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(10A) Before making regulations under this Article, the Secretary of State must publish a draft of the regulations and consider any representations made to the Secretary of State about them.. (Mr. Alan Campbell.)
Mr. Dismore: The new clause was tabled by the hon. Member for Oxford, West and Abingdon (Dr. Harris), my hon. Friend the Member for Ealing, Southall (Mr. Sharma) and me on behalf of the Joint Committee on Human Rights in order to give effect to the recommendations we made in our 15th report. The Government responded to them only today. The amending provisions relate to the Bills treatment of gang-related violence. In the report we expressed our concern about the fact that provisions highly significant for individual liberties and human rights appeared not when the Bill was first published, but only in the later stages of the Committee proceedings.
During the Committee stage, the Government explained that provisions were needed because of a judgment by the Court of Appeal in the case of Birmingham city council v. Shafi. In that case, the council had sought civil injunctions against individuals who were alleged to have been involved in gang-related offences and public nuisance. The Court of Appeal noted that the terms of the injunctions sought were identical, or almost identical, to those of antisocial behaviour orders. It noted the striking feature that the local authority sought ASBOs against those aged under 18 and injunctions in identical terms against those aged over 18. The court recognised that Parliament had laid down a number of specific safeguards applying to the grant of ASBOs, some of which might not apply to injunctions granted at common law.
the detailed checks and balances developed by Parliament and in the decided cases
would apply. The court considered that it would be bizarre if a different standard of proof applied. As the order sought by the council was essentially the same as an ASBO, the lower court had been correct to apply the same standard of proof that applied in proceedings for an ASBO. The court had to be sure that the defendants had acted in the antisocial way alleged. The court recognised that there might be cases in which the injunctions sought were not identical, or almost identical, to an ASBO, or which involved more complicated facts. In such cases, the civil standard might apply.
The first issue that we raised was the fact that there was no definition of what constituted a gang in the first place. Government amendment 60 deals with that, although I question whether it is sufficiently precise. I note that the Opposition have tabled an amendment on the same issue which is a little more precise. We were told that guidance would be laid before Parliament as soon as possible before the legislation came into force, for the purpose of interpretation.
We were anxious to ensure that the provisions were not open-ended, and that they were necessary. Given the findings of the Court of Appeal, we asked the Minister to explain why the existing law was inadequate, and why it was proposed to use civil law to tackle what was effectively criminal behaviour. We requested an explanation of why the Government had opted not to require those seeking an injunction to explain why criminal prosecution in an individual case was impossible. That is the purpose of amendment 38. In our view, the Government have failed to provide a satisfactory explanation of the need for the provisions, including the rather bizarre clause 32(3)(b), which is apparently intended to protect the respondent from himself. The Government have not published any statistically robust evidence showing why the existing law is inadequate.
Mr. Iain Duncan Smith (Chingford and Woodford Green) (Con): I am not here to defend the Government. My organisation, the Centre for Social Justice, produced an important report on gangs and gang-related violence after its members had travelled to Boston, Los Angeles, New York, Liverpool and Glasgow to see what was going on in those places. A key principle, which I think the Government have now generally adoptedalthough there are some faults in the arrangementis that the provision is required for the simple reason that we are trying to get ahead of the problem. We need to identify people who may be at risk of violence, and who may end up being in street gangs. Where this has been applied, it has worked: it has worked in Boston and Los Angeles, for instance.
Mr. Dismore: I shall come to the points that the right hon. Gentleman has made. He has given us some evidence in support of what the Government propose, but so far we have not been given such evidence by the Government. All that we have been given are anecdotal explanations based on the Birmingham cases. If there is robust evidence from overseas, I am surprised that the Government have not produced it in response to our report or our earlier correspondence with the Minister.
The Minister told us that using the criminal law to deal with gang-related violence remained the preferred option. However, the Government considered it not advisable to make it a prerequisite for the Crown Prosecution Service to explain why it was impossible to charge an individual beforehand. The Minister said that the Government were clear that injunctions should not short-circuit the criminal justice process, but we were very concerned about the issue.
In earlier reports, we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside the criminal process, and which avoid the appropriate standards of fairness. Gang injunctions constitute another step in that direction. In our view, the civil law is an inappropriate tool to deal with what is effectively criminal behaviour. We are pleased to note the Governments commitment to use of the criminal law as the preferred option, but it worries us that the Bill does not make that explicit, and that there are no safeguards in the Bill to ensure that it occurs. In particular, there is no requirement for those seeking an injunction to demonstrate that criminal prosecution has been considered as an option first.
We recommend in amendment 38 that the Bill be amended to impose an express duty, throughout the period during which the injunction has effect, to ensure that the question of criminal prosecution is reviewed and is kept under consideration when there is a reasonable prospect of successful prosecution of the subject of the injunction. We have raised a similar issue time and again in relation to control orders. It seems that once a control order has come into effect, little effort is made to prosecute those involved.
I am particularly concerned about the impact of the Bill on children and young people, as amendment 39 makes clear. It is in this regard that I consider the Governments response to be weakest. We welcome the Governments commitment not to amend the Bill to cover children and young people explicitly. However, we do not agree with their contention that part 4 will not be applied to children or young people. We recommend that the Bill be amended to make that clear, and to set a minimum age limit of 18 for respondents.
Mr. Duncan Smith: We spent a lot of time on our report. One of the reasons why we recommended no age limit of 18 was that street gangs, as defined in places such as America, Liverpool and Glasgow, consist of people ranging from children of 11 to men of 26. It is crucial to use civil orders to deal with those people in order to take them out of the gangs. If we wait until they are 18 and on a criminal charge, we shall have to wait until they have done what they intend to do, which will make the position much more dangerous.
Mr. Dismore: The problem with the right hon. Gentlemans contention is that the process is likely to bring the law into disrepute. Injunctions against those under 18 are unenforceable. According to the response that we received from the Government today,
Injunctions must be enforceable and it is unlikely in practice that these injunctions would be enforceable for under 18s because the court cannot fine someone without a source of income.
a court cannot sentence an individual under the age of 18 to detention...for a civil contempt of court. Therefore where when a gang member is under 18 and is without an independent and
legitimate source of income, the court would be unable to sanction any breach and so would not grant an injunction.
there may be occasions where it would be both appropriate and enforceable,
whilst these instances are likely to be rare,
they want to retain their provisions in the Bill. However, we have not been given an example of where those provisions would be enforceable. If injunctions cannot be enforced, or are refused because they cannot be enforced, there is no point in having the power in the first place. It will simply bring the law into disrepute.
The other issue that concerns us particularly, as is reflected in amendment 40, is the applicable standards of due process. Breach of an injunction is a civil offence which is treated as civil contempt of court, but must be proved to the criminal standard of beyond reasonable doubt. In the leading ASBO case, although ASBOs were considered to be civil orderslike injunctionsthe House of Lords upheld the argument that the proceedings relating to ASBOs should carry the criminal standard of proof. Magistrates should apply that standard: they must be sure that the individual in question acted in an antisocial manner before they can make the order. We believe that similar standards should apply to injunctions which are very akin to ASBOs.
The analogy with ASBOs is particularly acute given the judgment of the Court of Appeal in the Shafi case, which recognised that ASBOs in identical terms could be sought. Some of the proposed injunctions are identical to or more severe than ASBOs, which require proof on the criminal standard. If they are to be more demanding than an ASBO, the argument that they should require the criminal standard of proof is all the stronger.
David T.C. Davies: The hon. Gentleman must have seen in his surgeries, as I have in mine, numerous people who have been victims of antisocial behaviour on the part of gangs, collections of young people, or whatever we want to call them. Why is he trying to make it difficult to enforce order and peace for the benefit of the law-abiding community?
Mr. Dismore: That is not the point. What I am trying to do is ensure that when we introduce draconian powers, we make certain that the individual concerned is subject to those draconian powers. That is the view that the courts have expressed time and again. We should bear in mind the debate in the country more widely about civil liberties, for this is a civil liberties argument. The hon. Gentleman suggests that we go down the route of the civil standard and conclude that, on the balance of probabilities, people have been involved in extremely violent criminal behaviour.
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