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.
Coaker:
In answer to the hon. and
learned Member for Harborough and the hon. Member for Somerton and
Frome, our intention in respect of interim
violent offender orders is for them to be available to the courts as an
emergency measure. I shall come to the standard of proof in a moment,
but it would be a matter for the courts to determine whether the orders
should be renewed. The Government or the chief police officer would not
renew them. We would assume therefore that although we can say, for the
purposes of argument, that four weeks, four weeks, four weeks and so on
would be possible, my view is that a court would not consider that
appropriate or
proportionate.
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.
Coaker:
The hon. Gentleman is right to point out that
there is a difference, so I will reflect on his point in the spirit of
my general approach to the
Committee. His point might be important. I am not saying that I will
agree with him, but I shall explain on Report whether a change is
needed. However, I hope that he will forgive me for repeating that the
whole point of interim violent offender orders is to put something in
place quickly if the court considers that there is a possible serious
risk to the public.
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.
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
]
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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