Mr.
Coaker: Unless I hear to the contrary, my understanding is
that religion is a matter for the courts to determine, but it might be
something that we need to include in the guidance. There is guidance,
which has to be published, about how the new clauses are implemented by
the courts. Maybe we should include something about religion in the
guidance to address the concern put by my hon.
Friend.
Ms
Keeble: I am grateful to my hon. Friend for that
clarification, but will there be any consultation about that? When
Rastafarianism was popular among young people, the conflict over what
people wore and what they carried—badges and suchlike—was
enormous, because the religion was not
recognised.
Mr.
Coaker: There will be consultation about the code of
practice, but I take the point made by my hon. Friend, which is a good
one. I want the measure to be effective, so we need to reach a
consensus and clarify what constitutes a religious item, or religious
clothing, and we will do so within the code of practice.
My hon.
Friend asked what sanctions are available. The initial order is made on
the balance of probability. Prohibitions attached to the order can be
subject to the power of arrest, although one can go to the court and
ask for a warrant to arrest someone if there is a belief that a
prohibition has been breached. Unlike an antisocial behaviour order, if
there is a breach of a prohibition, there is a civil penalty of up to
two years, which is available to the courts and, importantly, there is
not a criminal record for any breach.
It is a shame
that the hon. Member for Oxford, West and Abingdon is not here, because
I am sure that that would be one of his questions—any breach has
to be proved to a criminal standard, not to the civil standard.
The civil standard is for the granting of the order and with any
breach—the court process that takes place after that—but
any proof has to be to a criminal standard or “beyond reasonable
doubt”. I hope that that is helpful to my hon. Friend the Member
for Northampton,
North. Ms
Keeble: If the order is breached, could someone get a
custodial sentence? It is really important that we do not get gangs
reforming in, for example, secure training centres and that arguments
do not continue there. I would be very concerned about
that.
Mr.
Coaker: Yes—there can be custodial sentences. The
first one is for up to two years, so custodial sentences can be given.
As I have said, proof has to be to a criminal standard. The person
concerned does not get a criminal record, but my hon. Friend has made
an important point about
custody. If
injunctions are to be an effective tool for preventing gang violence,
the police must be able to take swift action. New clause 13 enables the
power of arrest to be attached to any of the prohibitions or to some of
the requirements of an injunction. That will enable the police to
arrest, without warrant, any individual suspected of breach. That is
dealt with further in new clauses 20 and 21.
New clause 14
is a short clause, which simply sets out the fact that applications may
be made to the court by the police, including the British Transport
police, or a local authority. It is essential that local authorities
are able to apply for those injunctions, as they have shared
responsibility for managing crime and disorder, and have developed
skills and expertise in obtaining civil injunctions. The police are
often in a better position to obtain injunctions immediately,
particularly following critical incidents when intelligence suggests
that there might be an imminent reprisal. We know that gangs travel
from city to city, so it is important that the British Transport police
can obtain injunctions to protect users of the public transport
network.
9.30
am New
clause 15 requires the applicant to consult other relevant authorities
before applying for an injunction. The hon. Member for Hornchurch has
tabled an amendment relating to the issue of who should be consulted,
so it might be helpful to mention that now rather than later. I urge
him to withdraw the amendment, but I will reflect on the issue it
raises, because there is a need to consider whether the consultation
should be broader than that set out in the new clause. His amendment
proposes that the primary care trust and various health agencies be
consulted, and I give him a commitment that we will reflect on that
proposal. The
applicant must consult any other local authority and chief officer of
police whom they consider it appropriate to consult. The purpose of
that provision is to encourage the two key agencies involved in
managing gangs to co-operate in formulating a co-ordinated approach to
enforcement and exit strategies for gang members.
New clause 16
will make it possible for a court to grant an interim injunction in the
first instance without the presence of the respondent—that is
known as an application without notice. Police can receive intelligence
that a retaliation attack might occur, sometimes within 24 hours, so by
allowing the applicant local authority or police force to obtain an
interim injunction without giving notice to the respondent, that attack
can be prevented swiftly and effectively. I know that the hon. Member
for Hornchurch has visited Manchester, where it has been said that it
is essential that the police are able to act really quickly in some
cases to prevent serous violence. The applicant would not have to
consult relevant local authorities or police forces before making such
an application, as that would not be practical. They would, however, be
required to consult before the full hearing. As I have said, that
provision is absolutely necessary to allow the use of injunctions as a
preventive tool. When a court
cannot make full fines, or has to adjourn for further information
and/or evidence to be heard, it may make an interim injunction. New
clause 17 relates to an interim injunction made on notice to the
respondent. The test for granting such an interim injunction is that it
is “just and convenient” to do so. The court will not
have the power to grant a prohibition or requirement until there is a
further order of the court. The court would typically grant an interim
injunction when it needs to adjourn the hearing to a later
date. New
clause 18 is similar to new clause 17, but it relates to interim
injunctions that have been granted without notice. All injunctions must
meet the conditions set out in new clause 11. New clause 18 provides an
additional safeguard for interim injunctions granted without notice and
requires the court to consider it necessary, rather than just and
convenient to do so. That makes it clear that if the application is not
urgent it should be made on notice to the
respondent. The
Government consider that it would be unfair for an interim injunction
made under those circumstances either to include prohibitions or
requirements to be in force until further order or to have the effect
of requiring the respondent to participate in particular activities.
Therefore, those have been specifically excluded. New clause 19 makes
provision for an injunction to be varied or discharged. That is
extremely important and makes the provision different from antisocial
behaviour orders. Such action could be taken on review or if an
application for variance or discharge is made either by the original
injunction application or by the respondent. The purpose of the review
set by the court is to examine whether the injunction’s existing
provisions are appropriate, whether the respondent is complying and
whether it is necessary to add to, amend or discharge the
injunction.
We have made
provision for the respondent to apply to the court for variation or
discharge, which allows them to put the case to a court that they have
changed their behaviour, which is what we want, and should no longer be
subject to such conditions. It also acts as a safeguard against unduly
punitive prohibitions or requirements. Before an application for
variance or discharge is made by the person who applied for the
injunction, they must notify anyone they consulted under new clause
15. Members
of the Committee will recall that new clause 13(5) allows a
court to attach the power of arrest to prohibitions or certain
requirements, but that will not be available for a requirement that an
individual participate in positive activities. New clause 20 relates to
the making of such an arrest “without warrant”. It
provides that a constable “may arrest” someone who is
suspected of being in breach of an injunction. If an arrest is made, the
constable must inform the person who applied for the injunction, and
ensure that the respondent is brought before a court within 24 hours.
That ensures that a suspected breach can be dealt with promptly and
that an individual can be remanded in custody if necessary—a
point made by my hon. Friend the Member for Northampton, North. New
schedule 2 deals further with the power to
remand. Although
the power of arrest can be attached to most prohibitions or
requirements, it is possible that the court will not do so. If it were
suspected that a prohibition or requirement had been breached, and
there was no power of arrest attached, the respondent can only be
brought before the court on notice. This notice has to be 14 clear
days. New clause 21 allows the person who applied for an injunction to
apply to a relevant judge for a warrant of arrest if they consider that
any prohibition or requirement has been breached. The judge must have
“reasonable grounds” to believe that the respondent is in
breach before issuing a warrant. The purpose is to allow the applicant
to apply to the court for a warrant, which would enable them to deal
with a breach rapidly, particularly where there is no existing
provision to do so. If someone is brought before a court but the matter
is not disposed of, the court may remand that person, as set out in new
clause
20. New
clause 22 provides that the respondent may be remanded for a medical
examination and report if the court “has reason to
consider” that that is necessary. This applies only to a
situation where a respondent has been brought before a relevant court
for a suspected breach, having been arrested. It is irrelevant whether
they have been arrested with or without a warrant. The relevant courts
do not have the power to remand individuals for medical examination,
unless specified. Therefore, this new clause is necessary to allow the
courts to ensure the physical and mental well-being of the
respondent. New
clause 23 inserts new schedule 2, which makes provisions for remand in
relation to an arrest made under new clauses 20 and 21. New clause 24
provides that the Secretary of State
must “issue
guidance relating to injunctions under this
Part.” The
Secretary of State must also publish that guidance, which brings me to
another point made by my hon. Friend the Member for Northampton, North
made. I want to consider the measure a little further, to decide
whether we should have to lay it before Parliament, and so on. I will
look at new clause 24, with respect to how we issue and publish the
guidance. This
guidance will provide detailed clarification on how various provisions
of the injunction should be used. It will set out the appropriate
situations in which an application to the courts could be made. It will
also explain how police and local authorities should consult and work
together to manage the injunction process. The Secretary of State will
be able to revise any guidance issued, but those revisions must be
published. Applicants must have regard to any
guidance. New
clause 25 enables rules of court to provide that powers conferred on
county courts are exercisable by judges of the county court and
district judges. It also stipulates that rules of court may allow for
appeals to be made
“without giving
notice”—
that is, notice of the
appeal— “to
the
respondent.” New
clause 26 clarifies the interpretation of particular terms used in the
new provision. New schedule 2 applies when the court has the power of
remand under new clauses 20 and 21. The court may remand the individual
in custody or on bail; a remand on bail may be on conditional bail. The
maximum period for which an individual may be remanded in custody is
eight clear days, unless both the individual and the applicant agree
otherwise. A court may further remand the individual. A court may order
the further remand in custody of an individual in their absence if the
individual is unable to attend court for their further remand hearing.
The court may order the taking of a recognisance before the individual
is released on
bail. I
have mentioned the second amendment tabled by the hon. Member for
Hornchurch, and I will look at the issue of who should be consulted.
There is a real debate to be had about amendment (a) to new clause 11,
which deals with the issue of how a gang is defined. We have put a
definition in new clause 11, and we have said that it is for the courts
to decide whether violence is “gang-related violence”. In
his amendment, the hon. Gentleman is tries to define a gang. He talks
about “a discernible group”, which must be engaged in
organised “criminal activity”, and various other
features. I do not disagree with any of the points that he makes, nor
do I think that there is any point of difference between us on this
issue.
It is
possible, however, that something else may crop up in a year or two and
the court will not have the flexibility because we have defined it in
that way. In all honesty, I have tried to think of something that would
not come under one of those four headings, and it was difficult, but I
am reluctant to constrain the courts, then find in a year that
something has occurred that is beyond the definition. However, I do not
think that that is point of difference. I will slightly tease the hon.
Gentleman. I am the one who is often criticised by Liberty, but I could
not help noticing that it said:
“We do
not, however, believe that additional amendments proposed, introducing
a definition of ‘gang’ are satisfactory. Those amendments
would still mean that any group of people that have an
“identifying organisation feature” would be captured by
this provision, which could include the local boxing
group.”
I do not think that
that is true, because the court would not do such a
thing. It
is interesting that in his report, the right hon. Member for Chingford
and Woodford Green said that all the conditions should be met. I note
that the amendment tabled by the hon. Member for Hornchurch says that
just one of the conditions should be met. The debate on how to define a
gang, even for people who agree, is fraught with
difficulty.
James
Brokenshire (Hornchurch) (Con): I welcome the
Minister’s approach in explaining and setting out his case. I
understand the intention and the focus of the new clause on the violent
side of gang activity. The point that I come back to, which I will
develop further in my own comments, is that we need to ensure that the
powers that are being created are structured and focused, such that,
over time, they do not become applicable to people whom he and I would
not define as gangs in this
debate. That is a cause for concern, and that is why I tabled the
probing amendments and advocated the suggested
changes.
Mr.
Coaker: I do not disagree with that, and I will reflect on
it. We are all trying to get at the serious individuals who are part of
an organised group, who wear colours, have territory, live according to
their own rules, do not care about society’s rules and so on. My
initial thinking is that if we define it as “gang-related
violence”, the court, in its wisdom and sense, would do what is
implicit, but the hon. Gentleman is trying to make it explicit. I will
reflect on the matter and see whether we need to do more to ensure that
the issues that the hon. Gentleman is worried about do not
arise.
I shall
finish where I started. I think that this is, if not the most important
discussion that we have had, certainly on a par with anything else.
Birmingham’s experience of using the injunction shows that it
reduces violence. The mothers of gang members were asking for
injunctions to be placed on young people, because they saw their effect
in reducing violence and serious violence. I know that the courts took
the attitude that they did, which is why the clauses were late, and we
are taking the first opportunity to clarify the law, so that the
injunctions are available across the country to help to prevent the
most serious violence. The effect of the injunctions will be that
people who would have been killed or badly attacked, will not be and
that people who would have ended up in prison and had their lives
ruined, will not. I apologise to the Committee for taking so long, but
it is an important debate. I wanted to introduce it in that manner and
put in conclusions, as well as putting what the new clauses are about
on the
record.
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