mentioned in section (Requests to other member States:
Northern Ireland)(4)(b)(i) to (iii), or any fine imposed by a court in
Scotland, which is enforceable in a local justice area in England and
Wales by virtue of section 91 of the Magistrates’ Courts Act
1980 (c. 43);’.—[Mr.
Coaker.]
Clause
76, as amended, ordered to stand part of the Bill.
C
lause
77
ordered to stand part of the
Bill.
Clause
78
Requests
from other member
States
Amendments
made: No. 259, in clause 78, page 54,
line 45, at end insert ‘,
and
( ) the financial penalty is suitable
for enforcement in England and Wales (see section
80(A1)).’.
No.
260, in
clause 78, page 55, line 1, leave
out from ‘certificate’ to third ‘the’ and
insert ‘states
that’.
No.
261, in
clause 78, page 55, line 6, leave
out from beginning to third ‘the’ in line 7 and insert
‘Otherwise,’.
No.
262, in
clause 78, page 55, line 8, leave
out ‘may’ and insert
‘must’.
No.
263, in
clause 78, page 55, line 17, leave
out paragraph
(a).
No.
264, in
clause 78, page 55, line 22, at
end insert—
‘( )
Where—
(a) the competent
authority or central authority of a member State other than the United
Kingdom gives the central authority for Scotland the documents
mentioned in subsection (1),
and
(b) without taking any
action to enforce the financial penalty in Scotland, the central
authority for Scotland gives the documents to the Lord
Chancellor,
this section
applies as if the competent authority or central authority gave the
documents to the Lord
Chancellor.’.
No.
265, in
clause 78, page 55, line 23, leave
out subsection (6).—[Mr.
Coaker.]
Clause
78, as amended, ordered to stand part of the
Bill.
Clause 79
ordered to stand part of the
Bill.
Clause
80
Recognition
of financial penalties:
supplemental
Amendments
made: No. 266, in clause 80, page 56,
line 15, at end
insert—
‘(A1) Schedule
(Penalties suitable for enforcement in England and Wales or Northern
Ireland) specifies when a financial penalty is suitable for enforcement
in England and Wales for the purposes of section 78(1) and when a
financial penalty is suitable for enforcement in Northern Ireland for
the purposes of section (Requests from other member States: Northern
Ireland)(1)’.
No.
267, in
clause 80, page 56, line 17, leave
out 'and 79(3) and (5)’ and insert
‘, 79(3) and (5), (Requests from other
member States: Northern Ireland)(4)(a) and (Procedure on receipt of
certificate by clerk of petty sessions)(3) and
(5)’.
No. 268, in
clause 80, page 56, line 22, at
end insert—
‘( ) modify the
enactments specified in section (Procedure on receipt of certificate by
clerk of petty sessions)(6) in their application to financial penalties
by virtue of that provision,
and’.
No.
269, in
clause 80, page 56, line 27, at
end add—
‘( ) Northern
Ireland legislation;
( ) any
instrument made, before the passing of this Act, under Northern Ireland
legislation.’.—[Mr.
Coaker.]
Clause
80, as amended, ordered to stand part of the
Bill.
Schedule
16
Grounds
for refusal to enforce financial
penalties
Amendments
made: No. 278, in schedule 16, page 188,
line 27, leave out ‘England and Wales’ and
insert
‘the relevant part of the
United
Kingdom’.
No.
279, in
schedule 16, page 188, line 28, leave
out ‘England and Wales’ and insert ‘that
part’.
No.
280, in
schedule 16, page 188, line 28, at
end insert—
‘() In
sub-paragraph (1), “the relevant part of the United
Kingdom”
means—
(a) in the
application of this Schedule to England and Wales, England and Wales,
and
(b) in the application of
this Schedule to Northern Ireland, Northern
Ireland.’.
No.
281, in
schedule 16, page 188, line 31, leave
out ‘England and Wales’ and insert
‘the relevant part of the United
Kingdom’.
No.
282, in
schedule 16, page 188, line 32, leave
out ‘England and Wales’ and insert ‘that
part’.
No.
283, in
schedule 16, page 188, line 32, at
end insert—
‘() In
sub-paragraph (1), “the relevant part of the United
Kingdom” has the same meaning as in paragraph
3(1).’.
No.
284, in
schedule 16, page 190, line 25, leave
out sub-paragraph (1).—[Mr.
Coaker.]
Schedule
16, as amended, agreed
to.
Clause
81
Interpretation
of sections 76 to
80
Amendments
made: No. 270, in
clause 81, page 56, line 29, at end
insert
‘and Schedules (Penalties
suitable for enforcement in England and Wales or Northern Ireland) and
16’.
No. 271, in
clause 81, page 56, line 30, after
‘State’ insert ‘other than the United
Kingdom’.
No. 272, in
clause 81, page 56, line 32, at
end insert—
‘
“central authority for Scotland” means the person or body
which, by virtue of an order under section 56 of the Criminal
Proceedings etc. (Reform) (Scotland) Act 2007 (asp 6) (recognition of
EU financial penalties), acts as the central authority in relation to
Scotland for the purposes of the Framework
Decision;”’.
No. 273, in
clause 81, page 56, line 39, at
end insert—
‘( ) In
sections 78, 79, (Requests from other member States:
Northern Ireland), (Procedure on receipt of certificate by clerk of
petty sessions), (Modification of Magistrates’ Courts (Northern
Ireland) Order 1981), (Transfer of certificates to central authority
for Scotland) and 80 and Schedules (Penalties suitable for enforcement
in England and Wales or Northern Ireland) and
16—
“decision”
has the meaning given by Article 1 of the Framework Decision on
financial penalties (except in sections 79(4) and (Procedure on receipt
of certificate by clerk of petty
sessions)(4));
“financial
penalty’’ has the meaning given by that
Article.’.
No.
274, in
clause 81, page 56, line 40, leave
out ‘those sections’ and insert ‘sections 76 to
80’.—[Mr.
Coaker.]
Clause
81, as amended, ordered to stand part of the
Bill.
Clause
82 ordered to stand part of the
Bill.
Clause
83
Violent
offender
orders
Harry
Cohen (Leyton and Wanstead) (Lab): I beg to move amendment
No. 325, in clause 83, page 57,
line 20, leave out ‘the public’ and insert
‘a person or specified
persons’.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 326, in
clause 83, page 57, leave out lines 26 and
27 and insert
‘any specified
members of the public in the United
Kingdom’.
Clause
stand
part.
Amendment
No. 327, in
clause 86, page 59, line 35, leave
out ‘the public’ and insert
‘a person or specified
persons’.
Harry
Cohen:
My amendments are probing
amendments, although they are a little radical. At least one of them
would wipe out clauses 83 to 102, which I thought might appeal to my
hon. Friend the Whip, as well as to other members of the
Committee, because it would save
time.
I
want the Government to justify and explain how they will use violent
offender orders. As with earlier amendments, I tabled these on behalf
of Liberty, which has raised several concerns. It is not that I am
trying to get rid of violent offender orders, but Liberty has made the
case that non-molestation orders could be used as an alternative
approach. However, that amendment has not been chosen for
discussion, although it will be part of the package of proposals that I
shall be speaking about.
Mr.
Heath:
The hon. Gentleman knows that I agree that the
extension of non-molestation orders might prove an acceptable
alternative to, or substitute for, the clause. Does he agree that it
would be helpful if the Minister could say whether the Government even
considered such a proposal before they drafted this new class of order,
which seems to many of us superfluous?
Harry
Cohen:
The point has been made and I hope that, when the
Government respond in the clause stand part debate, they will at least
say how they view the non-molestation order.
The proposed
violent offender orders continue the trend of creating civil orders, a
breach of which would become a criminal offence. I share
Liberty’s view that the orders could become too broad in their
application and breach some of the conventions that we are rightly tied
up to. Liberty also makes the point that, if the order is too broad, it
is more likely to be breached. A person can get caught up in just too
many things, instead of the order covering something specific so they
know where they are. It said that extraordinary scope will be available
for the imposition of restrictions on individual freedom under the
clause.
5.15
pm
Liberty
is saying that the order is unnecessary in some ways because the
Criminal Justice Act 2003 provides for anyone convicted of specified
offences, punishable by more than 10 years’
imprisonment—violent offences—will be given an indefinite
period of imprisonment for public protection and, once released from
prison, will be on licence for a minimum of 10 more years. After that,
they can apply to the Parole Board for termination of the licence, but
the Parole Board might not decide to do so if it regards the person as
such a risk. If it does not do so, the person would still be subject to
conditions and to recall. The necessity of the orders is in
question.
I
should like a response from the Under-Secretary about a good point that
Liberty makes about retrospection. It seems that, at least initially,
the orders could be used retrospectively. Prisoners coming out of
prison who were sentenced under the old system may suddenly find orders
applied to them under this legislation. That would be a retrospective
application of the provision. Again, that could put us in breach of our
international legal obligations. Will the Under-Secretary say something
about whether that is the intention? That may be justified, but I am
not entering the argument on that point: I am just saying that there
are problems with retrospection, if that is what is
intended.
Liberty
says that the provision raises the possibility of the order being
applied for at any time and thinks it more appropriate for there to be
a window of time, particularly when a licence is coming under review.
That is the time for the orders to be applied for, if they are going to
be in place at all. There should not be an open-ended approach, meaning
that they could be applied for at any
time.
Liberty
also says that the danger with the orders lies in a risk assessment
taking place that identifies someone as being a “risk of serious
harm”, without needing to identify a particular person or
persons that they are a risk to. That is where the non-molestation
orders would come into play, because they would specify the individual.
However, the provision becomes too broad, in Liberty’s view,
when it relates to risk to the
public.
I
have mentioned Liberty’s main points as succinctly as I can.
There are questions on this set of clauses for the Under-Secretary to
respond
to.
Mr.
Burrowes:
I shall also speak to clause stand part.
I endorse the comments of the hon. Member for Leyton
and Wanstead, particularly in relation to seeking vainly, on one hand,
to restrict the breadth of the order, while
on the other hand—although a particular amendment was not
selected—seeking to remove it completely from the Bill. On both
those counts, I endorse his
approach.
On
20 April 2006, the then Home Secretary indicated that there was a
strong case for the introduction of violent offender orders along the
same lines that have proved effective for sex offenders. The issue is
primarily whether that strong case exists. Certainly, a long and
extended family of civil orders is being built up, whether they be
banning orders, ASBOs, sex offender prevention orders, foreign travel
orders, risk of sexual harm orders or control orders. Indeed, it may be
more appropriate to follow the title of the Home Office review with a
rebalancing the criminal justice system in favour of the law-abiding
majority order. Perhaps that would be the best way of grouping
everything.
The key
question is whether the provision is needed. The hon. Members for
Leyton and Wanstead and for Somerton and Frome, made the point that
there are public protection offences on the statute book: the Criminal
Justice Act 2003, the non-molestation orders in the Family Law Act 1996
and the Domestic Violence, Crime and Victims Act 2004 all contain
elements of public protection.
Many
respondents to the Government’s review were sceptical about the
need to legislate, but how do the Government aim to deal with the
perceived problem? Their response appears to be inconsistent. On the
one hand, they say that there remain gaps into which some offenders may
fall. The Government say:
“For
example, some may have been convicted of a schedule 15 offence before
April 2005 and therefore not eligible for the public protection
sentences. Others may not have been assessed as sufficiently dangerous
at conviction, but their risk has increased since that
time.”
I therefore invite
the Minister to state clearly how many people fall into the gap that
needs to be plugged. The indication is that as a result of the
provision, there would be some 100 orders each year. Of those 100 in
the gap, how many would not have been party to the conviction rate
before April 2005?
Further on,
the Government’s response suggests that there is a gap in public
protection sentences. It talks the language of a
sentence—indeed, of a punitive sanction and a criminal sentence.
However, further on, it makes it clear that
“a Violent Offender Order is not a
punishment but a civil preventative
measure.”
It
continues:
“The
VOO is not imposed as an additional punishment for a Schedule 15
offence,”
despite the
Government saying that they needed to plug the gap in public protection
sentences. Even at the early stage of their response to the public
consultation, there appears to be inconsistency about the nature of the
order, which perhaps is inherent when one seeks to bring in a civil
order in a quasi-criminal manner.
The clause
mirrors other civil orders. Indeed, one could enter the debate during
the passage of the Serious Crime Act 2007 into the record, sit down and
carry on. That would be an easy but perhaps too brief way of doing it,
and we would not go to the depths and lengths to which my hon. Friends,
with great consideration, dealt with that Act.
I highlight
three points. The hon. Member for Leyton and Wanstead made the point
about the order applying at any time. The concern is that the order
will be applied for, not at the conclusion of the sentence, when it has
had its true effect, in order to determine whether there is a
continuing public risk at the appropriate time, but at any time. The
court will be able to determine the issue before the sentence has had
an effect, which suggests that the violent offender order will at best
add unnecessarily to a criminal sanction, and at worse circumvent and
undermine the criminal justice process. That process is the crucial
part of the order, and the one that raises most concerns.
The Minister
will no doubt want to emphasise time and again that the provision is
preventive not punitive, but subsection 1(a) states that the
order
“contains such
prohibitions, restrictions or conditions as the court making the order
considers necessary.”
The
conditions and examples of those prohibitions, restrictions or
requirements were made explicit in the 2007 Act, so will the Minister
explain why they are not made explicit in the violent offender order
aspect of this Bill? Those requirements could affect an
individual’s working arrangements, communication and association
with others, access to and use of certain premises, travel, financial
property, and business dealings or holdings. The liberty of such an
offender could be
circumscribed.
I
do not want to go into too much detail about the preventive and
punitive elements of the debate, but perhaps the orders could be made
in line with community orders, which can contain preventive and
punitive elements, but which are nevertheless dealt with in the
criminal courts and with appropriate burdens of proof. No doubt we will
return to that matter during our discussions on amendments Nos. 364 and
365 when we can debate the appropriate burden of proof—whether
it is a civil or criminal
burden.
Key
to the process are the length of orders, which have no time limit that
could be renewed indefinitely, and the resources needed to make such an
order effective. It has been indicated that the police will be
responsible for applying for, monitoring and enforcing an order. That
will place a burden upon the police’s existing activities. Will
the Minister confirm whether existing resources will be made available
to deal with the effectiveness of such
orders?
The
bottom line is that there is no convincing evidence that the orders are
necessary. Certainly some violent offenders are prevalent after
sentencing and the public need protecting from them. However, the focus
should be on ensuring that the criminal sanctions and sentences are
effective and that the public are fully protected, rather than on
establishing new legislative processes that blur the distinctions
between the civil and criminal fields and between fundamental
rights.
Mr.
Heath:
I shall be brief because the hon.
Members for Leyton and Wanstead and for Enfield, Southgate have covered
most of the points that I wished to raise.
Liberal
Democrat Members have had long-term anxieties about the proliferation
of injunctions against future offending. This is just the latest
example of the way in which increasingly the Government see such
injunctions as a means of reducing offending without having recourse
to the criminal courts. It is hard to see their justification, because
other measures are available. I repeat my request to the Minister
concerning new clause 52, which was not selected for debate, but it is
relevant to the clause stand part debate because it would provide an
alternative way in which to address a problem
identified—presumably—by the Government. However, it
would do so by using existing laws and by extending provisions that are
already on the statute book, and without increasing—yet
again—the number of effectively non-criminal sanctions available
for dealing with criminal behaviour, which is what most concerns us.
Has the Minister considered that option, or indeed any other options?
What is the distinctive nature of the new orders that makes them
preferable to alternative disposals, available through existing
practice or the courts, when dealing with those who break the law? What
is wrong with the old-fashioned method of indicting them and letting a
jury and a court determine the correct
disposal?
Mr.
Coaker:
I thank the Committee for continuing with the
constructive way in which it deliberated the Bill this morning. From
the start, I accept that there is a difference between the Government
and the hon. Members for Somerton and Frome and for Enfield, Southgate.
I do not try to minimise it. All I want to do is to put the
Government’s case and the alternative point of view in respect
of the use of civil orders. I preface my comments with that because
there is a very real difference—I understand that—but it
is important to make the case again for the use of civil orders,
notwithstanding the difference between
us.
5.30
pm
If
we consider the use of civil orders—antisocial behaviour orders
are the ones most often referred to—I think that generally
speaking they have been successful. In fact, the cry about the use of
civil orders in my and other people’s constituencies is not that
we should not have them because they are civil orders but that they
want more of them. They do not argue about whether antisocial behaviour
orders are civil or criminal orders. They just see them as a useful way
to control antisocial
behaviour.
Similarly,
football banning orders have been hugely successful in controlling
behaviour, and they are civil orders. Sexual offences prevention
orders—again, very successful—control sex offenders.
Civil orders make a real difference to preventing harm in our
communities and, therefore, to protecting the
public.
The
hon. Member for Enfield, Southgate mentioned again the debate that we
had on the Serious Crime Act 2007. If people read it, they will find
that it, too, involved a clash of views, opinions and deeply held
beliefs. None the less, views and opinions were logically argued and,
in the end, tested with a vote. People disagreed. The serious crime
prevention orders that were passed during that Bill are another example
of a civil order that we think will prevent
crime.
The
hon. Gentleman says, “The Minister will no doubt say that the
orders are not punishments for past offences but preventive
measures.” Of course that is the case that I will make. We are
not saying that somebody who is a qualifying offender should be
punished again for an offence that they committed. We are saying that
if the chief police officer thinks that by going to the court
he can prevent harm that may occur in the future, either to an
individual—I shall come to the points made by my hon. Friend the
Member for Leyton and Wanstead and the hon. Member for Somerton and
Frome—or to the public, making this measure available to the
courts, where there is a right of appeal, will be of benefit to the
community. In
answer to the hon. Member for Enfield, Southgate, we expect about 100
such orders a year. We are not sure exactly what the breakdown of the
orders is, but that is our best estimate at
present.
Mr.
Garnier:
Subsection (3) sets out the specified offences:
manslaughter, offences under the Offences against the Person Act 1861,
wounding with intent to cause grievous bodily harm, malicious wounding
and attempted murder. If the Minister does not think that those
offences either under common law or under statute are not sufficient to
prevent people from committing those crimes, why does he think that the
imposition of a violent offender order will have any more
effect?
Mr.
Coaker:
The argument is that the specified offences laid
out in subsection (3) are the offences for the purposes of the order.
People will have been punished for those offences through the criminal
justice system. They will have been given prison sentences and perhaps
allowed out on licence at the end of their prison sentences, depending
on what happened. To qualify, the offender must have committed one of
the specified offences, but this is not about punishing those
offenders. Of course, it is about deterring people from committing such
crimes, but the orders are for people who, in the eyes of the court,
still pose a risk to others when the various punishments that they have
been given for committing those offences have finished. The hon. and
learned Gentleman will know that violent offender orders cannot be
enforced while offenders are subject to a punishment imposed by a
court. I reiterate that these offenders will already have been punished
for committing a specified offence; the measures are about preventing
future
harm.
Mr.
Garnier:
It is probably entirely my fault, but I do not
think that the Minister quite understood my question. Let us assume, as
we must, that the specified offender has committed a specified offence
in the past. On that basis, he is brought within the remit of the
violent offender order system, and the court, if it is satisfied that
it should do so, can impose certain restrictions on his movement and
with whom he may associate. If he is sufficiently careless or mindless
of the law, or knowledgeable about the law and prepared to breach it,
to the extent that he will commit a specified offence, and has in the
past, why do the Government think that he will pay the slightest
attention to a violent offender order that seeks to prevent him from
going to a particular address or associating with certain people?
If
someone is minded to commit one of the serious offences in subsection
(3), he will not be bothered by a violent offender order. The
Government will fill our prisons with people who have breached these
orders, as has happened with ASBOs. A great many people have been sent
to prison for up to five years for breaching ASBOs, not because they
fall under the categories in
subsection (3), but because they are mentally ill, alcoholics or
substance abusers. Such people have social or other issues that need to
be dealt with, but not necessarily by a term of imprisonment. That is a
different issue, but the same principle
applies.
Mr.
Coaker:
I did understand the hon. and learned
Gentleman’s point, and apologise if I did not answer it
particularly well. I thought that I was explaining that the court would
make a judgment on whether making someone who has been found guilty of
a specified offence subject to an order under subsection (1) would
prevent future harm and protect the public. That is why we have made
the breach of such an order a criminal offence. If someone breaches a
violent offender order, they could be subject to a term of imprisonment
of up to five years.
I suggest
that whether or not someone has been found guilty of a specified
offence, if a court told them that they could not associate with
certain people or go to a certain place because the court believed that
they might cause harm to an individual or others, they would take note
of that order if they were threatened with imprisonment if they did
not. I take the hon. and learned Gentleman’s point about filling
up the prisons, however. We think that a small number—about 100
people—might breach orders and be subject to a term of
imprisonment, but that is a price worth paying to protect the public
from certain individuals.
On the point
made by my hon. Friend the Member for Leyton and Wanstead, the
conditions linked to a violent offender order will always be linked
with the specific risk posed by the individual. They will be a matter
for the courts to determine, and of course they will need to be
proportionate as the court will have to act in a way that is consistent
with the Human Rights Act. The procedure will be exactly the same as
that which operates for a whole range of other civil orders that the
Government have introduced, whether antisocial behaviour orders or
others.
The
problem with just using non-molestation orders instead of violent
offender orders would be that they can be used only to protect named
individuals or individuals known to the person in question.
Non-molestation orders may therefore not be able to protect individuals
not known to the person subject to the order. Of course,
non-molestation orders do not apply to the public. A person who is made
the subject of a violent offender order will be someone who is believed
to be a danger to the public. In that respect, a non-molestation order
would not be appropriate and could not be used. I loved what my hon.
Friend the Member for Leyton and Wanstead said—it was a bit of a
radical proposal. I think that it was the nuclear option. He wanted the
whole of part 8 struck out of the Bill.
Violent
offender orders are intended to build on and complement other public
protection measures, including determinate extended and indeterminate
sentences, which were introduced in the Criminal Justice Act 2003.
Whereas those measures are applied at the point of sentencing, the
principal aim of the violent offender order is to protect the public
from the most dangerous violent offenders who still present a risk of
serious, violent harm at the end of their sentences, when there is no
other risk management mechanism in place. We are introducing the orders
to manage the risk of the most
serious violent offenders, who fall into three main categories:
individuals who were sentenced for a serious violent offence prior to
the introduction of public protection measures in April 2005;
individuals whose risk level was not considered high enough to warrant
an indeterminate or extended sentence at the point of conviction, but
who are now deemed to be at risk of causing serious violent harm, and
individuals whose determinate extended or indeterminate sentences for a
qualifying offence has expired but whose behaviour has come to the
attention of the police as being high-risk. By closing those current
gaps in supervision, violent offender orders will be an essential risk
management tool in addition to existing public protection
measures.
Mr.
Burrowes:
The Minister refers to gaps in supervision. Is
it not true that the genesis of the violent offender order was the
tragic John Monckton case, which caused great concern across the House
and among the general public? The response to that was the initiative
of the order. Is not the gap in supervision the result of a gap not in
legislation but in the resources going to the probation service to
enable the proper face-to-face supervision that the public and victims
should ordinarily get through a sentence imposed by a court? Should not
the focus be on proper supervision, licence provision and the like in
sentencing, rather than on extra
legislation?
Mr.
Coaker:
I have tried to make the point that violent
offender orders are supposed to be used where there is no other
supervisory arrangement available. They are to fill that
gap——for when somebody has finished their sentence,
licence conditions are over and there is nothing else left with which
to supervise or look after somebody. There will be a violent offender
order when a chief police officer believes that an individual poses a
risk, and takes the matter to the court. It will be when everything
else has finished and there is nothing else left. There may be some
people who are convicted offenders, who have committed specific
offences and who have acted in a way that suggests that they may pose a
danger to other individuals or to the public. This provision fills that
gap and that is why we have introduced these violent offender
orders.
5.45
pm
Mr.
Burrowes:
I hear the point that it is about when
supervision has ended, but is not the issue less about the fact that
the supervision period has ended than that the quality of supervision
is lacking? We need to look at how, within the time available, we can
have higher-quality and properly carried out supervision. That brings
us back to the Monckton case where that supervision was identified as
lacking. We need to deal with that gap, rather than saying that the
time has ended for licensed supervision, and moving on to another
order.
Mr.
Coaker:
That is a reasonable point—we must ensure
that any supervisory arrangements that are in place for somebody who
poses a risk are of high quality. It is a fair point, and one that we
are all determined to improve on. However, when the period of licensed
supervision is over, there is a gap. Therefore, whatever the quality of
supervision—and one would hope that it would be such that in
future there will be fewer people who pose a risk when it is
finished—there
still may be a problem with some individuals. The violent offender order
is designed to fill that gap. I take the hon. Gentleman’s point,
but it does not mean that violent offender orders are not necessary in
any circumstances.
We have
consulted a wide range of stakeholders in drafting the provisions and
violent offender orders have received broad support. They are intended
to protect the general public, or any particular member of the public,
from the risk of serious physical or psychological harm caused by an
individual committing one or more specified serious offences. The
orders will be made on the basis of an up-to-date assessment of risk at
the end of an individual’s sentence. Violent offender orders
will enable the court to impose negative requirements, such as
prohibitions, restrictions or conditions. The conditions of an order
will be determined on the basis of risk, and imposed only when a court
is satisfied that they are necessary to manage the behaviour of an
individual in order to protect the public from the risk of serious
violent harm. A violent offender order will be effective for at least
two years, unless it is deemed appropriate to renew or discharge it
before this time.
I repeat that
I do not believe that non-molestation orders are an adequate substitute
for violent offender orders. Non-molestation orders can be made by
courts to protect an individual from molestation by a known person.
That person must essentially be within the family sphere. The
individual requiring protection will always be connected to the
offender, for example a current or former spouse, cohabitant or
relative child. The key point is that non-molestation orders must be
used specifically to protect named persons. Currently, they can only be
only be applied for by the person that is at risk of harm or on their
behalf by a person who is associated with the offender. My hon. Friend
the Member for Leyton and Wanstead suggests that a chief police officer
should be able to apply to court for a non-molestation order for the
benefit of an individual. There are undoubtedly wider benefits to such
an amendment, particularly as it would mean that additional protection
could be granted to individuals who are either unwilling or unable to
apply for a non-molestation order themselves—for example, when
an individual is too afraid to apply for an order.
I say to my
hon. Friend the Member for Leyton and Wanstead and the hon. Member for
Somerton and Frome that while the non-molestation order is not
something that could be used instead of a violent offender order, the
point made by the hon. Member for Somerton and Frome about others being
able to apply for non-molestation orders is an idea that could be
explored further. It is an extremely valid point and something that I
am willing to look at to see how it could be taken forward.
The purpose
of the violent offender order is to provide a means of continuously
protecting the public from the most dangerous violent offenders who
still present a high risk at the end of their sentence. It would be
used when there are no other means for public protection authorities to
manage that risk.
Mr.
Burrowes:
The Minister says that breaches of the
order would lead to some 20 additional prison places
being required, but the National Association of Probation Officers
estimates that around 3,000 additional places will be required in any
one year. There is a big difference
between 20 and 3,000, so is not an independent assessment of the
provisions necessary to clarify accurately the potential increase in
the prison population to provide confidence that there is capacity to
deal with violent offender orders? The point also relates generally to
other parts of the
Bill.
Mr.
Coaker:
There is a huge discrepancy, as
the hon. Gentleman said. We used the template of sexual offences
prevention orders to guide us, and we made the best estimate. The idea
is not for someone to breach the orders. They are preventive orders and
I do not believe that many people will breach them, but we must have a
sanction. We have used our best estimate and other civil orders to
guide us. We estimate that 100 such orders might be made, requiring
approximately 20 prison places. We will continue to keep the matter
under
review.
I
have told my hon. Friend the Member for Leyton and Wanstead and the
hon. Member for Somerton and Frome that I want to look at the idea of
who can apply for non-molestation orders, and I hope that my hon.
Friend will withdraw his
amendment.
Harry
Cohen:
Notwithstanding the nuclear nature of one of the
amendments, they are probing amendments, and provided
an opportunity to discuss violent offender orders and their
implications. I am grateful to the Minister for his explanation. I am
also grateful to the Minister for agreeing to explore the possibility
of extending non-molestation orders and who can apply for them. I am
pleased that he picked up that point. I noted that the Minister said
that the provisions of the order imposed will be specific and
proportionate. That will fall to the authorities, and it is important
that they take that on
board.
Mr.
Coaker:
Obviously, we intend to issue guidance on clause
83(1)(a), and it will make it clear that the orders must be
proportionate. My other point is that the courts must act in a way that
is consistent with human rights
legislation.
Harry
Cohen:
I appreciate that as well. I beg to ask leave to
withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mo
tion
made, and Question put, That the clause stand part of the
Bill:—
The
Committee divided: Ayes 9, Noes
7.
Division
No.
5
]
Question
accordingly agreed to.
Clause 83
ordered to stand part of the Bill.
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