Criminal Justice and Immigration Bill

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Clause 85

Applications for violent offender orders
Amendment made: No. 212, in clause 85, page 59, line 13, at end insert—
‘(3A) Before making an application under this section in respect of a person who will be under 18 at the time of the application, the applicant must consult any member of a team established under section 39 of the Crime and Disorder Act 1998 (c. 37) (youth offending teams).’.—[Mr. Coaker.]
Question proposed, That the clause, as amended, stand part of the Bill.
Mr. Burrowes: The Justices’ Clerks Society has made a point about violent offender order applications and the police being the office holders who make the complaint to the magistrates court. I asked whether it would be more appropriate for the Crown Prosecution Service, which is independent of the investigation, to make the complaint, and that is my question to the Minister.
Mr. Coaker: We have used the procedures and processes for antisocial behaviour orders because we feel that they are appropriate for the violent offender orders. The chief police officer is the best person to make the judgment, because their liaison with all the statutory agencies will be greater than that of the Crown Prosecution Service. In that sense, the chief of police will be the most appropriate individual.
Question put and agreed to.
Clause 85, as amended, ordered to stand part of the Bill.

Clause 86

Making of violent offender orders
Mr. Burrowes: I beg to move amendment No. 364, in clause 86, page 59, line 29, after ‘satisfied’, insert ‘beyond reasonable doubt’.
The Chairman: With this it will be convenient to discuss amendment No. 365, in clause 88, page 61, line 8, after ‘satisfied’, insert ‘beyond reasonable doubt’.
Mr. Burrowes: The amendments raise an issue that has been debated before on the Floor of the House and in Committee at some length. I do not propose to take all that long—I shall highlight the salient and significant issues that we must consider. No doubt the other place will want to consider them in some depth.
Amendments Nos. 364 and 365 deal with the burden of proof to secure a violent offender order and an interim violent offender order. The amendments raise the problem of the burden of proof of a civil order.
Mr. Coaker: Standard of proof.
Mr. Burrowes: Standard of proof, sorry. I am grateful for that intervention.
Mr. Coaker: I am always pleased to help with legal phraseology.
Mr. Burrowes: The Minister is using again the joke that he made during the passage of the Serious Crime Act 2007. No doubt he will want to use it again as we examine the legal niceties of the standard of proof.
To try to help the Minister curtail his response, I can tell him that I know that he will say that it is unnecessary to state explicitly in the Bill that the standard of proof should be “beyond reasonable doubt”, and that there is a sliding scale of burden of proof dependent on facts and criminality. We might well wish to consider the case of McCann, in which consideration was given to the burden of proof in relation to antisocial behaviour orders, because it is relevant.
It is important to incorporate in legislation the required standard of proof. We need to clarify that burden so that, when lawyers and others come to practise it and courts consider making an order, they know clearly where the House is coming from. That is important for a number of reasons. Violent offender orders will have a significant impact on individuals’ liberty, not least when one considers the penalties available for a breach of the order: in a magistrates court, a 12-month sentence of imprisonment or the statutory maximum fine; or, on indictment in the Crown court, a maximum of five years, a fine, or both.
We must consider whether there is a need to state the proof needed in the Bill, or whether we can leave the matter to a sliding scale that will be subject to various vagaries. The concern is the time available for the order. It is a minimum of two years. How long will an order last? One sees that it will be renewable indefinitely. That must lead us to be cautious about going down the route of civil law by way of a quasi-criminal remedy.
There is concern that the courts might seek to use the balance of probabilities as their level of proof. They might consider whether it is more likely than not that it is necessary to protect the public from the risk of serious violent harm. That is important, because the definition of the purposes of the order in clause 83(2) is wide. We need as much clarity in the Bill as possible. No new offence may be committed after the appropriate date, and we need greater clarity, given the consequences of any breach.
When delivering the McCann judgment on the standard of proof upon which both sides of the argument may wish to rely, Lord Steyn said:
“in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.”
That was section 1 of the Crime and Disorder Act 1998, under which ASBOs can be made. That was echoed by others, notably Lord Hope, who said:
“I would hold that the standard of proof that ought to be applied in these cases to allegations about the defendant’s conduct is the criminal standard.”
We need properly to recognise those judgments, not least because of the seriousness of violent offender orders. There are significant restrictions that are not necessarily explicit in the Bill, but will have an impact on an individual’s liberty. It is important to reflect that properly and to achieve clarity, not only because of the seriousness of the orders and the impact of a civil order being a quasi-criminal remedy, but because of the general way in which the Bill deals with assessments.
Liberty has registered its concern about the process leading to the making of an order. An order will be made following an assessment by a court of whether the risk posed by an offender justifies an order to protect the public. Liberty argues that it will be based primarily on a psychological evaluation, rather than on proof of particular behaviour. The concern is that there should be greater clarity regarding the standard of proof. Given the seriousness of the order and its impact on the individual, that should properly be done by following the McCann judgment in the Bill and having a standard of “beyond reasonable doubt”, which the amendment would achieve.
Mr. Heath: I entirely associate myself with the comments of the hon. Member for Enfield, Southgate on amendment No. 364. We should have an appropriate burden of proof for the orders, which are effectively taking the place of criminal proceedings in a preventive way. They are something akin to a criminal injunction. The insertion of the words “beyond reasonable doubt” after “satisfied” would mean that the court would have to take proper cognisance of the evidence of propensity because that would be nothing more than propensity—there would be no evidence of wrongdoing, other than previous behaviour. As the courts are being asked to determine propensity, the condition needs to be in place.
I have more problems with amendment No. 365, which I should like to examine for a moment, if I may. Please advise me, Mr. O’Hara, if I stray too far into matters that should be discussed in the stand part debate on clause 88.
The Chairman: Order. Should that happen, I shall rule that we should move formally to the clause stand part debate. Do not feel constrained.
Mr. Heath: I am most grateful, because it is quite difficult to dissociate the two issues. Amendment No. 365 would also insert the words “beyond reasonable doubt” into a clause. The consequence of that change would be that a court would have to be satisfied beyond reasonable doubt that a person to whom an application related was a qualifying offender, but that is rather simple to establish beyond reasonable doubt. Given that the qualification is simply whether they have previously been convicted of a qualifying offence, it is almost a redundant issue. However, I understand the intention behind the amendment.
It worries me that the more one looks at clause 88, the more one realises that interim violent offender orders are not even to be based on any proof of propensity, as far as the courts are concerned, let alone an actual offence having been committed. Applications are to be made purely on the basis of previous convictions, and the court is asked simply to consider whether it is just to grant an order. It is interesting to consider under what circumstances a court would consider it just to do so, in the absence of any other consideration.
So, the court is asked to do two things: to establish whether the relevant person is a qualifying offender, and whether it is just to grant an interim order. I am concerned that although the interim orders have effect for
“not more than 4 weeks”,
they may be renewed on “one or more occasions”. So, in the absence of a substantive order being made, there could be a running interim order, which could produce the same effects as a full order, being renewed over several weeks, months or even years if the courts were so minded, although I do not believe that they would be.
My reason for putting the matter forward is because, although I entirely supported the initial premise of the hon. Member for Enfield, the more that I see how it would be applied to clause 88, the more I feel that there is something more inherently wrong with the interim violent offender order clause, even above and beyond what we have already debated in respect of the general violent offender orders. It is hard to see how the court will assess the justice provision within the clause in a way that is consistent with justice.
6.30 pm
Mr. Garnier: This is a genuine unprovoked intervention, not least because my hon. Friend the Member for Enfield, Southgate dealt fully with the issue. However, the matters raised by the hon. Member for Somerton and Frome lead me to mention again the concerns that I expressed about another aspect of the Bill. We are considering interim injunctions. The applicant says to the court, “While we get our evidence completely in order—and we have material to satisfy the court that this man will, unless he is constrained by various conditions, probably do the following—will you please freeze the position?”
It would be interesting to find out from the Minister whether the interim orders can be made only on an inter partes basis with both the complaint and respondent present or whether they can be made on an ex parte basis. There is probably a different way in which to describe the position when the applicant is there without the respondent. For an interim injunction, other than in defamation, the relevant expression that is used quite frequently is “the balance of convenience”. That could be where the balance of justice lies, but the Government must tell us what precisely they intend by the interim violent offender orders. Is it anticipated that they will be made on a continuous basis, allowing the Government without having foolproof—although reasonable—grounds on which to base their application? They should be made more or less on a rolling basis. Are they limited to a certain number?
Mr. Burrowes: No, it is an open chain.
Mr. Garnier: There we are; the position gets worse and worse. I am amazed that we do not have interim nuclear facilities orders or interim prostitution orders. I think that I have made my point. We need to be sure what the Government want to do. If they are making a genuine attempt to prevent something from getting worse while evidence is being brought to court, that is understandable, although not very attractive. The combined arguments of my hon. Friend the Member for Enfield, Southgate and the hon. Member for Somerton and Frome require careful responses from the Government and some rather better thinking than is evident from the Bill.
Mr. Coaker: The interim violent offender orders are designed to be available to the court as an emergency measure. Mr. O’Hara, I know that a later clause covers such matters but, given that I have been asked about such matters, perhaps it is appropriate if I make my response now.
The Chairman: I shall declare my intention when we reach clause 88 stand part. That seems the best way in which to deal with a difficult situation.
Mr. Heath: I entirely accept that argument; my difficulty is with the question of the test that the clause requires the courts to apply, because it is by no means clear what test is to be applied to assess whether an interim order should be made. As far as a full order is concerned, there is at least clarity as to the matters to be taken into account and how that is to be done, although my party would prefer a strengthening of the provisions in that regard. Under clause 88, however, those matters do not apply.
Mr. Coaker: The test is whether, in the court’s view, an individual poses a serious risk to another person or to the public. The evidence to demonstrate that would have to be put before the court before an interim order could be made. The order is an emergency measure that would be available for the courts to impose temporarily while a full violent offender order was being applied for.
I respect the positions that have been set out by the hon. Members for Somerton and Frome and for Enfield, Southgate, but let me restate what I said about violent offender orders: there are clearly differences between us. That emerged in discussions about serious crime prevention orders during passage of the Serious Crime Act 2007, when there was disagreement about the standard of proof that should be applied. The Government considered that, as the orders should be civil orders, the relevant standard was the civil one, whereas the hon. Gentlemen thought that the standard should be the criminal test of reasonable doubt. The debate is similar this time.
Mr. Heath: Let us set aside our differences over whether violent offender orders should be made at all. I would understand the Minister’s argument if the conditions set out in clause 85(2) both applied in relation to interim orders. That provision requires additionally that the person has
“since the appropriate date, acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of the person.”
If that requirement applied to applications for an interim order, evidence would have to be presented for an interim order in the same way as for a full order, which is exactly what the Minister said, and I would understand that he was suggesting that the same test should be applied. However, the requirement is absent from clause 88, so I ask the Minister to explain to us why a different test should be applied, given what he has told us about the evidential test for the making of an interim order.
Mr. Garnier: I am sorry to cut across my hon. Friend the Member for Enfield, Southgate, who has dealt with this point with great—
Mr. Heath: Aplomb.
Mr. Garnier: That will do very well, yes. The debate is throwing up quite a number of knotty problems that the Government need to be clear about before we put the clause to bed. The comparison between clauses 85 and 88 is worth exploring. In any event, we need to know whether the application for an order will be made orally, with the evidence also being oral and subject to cross-examination. Alternatively, will it be on the basis of statements? Is a police officer simply going to read from his notebook or will there be verified statements or sworn affidavits that are not susceptible to cross-examination?
In order to fulfil the conditions of clause 85(2)(b), it has to be shown that the person has
“acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of that person.”
Will we therefore be looking for more than the fact that the designated offence has occurred? Clause 88 deals with interim violent offender orders, and subsection (3)(b) states that if the court
“considers it just to do so, the court may make an interim violent offender order in respect of the person containing such prohibitions, restrictions or conditions as the court considers necessary for the purpose of protecting the public from the risk of serious violent harm caused by that person.”
What is the material? Is it evidence that that person, since he has been released from prison, has done something that leads the applicant to suspect that he might do something and, therefore, needs to be prohibited from going from place A or talking to person B? Or is the evidence of a rather higher level, which clause 85(2)(b) seems to imply but is not clear about? Those differences need to be resolved with regard to the nature of the evidence and how it is presented to the court, which may or may not grant the violent offender order. Whether the respondent should know in advance that he is either going to be subjected to such an order or has a right to appear and argue against the evidence must also be considered.
Mr. Coaker: Clearly, we will put the guidance out to the courts in the normal way that they receive guidance on how to process all sorts of different procedures. With regard to evidence, my understanding is that one would not expect evidence in such matters to be oral. One would expect written evidence also to be made available to the courts so that judgments can be made with regard to it. We intend to ensure, through guidance, that many of the points that the hon. and learned Member for Harborough has made are covered.
On the standard of proof, as I said earlier to the hon. Member for Enfield, Southgate, we used the standard of proof argument that was used in the McCann judgment. We believe that that judgement, which was made in the House of Lords, is the appropriate one to use. Although it referred to antisocial behaviour orders, it was clearly stated that proceedings were civil under domestic law, that they complied with the European convention on human rights and that they were civil orders rather than criminal orders.
When it came to the actual standard of proof that was available, the hon. Member for Enfield, Southgate quoted from the judgments. The judgment stated:
“Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable.”
I do not disagree with his view. Lord Hope said:
“it is not an invariable rule that the lower standard of proof must be applied in civil proceedings. I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.”
We went through that and said that the judgment that we use from the House of Lords with regard to civil orders, which we would expect to be applied to violent offender orders, demonstrates that there is a sliding scale and that a standard of proof virtually indistinguishable from the criminal standard should be the standard of proof that is used. I put that on the record with regard to violent offender orders, as I did with regard to serious crime prevention orders.
Mr. Garnier: Is hearsay evidence admissible in such circumstances?
6.45 pm
Mr. Coaker: Yes. Again, that was part of the McCann judgment, which stated:
“Having concluded that the proceedings...are civil”,
it follows that hearsay evidence is admissible
“under...the machinery of the Civil Evidence Act 1995 and the Magistrates’ Courts (Hearsay Evidence in Civil Proceedings) Rules 1999”.
The McCann judgment covers the situation. We would expect the way in which the McCann judgment laid out the standard of proof for civil proceedings to be used in respect of violent offender orders.
Amendments Nos. 364 and 365 both relate to the standard of proof required for court decisions on violent offender orders. Currently, before making a violent offender order, a magistrates court must be satisfied that the person is a qualifying offender and has, since conviction for the qualifying offence as set out in clause 83, acted in such a way as to make an order necessary for the protection of the public from the risk of serious violent harm. Amendment No. 364 requires that a magistrates court makes a violent offender order in respect of an individual only if satisfied beyond reasonable doubt that that is the case.
Amendment No. 365 makes the same change in the case of interim violent offender orders. Currently, before making an interim violent offender order, a magistrates court must be satisfied that the person to whom the main application relates is a qualifying offender, and must consider it just to grant an interim order while the main application is being determined.
We have had a considerable debate on the standard of proof. The hon. Member for Enfield, Southgate believes that we need a criminal standard in the Bill, but we do not wish to include one for what is a civil order. We believe that the McCann judgment sets out clearly that the standard of proof for violent offender orders should be virtually indistinguishable from the criminal standard.
With those remarks, and a reminder to the Committee that violent offender orders are preventive not punitive—that is something that we need continually to remind ourselves of—I ask the hon. Gentleman to withdraw the amendment.
Mr. Burrowes: We have had an important debate on significant issues that go to the heart of concerns about the violent offender order. It was good to hear from the hon. Member for Somerton and Frome. I welcome his support for amendment No. 364 and take on board concerns about the detail of amendment No. 365. The intention is to apply properly the standard of proof for interim orders as well as full orders. The purpose of the debate was highlighted by the intervention of my hon. and learned Friend the Member for Harborough, which I welcomed, on the disparities between the burdens that are already in the Bill, let alone imposing a criminal standard that would improve the Bill.
The debate highlights why we need more clarity in the Bill. The Minister tries to provide reassurance through the McCann case and makes the point that the standard of proof is indistinguishable from the criminal standard, but that leads me to ask why that cannot be made explicit in the Bill. Then, soon after saying that the difference was indistinguishable, the Minister spoke about a sliding scale. That raised concerns.
Concerns raised during the passage of the Serious Crime Act 2007 remain. Given the fact that the violent offender order is a civil order, given the serious criminal sanction should such an order be breached, and given the restrictions that can be placed on individuals and the operation of the order, I wish to press amendment No. 364 to a vote.
Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 8.
Division No. 6 ]
Burrowes, Mr. David
Garnier, Mr. Edward
Heath, Mr. David
Hollobone, Mr. Philip
Walker, Mr. Charles
Coaker, Mr. Vernon
Cohen, Harry
Eagle, Maria
Hanson, rh Mr. David
Khan, Mr. Sadiq
Sharma, Mr. Virendra
Waltho, Lynda
Wilson, Phil
Question accordingly negatived.
Clause 86 ordered to stand part of the Bill.
Clauses 87 to 90 ordered to stand part of the Bill.
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