The
Chairman: I am sure that the Committee is very grateful to
the Minister for the full, clear and transparent way in which he has
put forward these important
issues. 9.45
am James
Brokenshire: May I say from the outset that the
Minister’s analysis of the problems experienced in some
communities in this country should give huge cause for concern? He
spoke of the violence and of the fact that many people living in
certain areas are terrorised by small but hardened and pernicious
groups of individuals. We must explore all avenues to protect those
communities and to prevent such individuals from conducting their
appalling
acts. There
has been a growth in gang violence in recent years. It is linked to gun
crime and violent crime in certain areas of the country. I agree with
the Minister that it does not happen everywhere. However, I understand
from talking to the police in certain areas that it is clear that there
is a problem with organised gang activity. We must be careful in
framing and defining the measures that are thought appropriate or
necessary to address such unacceptable behaviour, with its links to
violence, murders, shootings and other horrendous activities. That is
the context in which we are having the debate. We must ensure that the
proposals address the concerns that are rightly held and that they are
not subsequently used in more general and inappropriate ways that are
not intended by the Committee.
We should be
under no illusions; too many young lives are lost because of absurd
disputes over postcode territories or minor disagreements in which a
perverse notion of respect is seen to be challenged. The Minister was
right to identify the issue of structure and organisation, such as the
wearing of colours. Inadvertently wearing the wrong colour clothing in
a particular area can put one at risk of being attacked. It is
ridiculous and absurd when thought of in those simple terms, but that
is the reality in certain areas of our country. Simply by wearing a
particular colour in a particular area, a person can put themselves at
risk of being shot or attacked. Sadly, some recent cases have brought
that into stark
focus. Equally,
simply living in a particular area can mean that one is deemed to be a
member of, or associated with, a particular gang. A person who is in no
way part of a gang can be at risk of being attacked or drawn into gang
violence simply because of the location of their home or family. What
angers me the most is that many innocent people are drawn into these
violent situations by the quirk of fate of where they live.
There is
often very clear identification. People know the names of the gangs and
who the gang members are. However, they are terrified and intimidated
and so will not come forward. We see the perverse situation that some
people who get drawn into the criminal justice system feel that they
need to affiliate with a gang for their own protection because of the
area they come from. This sense of organisation or structure is perhaps
not fully or properly appreciated in the context of the debates we have
about gang activity.
I recognise a
huge amount of what the Minister has said in setting out the background
and laying the framework for the measures in these new clauses. We are
all sadly aware of the tragic number of teenagers who have lost their
lives in various parts of the country. The focus has obviously been on
London and the record number of people killed last year by a knife or
sharp instrument. Other acts of violence are equally applicable. I hear
clearly what the Minister has said about the use of dangerous dogs and
other actions taken by these criminal gangs.
The shocking
thing is that a lot of children are being denied their childhoods by
the activities of these appalling gangs. A recent report by
children’s charity NCH Action for Children highlighted the
situation of young people growing up with the real fear of becoming a
victim of crime, particularly violent crime. That is something that we
cannot accept in a decent society.
The Minister
and I—and, I am sure, other hon. Members—have been to
events where a lot of these issues have been brought into stark focus.
The Minister will remember the people’s march against knife
crime which we both attended on 20 September 2008, marching from
Kennington park to Hyde park for a rally. That was very powerful. It
always is when one meets families and friends who have lost loved ones
as a consequence of these appalling actions. It is difficult not to be
moved by their testimony. Listening to family, loved ones and close
friends as they speak about the situations they have been through, I am
always struck by their passion, humility and determination that others
should not suffer as they have done. That has left a strong impression
on me, as I am sure it has on the Minister and many other hon. Members
who have been touched or contacted by, or who have spoken to, those
affected by this sort of
crime. It was important that there were a lot of young people at that
rally—young people taking a stand and saying that they were not
all like that, that they were the ones affected, and that they were as
angry as the rest of the community and were prepared to take a stand.
That sends a positive statement about the role of young people in our
communities. It is a great
credit to a large number of young people that they are not prepared
just to sit by and let this happen, and to see the things that they
have. They are prepared to take a stand and actively ensure that change
takes place. That is why I am pleased to support organisations such as
Kids Count, which I know that the Minister also supports. There are
other similar organisations seeking to give a voice to young people and
advocating change to prevent these appalling acts. I pay tribute to the
many organisations that seek to address and confront these issues in
their communities.
It is the
direct links to gang culture, activity and membership that make the
situation so serious. One of the most insidious aspects of the
organised criminal gang structure is that gangs often consciously focus
recruitment on some of the more vulnerable members of our communities,
such as those with poor educational attainment, weak family support
structures, addictions or mental illness and those who are unemployed.
Those people are often targeted for gang membership to deal drugs, to
get involved in criminal activity and to support the gang structure. As
I said to the Minister, the appalling fact recently reported by Trident
to the Home Affairs Committee is that those involved are getting
younger and younger. Sadly, in recent years, we have seen 13-year-olds
being involved in gun crime and linked to gang activity, which is why I
understand the Minister’s desire for additional mechanisms to
address young people in particular. However, as I think he accepts,
there are complications and problems that I will come on to regarding
the Government new
clauses. Gangs
often deliberately seek to undermine family and social structures,
drawing the individual away from traditional ideas of family
relationships with acts of sickening violence that are part of a
perverse rite of passage; people are encouraged to demonstrate their
affiliation to the gang in that way. It is horrendous that gangs seek
to undermine the family, which can be so important in preventing
someone from getting drawn down those paths. Gangs play on
people’s fears and seek to get in the way of family structures.
Criminal gangs are so pernicious and their actions so appalling not
only because of what they do to communities and families but because of
how they draw individuals away from otherwise fulfilling lives. There
is also fear; intimidation prevents people from coming forward to the
police, and prevents law enforcement agencies from bringing
prosecutions. I agree with the Minister that the first port of call
should be to bring people to justice. That must be our focus and
objective, even though the fear and intimidation sometimes make it
difficult to
achieve. Various
approaches have been taken to combat gang crime and pernicious gang
activity around the country, which reflects the fact that gangs in
different areas are different in structure and nature. It would be
wholly mistaken to think that the nature and structure of a gang in
London was the same as that of a gang in Manchester or Birmingham, or
on Merseyside. Some gangs are simply about territory, while others are
motivated
by broader criminal intent and funding a criminal lifestyle, but they
all tend to have a sense of identity in common. They often use colours
to distinguish the gang, and ape some of the activities of gangs in the
United States. In the west midlands, injunctions were used to disrupt
gang activity, basing a claim on the nuisance caused by gangs and
seeking to bring that within the remit of section 222 of the Local
Government Act 1972. In many ways, that model is based on tools
developed in Boston and other parts of the US, where the injunction is
seen as an important mechanism available to law enforcement officers in
preventing gang activity and ensuring that communities are
protected. In
its “Going Ballistic” report on dealing with guns, gangs
and knives, Policy Exchange
noted: “West
Midlands police were able to use Section 222 to exclude dangerous
individuals from certain areas so that they could no longer exert
influence, trade drugs or intimidate residents there. It allowed them
to control dangerous gang members by enforcing non-association or
restraining orders, exclusion zones around certain areas (barring known
gang members from the area in which their gang operates) and specific
exclusions (buses or
parks).” This
is why I understand the Minister’s focus. He seeks to tackle the
issues at that very serious end, based on that model. However, as the
Minister has said, in the case of Birmingham city council v.
Marnie Shafi and Tyrone Ellis, such use of section 222 of the 1972 Act
was ruled inappropriate by Nottingham county court, and that decision
was upheld by the Court of Appeal last October. In essence, the court
said that except in exceptional circumstances, an injunction should not
be granted when an application for an antisocial behaviour order could
have been made. If it was granted, the evidence provided would have to
be proved to the criminal
standard. 10
am Since
the decision, it has been suggested that because the section 222
injunction is no longer available as a tool, gang violence in
Birmingham has increased. In that context, I understand why the
Government have thought it appropriate to introduce the proposals. I
recognise and endorse the Minister’s point that prosecutions are
the preferred option but that they might not be appropriate in all
circumstances. A balance of proportionality and reasonableness must be
struck in the potential use of civil orders that might otherwise
protect communities from such criminal
activities. As
the Minister has accepted, the proposals differ from the
quasi-injunction provisions in ASBOs and serious crime prevention
orders and go much further than section 222 injunctions, which are
largely modelled on case law and the law of nuisance, although
Birmingham city council used them as it did until the court judgment.
Before a gang injunction can be made, the court must be satisfied that
the respondent has engaged in, encouraged or assisted gang-related
violence and that the order is necessary to prevent them from engaging
in further gang-related violence or to protect them from such
violence. The
first test involves being satisfied on the balance of probabilities:
the civil test, as the Minister said. From our previous debates on
serious crime prevention orders and other matters, he will be aware of
the case of R v. Manchester Crown court ex parte McCann. The
application
of the sliding scale of the civil test may equate at times to something
virtually indistinguishable from the criminal standard. The use of the
term “balance of probabilities” in the clause appears to
seek to deviate from that general case law in the application of civil
orders in what might be considered quasi-criminal issues. He will also
be aware of the fine distinction between a preventive order and a
punitive one, with all the issues that that may connote. Is the
Minister satisfied that the use of the balance of probabilities test
for satisfying the court about what amounts to criminal conduct will
withstand challenge on the basis of existing relevant case law, which
might otherwise suggest a higher hurdle for the burden of proof? In
particular, is it intended that the order should deviate from the
McCann judgment? In the use of the balance of probabilities rather than
the civil standard of proof, is there a focused and deliberate
intention to say, “Actually, for this sort of case, we
don’t believe that McCann should apply,” and that a lower
hurdle should be applicable in such situations?
Also, some
human rights issues might apply if the order is seen as punitive rather
than preventive. Again, will the Minister comment on what advice and
consideration he was given in framing the new clauses to ensure that
the orders are seen as preventive, not punitive? Otherwise, there will
be human rights issues. Does the Minister envisage that the order will
be used on a stand-alone basis, or is it intended to operate alongside
criminal conviction, for example? If so, what does the order add to a
serious crime prevention order or even an
ASBO? For
an application for an injunction to be successful, there must have been
violence in the course of the gang’s activities, yet no
definition of a gang is provided. From everything that has been said, I
understand the Minister to mean one of the identifiable organised gangs
that officers from Excalibur, Trident or any of the specialised forces
dealing with gang activity can explain in disturbing detail. However,
given the context, all that we are left with is the requirement that
there should be gang-related violence. A group of young people who
simply hang out together might be considered by some to be a gang. But
as the Minister has said, and I agree with him, that is not what we
should be trying to get at. The focus should be on those identifiable
gangs engaged in gun, knife and other violent crime, rather than on
groups that some have referred to as loose affiliations of young
people. As Liberty has
asked: “Is
it simply a group of young people wearing
hoodies?” I
do not think that that is the case, but one might get that impression
from reading the Bill. It might be useful to have some context to
assist the courts and those who might wish to use the power for the
protection of their own communities, especially given that it will not
be the court that immediately has to consider using the
injunction.
The Minister
said that he did not want to include lists, and in matters of drafting
I generally agree with him, but I am aware of no existing case law that
the courts, police forces or local authorities could look to for
defining a gang, which is the basis on which the provision is framed.
He has said that he will reflect on what guidance or assistance might
be offered, but clearly that would be non-statutory, so a court
interpreting what is meant by the provision would have to take the
actual words as the starting point. If it felt that the words were
clear, it could apply them accordingly, so it
would be helpful to have a road map or some further definition to ensure
that the new clauses are applied in the way in which I believe they are
intended, focusing on the most serious crimes of violence. That is why
we have tabled the amendment suggesting that a definition of a gang
should be included. That
suggestion is modelled on the definition set out by the Centre for
Social Justice in its excellent report on gang activity, but as the
Minister has rightly said, it is not the same. I welcome his comments
accepting what is an important and ground-breaking report that puts in
context the reality of gang activity in this country. The CSJ rightly
makes the point that there are clearly identifiable factors for the
sorts of structured gang activity that are at the heart of the problem,
and I believe that that should be reflected in the drafting of the
clause.
I have heard
what Liberty has said about the drafting of the amendment. The Minister
made a teasing comment about that, and I take it in the spirit in which
it was made. I take no pride in ownership of drafting; I am simply
seeking to address that important point. If there needs to be
refinement of the issues I have identified, I am prepared to work on
that and reflect on the comments that have been made.
The point
about boxing is that it relates back to the question of what will be
considered gang-related violence, and I do not think that that would
fall within that definition. I respect what Liberty has said about
trying to get that right and I think that we should all reflect on that
in ensuring that the focus and structure of the clause is
appropriate.
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