Legislative Scrutiny: (1) Serious Crime Bill, (2) Criminal Justice and Courts Bill (second Report) and (3) Armed Forces (Service Complaints and Financial Assistance) Bill

Legislative Scrutiny: (1) Serious Crime Bill, (2) Criminal Justice and Courts Bill (second Report) and (3) Armed Forces (Service Complaints and Financial Assistance) Bill - Human Rights Joint Committee Contents

1 Serious Crime Bill

Background

1.1 The Serious Crime Bill[1] was introduced in the House of Lords on 5 June 2014.[2] It received its Second Reading on 16 June[3] and completed its Committee Stage on 15 July.[4] Its Report Stage began on 14 October and is scheduled to finish on 28 October.

1.2 Lord Taylor of Holbeach has certified that in his view the Bill is compatible with Convention rights. We wrote to the Minister on 25 June asking a number of questions about the Bill. Lord Taylor responded by letter dated 15 July.[5]

1.3 We identified the Bill as one of our priorities for legislative scrutiny in this Session and called for evidence in relation to it. Only one submission, however, was received on the Bill—from CAGE, which describes itself as "an independent advocacy organisation working to empower communities impacted by the War on Terror", in relation to the provision which would give extra-territorial effect to certain terrorism offences.

1.4 The Bill's main objective is to ensure that law enforcement agencies have effective legal powers to deal with the threat from serious and organised crime, including drug trafficking, human trafficking, organised illegal immigration, child sexual exploitation, high value fraud and other financial crime, counterfeiting, organised acquisitive crime and cyber-crime.

1.5 The Bill gives effect to a number of proposals in the Government's Serious and Organised Crime Strategy published in October 2013.[6] It is designed to update existing law dealing with recovery of the proceeds of crime, cyber-crime, serious crime prevention orders, gang injunctions, child cruelty, female genital mutilation and the commission of certain terrorism offences abroad, by creating new powers and offences and extending others.

Information provided by the Government

1.6 An ECHR memorandum was published, prepared jointly by the Home Office and the Ministry of Justice, alongside the Bill itself on introduction, in accordance with our recommendations for best practice by departments.[7] The Memorandum is relatively detailed and helpful. Our Legal Advisers met the Bill team on 19 June. We also received a brief supplemental ECHR memorandum from the Home Office dated 7 October 2014 in relation to a Convention compatibility issue raised by a Government amendment to the Bill tabled for Lords Report Stage. In addition to the ECHR memoranda the Government published a number of factsheets on specific aspects of the Bill, and an overarching impact assessment, all of which have been helpful in our scrutiny of the Bill. We welcome the observance of good practice by the Home Office and the Ministry of Justice in their provision of information in relation to this Bill.

1.7 However, there is one matter on which we have to comment adversely, and repeat a point we have often made in previous legislative scrutiny Reports. Our letter of 25 June asked for a reply by 9 July, which would have enabled us to consider the Government's response to our questions at our last meeting before the summer recess and a draft Report at our September meeting, with a view to us reporting before the start of the Bill's Report stage in the Lords. Unfortunately the Government's response was not received until 15 July, a week later than requested, and too late for it to be considered by us at our meeting before the summer recess. The first day of the Bill's Report Stage has now been scheduled for Tuesday 14 October, the day before our first meeting after the end of the Lords summer recess. The lateness of the Government's response to our questions has therefore not assisted our reporting before the Bill's Report Stage begins.

1.8 We remind the Government that we have previously expressed our concern at the short timescale often afforded for scrutiny of legislation, and at delays in Government responses to requests for information hindering the timely publication of Committee Reports.[8] We also remind departments of both (i) the importance of observing the dates by which responses to correspondence are requested and (ii) the responsibility on parliamentary business managers to allow scrutiny by committees to proceed to a conclusion within a reasonable timescale before moving on to the very last stage of a Bill in any one House at which amendments can be considered.

Proceeds of crime (Part 1)

1.9 Part 1 of the Bill makes amendments to the Proceeds of Crime Act 2002 which are designed to increase the amount of money recovered from serious organised criminals by closing various loopholes in the legislation.

THRESHOLD FOR RESTRAINT ORDERS (CLAUSE 11)

1.10 One of the proposed changes is to lower the threshold test that a court applies when deciding whether to freeze property by way of a restraint order, from "reasonable cause to believe" to "reasonable grounds to suspect".[9] The justification for the change is that it is required in order to prevent the risk of assets being dissipated between arrest and charge. We asked the Government what evidence exists to demonstrate that such dissipation of assets is a practical problem which needs to be addressed.

1.11 The Government said in response that the number of restraint orders granted in recent years has steadily declined since a judgment of the Court of Appeal in 2011[10] which made it harder for the Crown Prosecution Service ("CPS") to get restraint orders because the prosecution has to show not only that there is a likelihood that somebody will be convicted and that there will be a confiscation order in place, but also the likelihood that they will dissipate their assets. The impact of that judgment is said to be reflected in the fall in the number of restraint orders granted, from 1,856 in 2010-11 to 1,366 in 2013-14.

1.12 The purpose of restraint orders is effectively to freeze property to prevent it from being dissipated before a confiscation order is made. The Government says that to be effective in achieving that purpose, such orders need to be available as early as possible in the investigation. The operational experience of the CPS, however, is that at the early stage of an investigation it is very hard to prove reasonable belief because there often is insufficient evidence at that stage. Delaying the obtaining of a restraint order until sufficient evidence is available to meet the reasonable cause to believe test can give suspects the opportunity to dissipate or hide their assets and so protect them from seizure.[11] The Joint Committee which scrutinised the draft Modern Slavery Bill was persuaded that for these reasons the threshold for restraint orders should be lowered from reasonable belief to reasonable suspicion.

1.13 The Government recognises, in both its ECHR Memorandum and in Ministers' contributions to debates, that the Bill's provisions on the proceeds of crime have implications for the right to peaceful enjoyment of possessions, and it acknowledges the need for safeguards to ensure that only necessary and proportionate interferences with that right take place. It accepts the need for balance between ensuring that restraint orders are being made in all appropriate cases, while continuing to provide adequate protection to ensure that restraint orders are not used inappropriately.[12] Significantly, the Government has considered and rejected other suggested changes to the legal framework on the grounds that they would remove important safeguards which are needed to ensure that restraint orders are only used where necessary and appropriate. It considered carefully, for example, the recommendation of the Joint Committee on the Draft Modern Slavery Bill that the existing requirement to demonstrate risk of dissipation of assets should be explicitly removed, but after consulting prosecutors concluded that this is an important safeguard that should be retained. The Government has also rejected the suggestion that the burden of proof should be reversed, so that it is for the defendant to demonstrate that there is no risk of dissipation, again on the ground that this would undermine necessary safeguards:[13]

We should not lose sight of the fact that every person is entitled to the peaceful enjoyment of his or her possessions. At the pre-charge stage of an investigation, an individual has neither been charged nor found guilty of an offence. It is therefore essential that the onus of proof remains on the prosecutor at this early stage. The Government are all for toughening up the asset recovery regime—we have made that clear, and it is precisely what we are doing in the Bill. However, we need to keep the regime proportionate, maintaining a proper balance between depriving criminals of their ill-gotten gains and protecting the rights of persons who, in the early stages of an investigation, have not yet been convicted of any offence.

1.14 Restraint orders, which freeze a suspect's assets, can have a serious impact not only on the individual concerned but on that person's dependants and on their business, and the proposed lowering of the threshold for the obtaining of such orders therefore reduces the safeguards against such interferences with the peaceful enjoyment of possessions and with the right to respect for private and family life being disproportionate. However, we are satisfied that the Government has demonstrated by evidence that the current approach gives rise to a real, practical risk that assets will be dissipated or otherwise shielded from possible confiscation orders. As the Government points out, other safeguards already exist in the statutory framework: for example, the court has the power to vary or discharge a restraint order if it is not satisfied that the investigation is progressing satisfactorily. In addition to the safeguards expressly provided for in the legislation, other implied safeguards have been read into the statutory framework by the courts pursuant to their obligation to read legislation compatibly with Convention rights.

1.15 In view of the existence of these other safeguards, we are satisfied that the Government has adequately justified the lowering of the threshold for restraint orders from "reasonable cause to believe" to "reasonable cause to suspect". We consider below whether the opportunity should be taken in this legislation to write the judicially implied safeguards into the statutory framework so that the law is clear on its face and there is no room for doubt about the safeguards which exist to ensure that restraint orders are only used where necessary and proportionate.

PROPORTIONALITY

1.16 The statutory framework governing the proceeds of crime has been the subject of much litigation, including a number of Supreme Court cases (the latest one handed down in June this year[14]). The Supreme Court has observed that one of the difficulties with the legislation in practice has been the lack of judicial discretion built into the statutory scheme, and has suggested that the need for such litigation would be reduced if such discretion were introduced.

1.17 The courts have also used s. 3 of the Human Rights Act to read words into the legislation in order to ensure that it operates compatibly with the ECHR, and in particular with the right to peaceful enjoyment of possessions in Article 1 Protocol 1. For example, the requirement that there must be shown to be a risk of dissipation of assets as a condition of obtaining a restraint order, which both the CPS and the Government agree is an important safeguard which should be retained, is not found in the Proceeds of Crime Act itself, but is the result of judicial interpretation of the statute. The duty on the court to make a confiscation order if certain conditions are satisfied has also been qualified by the courts reading in an exception where it would be disproportionate to make such an order. We asked the Government why the opportunity should not be taken in this Bill to write those judicially implied words into the legislation itself, which may reduce the need for future litigation about the Act's provisions. We also suggested two express requirements that could be inserted into the statutory framework to make it clear how it should be interpreted in order to make it ECHR compatible.

1.18 One of the Government's responses to this question was that "to explicitly require in POCA that the Act be interpreted compatibly with the ECHR may have the unintended consequence of casting doubt on other legislation, which has no such explicit reference." We are puzzled by this response, which is based on a misunderstanding of our questions. Section 3 of the Human Rights Act requires all legislation to be interpreted compatibly with Convention rights so far as it is possible to do so, and this makes it unnecessary for any Bill to include an express requirement to the same effect. Neither we nor our predecessors has ever recommended that a Bill be amended to include an express requirement that it be interpreted in accordance with the ECHR, and nothing in the questions asked by us in our letter suggests that we had this in mind.

1.19 The question we asked was whether there is any reason why Parliament should not take the opportunity in this Bill to amend the proceeds of crime legislation by writing in to the legal framework the requirements that the Supreme Court has "read in" to the legislation in order to make it compatible with the ECHR.

1.20 The Government's substantive response to that question is that there is no need for any legislative amendments to POCA because of the obligations on courts and prosecutors in sections 3 and 6 of the Human Rights Act (to interpret legislation and exercise functions compatibly with Convention rights) and the "clear guidance" provided by the Supreme Court in the case of R v Waya. It is not necessary to add an express requirement on proportionality, in the Government's view, because the requirement for proportionality is satisfied by safeguards already built into the legislative framework.

1.21 In R v Waya, however, the Supreme Court said:[15]

The Proceeds of Crime Act 1995 ("the 1995 Act") was an amending statute, but its effects were far-reaching and, with hindsight after the enactment of HRA a few years later, problematic. The 1995 Act removed from the Crown Court almost all discretion as to the making or quantum of a confiscation order, if it was applied for by the prosecution and the statutory requirements were satisfied. That remains the position under POCA. The Crown Court no longer has any power to use its discretion so as to mould the confiscation order to fit the facts and the justice of the case, even though a confiscation order may arise in every kind of crime from which the defendant has benefited, however briefly. The Crown Court has encountered many difficulties in applying POCA's strict regime. Many of the complexities and difficulties of confiscation cases, arising from the extremely involved statutory language, would undoubtedly be avoided if a measure of discretion were restored, but whether to restore it, and if so in which form, is a matter for Parliament and not for the courts.

1.22 The Supreme Court went on to hold that it was necessary, in order to ensure that the statute is Convention-compliant, to read words into it so that the duty on the court to make a confiscation order is qualified by the words "except insofar as such an order would be disproportionate".[16]

1.23 In our view the Bill provides an opportunity to bring greater legal certainty to the legal regime governing the proceeds of crime by inserting into the statutory framework express language which would give clear effect to the judgment of the Supreme Court in Waya. We recommend that the Bill be amended to give clear statutory force to the qualification on the duty to make a confiscation order that has been "read in" to the POCA by the Supreme Court. The following amendment would give effect to this recommendation:

Page 4, line 15, before clause 5 insert new clause:

( ) In section 6 of the Proceeds of Crime Act 2002 (making of order), in subsection (5)(b) after 'amount' insert 'except insofar as such an order would be disproportionate.'

1.24 We also asked the Government if there are any reasons why Parliament should not take the opportunity in this Bill to give clear effect to the words read in to the legislation by the Supreme Court in the recent case of R v Ahmad—that confiscation orders made in relation to a joint benefit can be enforced only to the extent that the same sum has not been recovered through another confiscation order made in relation to the same benefit, to prevent double recovery by the State.

1.25 The Government's response to our question was that Ahmad is a new piece of case-law, and the Government intends to review how it operates in practice. We look forward to being informed about the outcome of this review and expect the Government to make clear to Parliament precisely how it proposes to respond to the Supreme Court's judgment in Ahmad.

PROVISION OF INFORMATION BY THIRD PARTIES

1.26 The Government has tabled an amendment for Lords Report Stage which will confer a power on the courts to require information from third parties about any interest they may have in property that is the subject of a confiscation order.[17]

1.27 We accept the Government's explanation in its supplemental ECHR memorandum that its amendment is compatible with the privilege against self-incrimination in Article 6 ECHR in light of the express provision that no information given by a person under the new provision is admissible in evidence in proceedings against that person for an offence.[18]

Computer misuse offence (Part 2, clause 40)

1.28 Part 2 of the Bill creates a new criminal offence of unauthorised acts in relation to a computer (that is, computer hacking) causing serious damage to human welfare, the environment, the economy or national security in any country.[19] The rationale for the new offence is to fill what the Government considers to be a gap in the current criminal law.[20] Under the current law, the most serious computer hacking offence is that of unauthorised access to impair the operation of a computer under s. 3 of the 1990 Act, which carries a maximum penalty of 10 years' imprisonment. That maximum penalty is not considered adequate by the Government for those cases where the impact of the action is to cause serious damage, for example to critical national infrastructure. The purpose of the new offence is to address the most serious cyber-attacks, such as those on essential systems controlling power supply, communications, food or fuel distribution. Such attacks on UK cyber-space were identified in the National Security Strategy 2010 as a "tier one" threat to national security.[21] Tackling cyber-crime is therefore an important part of the Government's Serious and Organised Crime Strategy and, to do so effectively, the Government says it is important to ensure that the right framework of criminal offences is in place.

1.29 The new offence is more serious than the existing s. 3 offence of computer hacking and is triable only in the Crown Court. Where the attack results in loss of life, serious illness or injury, or serious damage to national security, the maximum sentence is life imprisonment; where it results in serious economic or environmental damage or serious social disruption the maximum sentence is 24 years' imprisonment.

1.30 The Bill defines the concept of "damage to human welfare",[22] but does not define damage to the environment, the economy or national security. As the Government's ECHR Memorandum correctly acknowledges, this raises an issue about whether the new offence is defined with sufficient legal certainty to enable individuals to predict the consequences of their actions.[23] However, the Government is satisfied that the terms are capable of being applied with a sufficient degree of legal certainty, because "these terms have been used numerous times in legislation without definition." The courts have tended to leave the determination of whether something endangers national security, for example, to the Secretary of State, but the Government considers that the term is well enough understood to be capable of application by a properly instructed jury.

1.31 We accept that there are a variety of statutory contexts in which the broad terms "damage to the environment, the economy or national security" appear. Indeed, in other contexts we have accepted the Government's argument that it is not appropriate to include a statutory definition of "national security". It was not clear to us, however, whether any of these broad terms had ever before been used in legislation creating a criminal offence. We therefore asked the Government whether there are any examples of other, existing criminal offences in which the concepts of "damage to the environment", "damage to the economy" or "damage to national security" are included as an element of the offence, and if so to be provided with examples of each.

1.32 The Government replied that "We are not aware of any offences which have 'damage to the environment', 'damage to national security' or damage to the economy' as an ingredient of the offence."

1.33 In relation to the environment, the Government does not consider it appropriate in this context to provide specific definitions of the environment and damage to the environment, because this would potentially restrict the cases in which the prohibition might apply. The terms are intended to carry their broad, everyday meanings. In relation to national security and the economy, the Government points out that in the context of various executive actions which constitute significant interferences with human rights, such as deportation or asset-freezing, the courts have accorded the executive "considerable leeway" in deciding what national security requires or whether action is to the detriment of the UK's economy. The Government "acknowledge[s] that there is a difference between these sorts of executive actions and criminal sanctions", but considers that the terms "national security" and "economy" are sufficiently well understood for a properly instructed jury to be able to reach a verdict.

1.34 We also asked the Government to clarify, with examples, what they consider to constitute serious damage to the environment, the economy or national security in this context. In response, the Government acknowledged that "there is a tension between defining this offence sufficiently broadly to catch the various types of serious harm that might result from unauthorised acts in relation to a computer while providing legal certainty as to the scope of criminal liability." The Government confirmed that the new offence of computer misuse is not intended to capture damage which is trivial or minor, and whether the damage is "serious" will depend on the circumstances of each case, and factors such as the severity of any impact on individuals, the number of individuals affected, the geographical area affected and the duration of the impact. However, the Government did not take up our invitation to provide some examples of what it considers constitutes serious damage to the environment, the economy or national security in this context.

1.35 We regard as highly significant the fact that the Government is not aware of any other criminal offences which have "damage to the environment", "damage to the economy" or "damage to national security" as an ingredient of the offence. The use of such broad concepts without further definition in other statutory contexts is one thing but, as the Government itself acknowledges, it is quite another in the context of criminal sanctions. Legal certainty requires that criminal offences are precisely defined so that individuals know how to avoid such sanctions. Vagueness is not permissible in the definition of criminal offences.

1.36 We note that in August 2013 the EU adopted a Directive on attacks against information systems, one of the objectives of which is to approximate the criminal law of the Member States in the area of attacks against information systems by establishing minimum rules concerning the definition of criminal offences and the relevant sanctions.[24] The recitals to the Directive state that it has become apparent from the need to increase the critical infrastructure capability protection of the Union that the measures against cyber-attacks should be complemented by stringent criminal penalties reflecting the gravity of such attacks. "Critical infrastructure" in this context is understood to be "an asset or system, or part thereof, which is essential for the maintenance of vital societal functions, health, safety, security, economic or social well-being of people, such as power plants, transport networks or government networks, and the disruption or destruction of which would have a significant impact in a Member State as a result of the failure to maintain those functions."

1.37 The Directive requires Members States to provide for criminal penalties in respect of attacks against information systems, and that those criminal penalties should be effective, proportionate and dissuasive and include imprisonment and/or fines. It recognises that it is appropriate to impose more severe penalties where a cyber-attack causes serious damage, or is aimed at critical infrastructure. However, States are only required to ensure that a maximum penalty of five years imprisonment is available for the most serious offences.[25] This particular change to the law is therefore not required in order to comply with the EU Directive on Attacks on Information Systems.

1.38 We do not doubt the need to ensure that the criminal law provides adequate protection against cyber-attacks on critical infrastructure. We doubt, however, whether the concepts of "damage to the environment", "damage to the economy" or "damage to national security" are sufficiently certain in their meaning to justify their inclusion as an ingredient of a criminal offence carrying maximum sentences of 14 years and life imprisonment. The broad and vague definition of the new offence of computer misuse appears to be without precedent, and the Bill therefore appears to cross a significant line by using these unsatisfactory concepts in the definition of a serious criminal offence carrying a lengthy sentence. We recommend that the Bill be amended to remove these particular elements of the new computer hacking offence.

1.39 The following amendment would give effect to this recommendation:

Page 31, line 1, leave out sub-paragraphs (b), (c) and (d).

Participating in the activities of an organised crime group (Part 3, clause 44)

1.40 Part 3 of the Bill includes a new criminal offence—participating in the activities of an organised crime group[26]—which is designed to plug a gap in the ability of law enforcement agencies to target those who help organised criminal groups to function. The new offence was announced without any prior consultation by the Home Office, including with any of the professional groups such as lawyers and accountants who the Government says are amongst the principal targets of the new measure. The offence is very broadly drawn and on its face it would apply, for example, to legal professionals providing legal services to those suspected of involvement in serious organised crime.

1.41 We asked the Government why existing offences are not sufficient to deal with the problem, whether the offence is sufficiently tightly defined, and whether providers of legal services are intended to be caught.

1.42 Strong concerns have been expressed, not about the objective behind the provision, but about the uncertainty caused by the breadth of the offence as currently drafted. The Law Society, for example, was concerned by the uncertainty caused by the combination of the low threshold in the mens rea required for the offence ("reasonable cause to suspect") and the vagueness of the concept of helping an organised crime group to carry on criminal activities. It pointed out that it is not clear, under the offence as drafted, how far an individual must go to satisfy themselves that whatever service they are providing is not assisting criminal activities down the line somewhere. It is not clear, for example, what level of due diligence a solicitor would need to carry out to make sure that they could not be said to have turned a blind eye to criminal activity.

1.43 During the Bill's Committee stage, the Minister agreed to give further consideration to two aspects of the offence in the light of these concerns about the legal uncertainty caused by its breadth as currently drafted.[27] First, he agreed to give further consideration to ensuring that the mens rea (state of mind) of the person committing the offence is such that it does not capture the naïve or unwitting. Second, he acknowledged the importance of there being no anxiety amongst people, professionals and non-professionals alike, that they might be inadvertently captured by the participation offence, and he agreed to give further consideration to including in the Bill a general defence available to both professionals and non-professionals.

1.44 The Government now proposes to address the concerns expressed about the current vagueness of the new offence by changing the required mens rea of the person committing the offence from "has reasonable cause to suspect" to "reasonably suspects".[28] It says that this would require the prosecution to prove both the subjective test that the person genuinely suspected and the objective test that that suspicion was reasonable. This, the Government says, would ensure that the naïve and unwitting were not caught by the offence because they would not have suspected, even though they had reasonable grounds for doing so. However, the Government does not intend to amend the Bill to include any additional defence, having concluded that a general defence of "acting reasonably" would not offer any additional protection against over-criminalisation that is not already achieved by changing the mens rea of the offence as described above.

1.45 We welcome the Government's preparedness to address concerns about the legal uncertainty caused by the breadth of the offence as currently drafted. However, we are not persuaded that the change from "reasonable cause to suspect" to "reasonably suspects" goes far enough to meet those concerns. We recommend that the Bill be amended to raise the threshold of the mens rea required above either "reasonable cause to suspect" (in the Bill as it currently stands) or "reasonably suspects" (as proposed in the Government's amendment), to "reasonably believes". This is a higher threshold, as the Government acknowledges in clause 11 of the Bill where it is reducing the threshold test for restraint orders from "reasonable cause to believe" to "reasonable grounds to suspect", and it would therefore go some way towards reducing the scope of this new criminal offence.

1.46 We also recommend a probing amendment which would provide for a general defence to be available where the defendant has acted reasonably in all the circumstances, to provide Parliament with the opportunity to explore in more detail the Government's reasons for rejecting the argument for a wider defence than the Bill currently provides. The following amendment would give effect to these recommendations:

Page 34, line 19, leave out 'has reasonable cause to suspect' and insert 'reasonably believes'.

Page 35, line 10, insert 'or that the person acted reasonably in all the circumstances.'

Seizure and forfeiture of drug-cutting agents (Part 4)

1.47 Part 4 of the Bill creates bespoke search, seizure and forfeiture powers in relation to drug-cutting agents. The provisions serve the legitimate aim of plugging a current gap in investigative powers which arises because there is no underlying criminal offence of possession of drug-cutting agents.

1.48 We accept the Government's explanation of why the suite of proposed new powers of search, seizure and forfeiture appears to be both necessary and proportionate. However, we had one detailed question about the adequacy of the safeguards written in to the conditions for obtaining a warrant. As drafted, it is not absolutely clear on the face of the Bill that it is a precondition of the obtaining of a warrant that there must be reasonable grounds for suspecting, not only that a particular substance is on the premises, but that the substance is intended for use as a drug-cutting agent. We therefore asked the Government to clarify whether this is the Government's intention.

1.49 The Government's response was an unequivocal yes. Before a magistrate can issue a search and seizure warrant, he or she has to be satisfied that there are reasonable grounds to suspect that a substance (i) intended for such use is (ii) on the premises. The officer applying for the warrant must persuade the magistrate that he or she (the officer) has both a genuine and reasonable belief that both elements exist.

1.50 We welcome the Government's clarification of its intention, in the light of which we are satisfied that the safeguards surrounding the proposed new powers are adequate. We also welcome the Government's amendments to Part 4 which would require notice to be given both to the person from whom the substance was seized and, if different, to the person to whom the substance belongs, which improve the procedural safeguards against the unnecessary or disproportionate use of these powers.

Protection of children (Part 5)

CHILD CRUELTY (CLAUSE 65)

1.51 Clause 65 of the Bill amends the definition of the offence of child cruelty in section 1 of the Children and Young Persons Act 1933 ("the 1933 Act"). Under section 1, it is an offence for a person over the age of sixteen, who has responsibility for a child under that age, wilfully to assault, ill-treat, neglect, abandon or expose that child in a manner which is likely to cause unnecessary suffering or injury to health.

Positive obligations to protect children from harm

1.52 The State has positive obligations to protect children from harm under ECHR Article 2 (the right to life), Article 3 (the prohibition of torture, cruel, degrading, or inhumane treatment), and Article 8 (the right to respect for private and family life). This means that the State must have adequate structures in place to protect children, including criminal sanctions.[29] There is a similar requirement under the United Nations Convention on the Rights of the Child, which provides that States must take all appropriate legislative and other measures to protect children from all forms of physical or mental violence.[30] The United Nations Committee on the Rights of the Child has highlighted the importance of children's psychological integrity, and has called on States to recognise the impact of, and need to address, non-physical forms of harm to children.[31]

The right to respect for private and family life (Article 8 ECHR)

1.53 Parental rights and choices in the upbringing and education of children are central aspects of the right to respect for family life, which is guaranteed in Article 8 ECHR. The amendment to the definition of the offence of child cruelty must satisfy the requirements of legal certainty. It must also be necessary and proportionate. The Government states that it is satisfied that the provision is compatible with Article 8 ECHR on the basis that a parent's right to respect for family life is not affected by the imposition of criminal law sanctions for harming their child.[32]

Necessity

1.54 The explanatory memoranda to the Bill set out the Government's view that conduct which causes psychological suffering or injury to a child already falls within the scope of the current section 1 offence, explaining that the purpose of the proposed amendments is to make this position "absolutely clear",[33] without making any substantive changes to the current law.[34] We wrote to the Government to request further information to explain its view about the scope of the current section 1 offence and the necessity of the proposed amendments.[35]

1.55 In response, the Government explained its view that the current reference to "mental derangement" in section 1 would "by implication include psychological suffering or injury".[36] The Government also considers that this is clear from the case law interpreting the section 1 offence, and has been clear for many years: a case in 1938, R v Whibley,[37] in which the Court of Appeal held that section 1 concerns "the prevention of cruelty and exposure to moral and physical danger", makes clear that psychological suffering is already covered by section 1. Nor does the Government consider that there is anything in the case law on section 1 that would exclude such harm from the ambit of the offence. It acknowledges that in the Sheppard case,[38] it was held that child neglect under the section 1 offence concerns a child's physical needs, but points out that the judgment concerns only one of the five behaviours (neglect) that can constitute cruelty under section 1. The Government's view is that non-physical cruelty can be covered by other limbs of the offence, in particular ill-treatment. Government amendments have been tabled for Report stage to make this explicit on the face of the legislation, by inserting "whether physically or otherwise" after "ill treats" in the text of the section 1 offence.[39] The Government also cites Crown Prosecution Service ("CPS") and Sentencing Council guidelines that refer to psychological harm in the context of section 1 of the 1933 Act in order to support its view that the law already covers psychological as well as physical suffering or injury.[40]

1.56 The Government also provided information to explain why it considers the amendments to the current statutory offence to be necessary. It provides details of a "targeted engagement exercise" that it conducted with expert stakeholders in October 2013. The Government confirms that some of the respondents were concerned that the offence may currently be restricted to physical abuse.[41] The Government also refers to research conducted by the charity Action for Children, which found evidence to suggest that there is confusion among some frontline professionals, including, most significantly, the police, as to whether the existing offence covers non-physical harm.[42] Although the Government considers that it is difficult to say what the effect of such uncertainty might be, as it has not been provided with any clear evidence to suggest that cases involving psychological harm or suffering are currently not being taken forward, it considers it to be possible that "a few" cases which might not have been referred to the CPS may be pursued if the law is clarified. It concluded that the law may be easier to understand if the offence was clarified by making explicit that it covers psychological as well as physical suffering or injury and updated to remove some of the more archaic language from the provision. The Government also reiterates its view that it considers the change to be necessary due to the "strength of feelings to which the issue gives rise".[43]

1.57 We are satisfied that the Government is legally correct that cruelty causing psychological harm to a child is already a criminal offence under the current section 1 of the Children and Young Persons Act 1933. Although there is only a slight evidential basis for the view that the scope of the current law is misunderstood, the evidence suggesting that many police officers and others may not appreciate that the current offence covers psychological harm is nonetheless particularly significant and does call into question whether the UK is adequately fulfilling its positive obligation to protect children from such harm. For this reason, we welcome the clarification of the law.

Legal certainty and adequacy of safeguards to ensure proportionality

1.58 In view of the implications for the right to private life, family life and home, we wrote to the Government to ask it to explain its view that '"suffering of a psychological nature" satisfies the requirement of legal certainty, and, given the breadth and vagueness of that term, what threshold will be applied by police and prosecutors when deciding whether the offence has been committed. We also asked the Government for further information about safeguards to ensure that the amended offence does not lead to disproportionate interferences with the right to respect for private life, family life and home, and about the guidance that will be given to front line professionals about the implications of the amended offence.[44]

1.59 In response, the Government refers to the case of R v Whibley, which held that 'some small mental suffering or anxiety' would not constitute 'unnecessary suffering or injury'. The Government states that it expects the courts to apply this meaning in the same way to cases of psychological child cruelty. The Government states that it is satisfied that this provides a sufficient safeguard to ensure that "only behaviour that reaches a minimum level of severity is, and would be, covered". The Government also confirmed that it is liaising with the police, CPS and other frontline professionals about whether any updates or amendments to the relevant guidance would be necessary to ensure that relevant guidance is clear and applied appropriately.[45]

1.60 The relevant guidance to front-line professionals will be key in ensuring that the requirements of legal certainty and proportionality are met when the amendments to the offence come into force. We welcome the Government's commitment to liaise with the Department for Education, the Crown Prosecution Service and the police about the changes that may be necessary to ensure that the amended offence is properly understood. We stress the need for effective cross-Government coordination on this issue to ensure that guidance is both understood and applied consistently across all departments and agencies. We also recommend that the Government consults widely with civil society on drafts of the relevant guidance, including with organisations which aim to enable children to be raised safely within their families and to avoid unnecessary removal of children into care.

Protection for 16 and 17 year olds

1.61 We wrote to the Government to ask it to explain its justification for not extending the protection under the child cruelty offence to those aged 16 and 17.[46] This appears out of line with the UNCRC definition of a child and domestic child protection guidance, which both define a child as anyone under 18.[47] In response, the Government explains its view that "young people aged 16 or over are lawfully able to be married and are generally deemed capable of living independently of their parents. Those under the age of 16 are generally more vulnerable and dependent on those who care for them"[48] The Government thinks it is therefore right that the section 1 offence is focused on protecting under 16s. The Government also states that "increasing the age of victims from 16 years to 17 years would mean that a young person under the age of 18 who commits an offence under section 1 could not be prosecuted."[49]

1.62 We are not persuaded by the Government's justification for continuing to exclude 16 and 17 year olds from the protection of the child cruelty offence. The fact that a criminal offence protects those under the age of 18 does not mean that the offence cannot be committed by a person who is also under 18. In our view, it would be possible in principle to extend the scope of protection provided by the offence to those under 18 whilst preserving the possibility that those over 16 can commit the offence. This provision is the latest in a series of issues which have arisen in different contexts raising the wider question of the lack of a consistent legal definition of the age of a child in the UK, and we call on the Government to review this area of law.

POSSESSION OF PAEDOPHILE MANUALS (CLAUSE 66)

1.63 Clause 66(1) creates a new offence to criminalise the possession of items containing advice or guidance about abusing children sexually, commonly referred to as "paedophile manuals". The Government's human rights memorandum states that the provision raises issues in respect of Articles 6, 7, 8 and 10 ECHR.[50] The Government also considers that the measure furthers its fulfilment of Article 34 UNCRC, which requires States to undertake to protect children from all forms of sexual exploitation and sexual abuse.[51] The Government's memorandum sets out that the aim of the new offence is to combat the commission of sexual offences against children.[52] A Factsheet on the provision, published by the Home Office, explains further that there is a potential gap in the law which does not cover the possession of written material that contains practical advice on how to commit a sexual offence against a child.[53]

1.64 Based on the information provided by the Government, the creation of a new offence to criminalise the possession of "paedophile manuals" appears to be a necessary and proportionate measure in order to fulfil the positive obligation to protect children from harm.

FEMALE GENITAL MUTILATION: EXTRA TERRITORIAL ACTS (CLAUSE 67)

1.65 Clause 67 of the Bill amends the Female Genital Mutilation Act 2003 ("the 2003 Act") so that the extra-territorial jurisdiction, which currently applies to UK nationals and permanent UK residents, extends to female genital mutilation ("FGM") acts conducted outside the UK by a person who is habitually resident in the UK, irrespective of whether they are subject to immigration restrictions. It also amends the 2003 Act to ensure that the offence of FGM covers situations where the victim of the procedure is habitually resident in the UK.

1.66 FGM is a violation of the human rights of girls and women. The UN Committee on the Elimination of All Forms of Discrimination against Women has issued a General Recommendation that calls upon States to take appropriate and effective measures with a view to eradicating the practice.[54] In February 2014, the Government issued a political declaration outlining a number of initiatives across various Departments to end FGM in the UK and abroad.[55] The provision in Clause 67 is one such measure. The extension of the extra-territorial effect of the FGM offences to a person who has his or her habitual residence in the UK is also in line with the requirements of the Council of Europe's Convention on preventing and combating violence against women and domestic violence.[56] We welcome the proposed amendment to the Female Genital Mutilation Act 2003 as a human rights enhancing measure, which furthers the Government's positive obligation to protect women and girls from FGM.

Preparation or Training Abroad for Terrorism (Part 6, clause 68)

1.67 The Bill provides for extra-territorial jurisdiction over two terrorism offences which currently have either no or only limited extra-territorial effect: preparation for terrorism and training for terrorism under ss. 5 and 6 respectively of the Terrorism Act 2006.[57] The effect of the provision is that a person who does anything outside of the UK which would constitute the offence of preparation for terrorism under s. 5 or training for terrorism under s. 6 of the 2006 Act could be tried for those offences in a UK court if they were to return to this country.

1.68 The rationale for the provision is that extra-territorial jurisdiction is appropriate for these offences because the places where training or preparation for terrorism are taking place are increasingly likely to be located abroad and it may allow for prosecutions of people preparing or training more generally for terrorism who have, for example, travelled from the UK to fight in Syria.[58]

1.69 Extending the territorial reach of very broadly worded criminal offences has obvious implications for those who have legitimate reasons for travelling to areas of the world affected by armed conflict—for example to visit family, to deliver humanitarian aid, or simply on business. We are therefore surprised that the Government's ECHR memorandum does not consider the human rights implications of these significant provisions.

1.70 We note that the recent UN Security Council Resolution on Foreign Terrorist Fighters requires States to take a number of actions in relation to their nationals or residents who go abroad to be involved in terrorism, including by ensuring that their domestic laws establish serious criminal offences sufficient to enable them to prosecute and penalise their nationals and others who travel abroad to other States for the purpose of the planning or preparation of terrorist acts or the providing or receiving of terrorist training.[59] We acknowledge that clause 68 of the Bill can be seen as the UK's implementation of that particular obligation imposed by the UN Security Council Resolution. We also note, however, that the Resolution itself requires that the action taken by States to implement the obligations it imposes must be "consistent with international human rights law." We have therefore considered carefully whether this extension of the reach of the criminal law, which potentially interferes with a number of fundamental rights, is necessary, proportionate and sufficiently legally certain to be compatible with the UK's human rights obligations.

1.71 In response to our call for evidence on the Bill, we received a submission about this provision from CAGE, which describes itself as "an independent advocacy organisation working to empower communities impacted by the War on Terror."[60] CAGE questions whether the Government has shown the necessity for this provision extending the extra-territorial jurisdiction of these two terrorism offences. It argues that there has been no proper examination or assessment of the threat posed by travellers to Syria, no consideration of whether a gap in the law really exists, and no consideration of whether there are other practical alternatives to criminalisation, such as consulting and engaging with the communities from which people are travelling to Syria, or with the mainstream religious and scholarly leaders of those communities, which, CAGE says, would help the Government to understand the theological and other reasons why Muslims from this country travel abroad to help fellow Muslims.

1.72 CAGE also argues that there are legal objections to extending extra-territorial jurisdiction over these offences, and in particular that doing so will undermine the principle of legal certainty, given the pre-emptive nature of the offences in question, the potential breadth of what is caught by them, and the volatility of the situation on the ground in Syria and Iraq and the UK Government's responses to it, which inevitably leaves a very wide discretion to the enforcement authorities to decide who to prosecute.

1.73 CAGE also points to possible practical problems which may arise with the implementation of the provision. These include, in particular, the need to gather evidence from abroad or to obtain it from foreign governments or their agencies, which raises questions about the legal framework governing such information sharing, and what safeguards there will be to ensure that such information is not tainted by coercion or other illegality in the way it has been obtained. Finally, CAGE argues that the Government has not given sufficient consideration to the gravity of making criminal laws about terrorism apply extra-territorially, including the implications for international reciprocity and respecting the national sovereignty of other States.

NECESSITY

1.74 We asked the Government what evidence there is to demonstrate the necessity for this extension of extra-territorial jurisdiction, and for an indication of the approximate number and kinds of cases in which the law enforcement agencies have been unable to prosecute those returning from abroad because the current law is inadequate. The Government response does not provide either, saying that it is difficult to provide a specific number of operational cases where the measure would have been used, because prosecution decisions about individuals are made in accordance with the laws in place at the time, and prosecution for preparation or training for terrorism abroad is not currently an available option where the preparation or training takes place solely overseas.

1.75 However, the Government says that the law enforcement agencies are satisfied that there are likely to be particular cases of UK-linked individuals travelling abroad, for example to Syria, to prepare and train for terrorism. The Government estimates there to be more than 400 "UK-linked individuals" in Syria, and believes that some people who travel from the UK to take part in jihadist fighting will pose a security threat to the UK when they return. Extending extra-territorial jurisdiction for these terrorism offences is therefore part of ensuring that the law enforcement agencies are equipped with the powers to deal with the security threat posed by those returning to the UK after fighting in Syria. The Government also says that recent cases show the operational significance of these offences, pointing out that the recent conviction of Mashudur Choudhury for engaging in conduct in preparation of terrorist acts in connection with the conflict in Syria was based on activities which took place in the UK, and his prosecution would not have been possible if his preparatory activity had taken place solely outside the UK.

1.76 We think the Government could have done more to demonstrate to Parliament the necessity of resorting to a significant extension of the reach of the criminal law and to explain what else is being done to address the threat posed to national security by those returning from areas of conflict such as Syria and Iraq. We have found it difficult to arrive at a reliable view of the scale of the threat posed by such returnees. We note that while ministers frequently refer to there being 400 or even 500 UK-linked people who have travelled to Syria in connection with the current conflict, the Government's own estimate of the likely number of prosecutions under the proposed new provision is relatively small: 3 a year for the offence of preparation for terrorism abroad and one every other year for the offence of training for terrorism abroad. We also note that cases such as that of Mashudur Choudhury demonstrate that successful prosecutions of those who have gone abroad to take part in terrorism can already be brought under the current law, and suggest that where individuals travel abroad for that purpose there will often be preparatory activity and evidence of their intention before they leave the UK.

1.77 However, despite the lack of concrete evidence in the form of actual cases that cannot be prosecuted, we find the Government's argument that there is a potential gap in the law plausible, and we therefore do not oppose in principle the extension of extraterritorial jurisdiction over these offences. We are particularly influenced by the Minister's statement during the Bill's Committee stage in the House of Lords, in response to a question about whether the Government had consulted the Director of Public Prosecutions, that the Government has worked closely with law enforcement partners, including the Crown Prosecution Service, in developing the measure, and that those partners fully support it and have suggested that it will be operationally useful.[61]

LEGAL CERTAINTY AND PROPORTIONALITY

1.78 We also asked the Government whether the extension of extra-territorial jurisdiction over these broad terrorism offences makes it more urgent that the Government reconsider the breadth of the definition of 'terrorism' in s. 1 of the Terrorism Act 2000. The Government, however, does not acknowledge any difficulty in the breadth of the current statutory definition of terrorism. It says that it has been extensively debated in Parliament and has been the subject of extensive reviews, and points to a number of safeguards which it says ensure that in practice prosecutions are only pursued in appropriate cases.

1.79 The requirement of the Attorney General's express consent to prosecution where the offence relates to activity abroad is, as the Government rightly says, an important safeguard against the disproportionate use of prosecution for extraterritorial terrorism offences. The annual statutory review of the Terrorism Act 2000 by the Independent Reviewer of Terrorism Legislation, David Anderson QC, is also an important safeguard, as the Government suggests, but the Government does not refer to the fact that in his most recent review of the operation of the Terrorism Act 2000 in 2013 the Independent Reviewer was concerned about the breadth of the definition of terrorism.

1.80 Another safeguard invoked by the Government is that it can rely on the police and prosecution to make sure that prosecutions are only brought in appropriate cases. However, this looks like less of a reliable safeguard in light of the recent collapse of the proposed prosecution of Moazzam Begg on terrorism charges related to his activities in Syria, a collapse which occurred on the eve of his trial and following his detention for several months awaiting trial. Indeed, while there is so far very little information in the public domain about the reasons for the collapse of that prosecution, the episode of Moazzam Begg's collapsed prosecution may demonstrate some of the difficulties involved in using the criminal law in relation to alleged terrorist activities abroad, and the legal uncertainty which is inherent in such a broad definition of terrorism when applied to such rapidly moving political events.

1.81 We are also concerned that the extension of extra-territorial jurisdiction over these offences may give rise to a number of difficulties in practice which may make it difficult to bring such prosecutions. For example, information about an individual's activities abroad is likely to come from intelligence sources or from foreign governments or law enforcement agencies which may make it difficult to meet the high threshold of admissible evidence capable of sustaining a criminal conviction. In view of the current situation in Syria in particular, we think the Minister's view, that we can rely on established arrangements between our law enforcement agencies and the authorities in other countries for gathering evidence to be used in prosecutions,[62] is somewhat optimistic.

1.82 The complexity and fluidity of the situation in countries such as Syria and Libya also mean that the extension of extra-territorial jurisdiction over terrorism offences makes it likely that the breadth of the definition of "terrorism" in s. 1 of the Terrorism Act 2000 will increasingly be challenged by defendants who argue that they were not engaged in terrorism but rather in a just war against an oppressive despotic regime.[63] Since there is no requirement that the terrorism being prepared or trained for is directed at the UK, extending extra-territorial jurisdiction over these offences also increases the risk that the UK will come under pressure from authoritarian regimes to pursue and prosecute their domestic political opponents who are in the UK.

1.83 The likely practical difficulties facing a prosecution for preparation or training for terrorism abroad, and the lack of detailed evidence from the Government demonstrating the scale or extent of any gap in the ability to prosecute returnees for terrorism offences, has also given rise to concerns that the Government's main objective in introducing this measure is to deter those thinking of travelling to conflict zones such as Syria, even for bona fide humanitarian purposes, by sending a message making them fear prosecution if and when they return, rather than to enable actual prosecutions to be brought. As the plight of British hostage Alan Henning reminds us, there are many motivations for travelling to Iraq and Syria which do not involve any support for or involvement in terrorism, and the criminal law ought not to be extended in such a way that it deters all travel to areas of the world where there is armed conflict taking place. There is also growing evidence suggesting that some of those who travelled to Syria or Iraq from the UK are now disillusioned with the direction events have taken and wish to return, but are deterred from doing so by the fear of criminal prosecution.

1.84 In light of the Minister's clear assurance about the Government's assessment that the measure will be operationally useful and lead to prosecutions which cannot currently be brought, we do not oppose the inclusion of the provision extending extra-territorial jurisdiction over terrorism offences in the Bill. However, with reference to the various concerns expressed about the legal certainty, proportionality and desirability of doing so, we recommend that arrangements are made to report on and monitor the number of prosecutions brought as a result of this change in the law and the extent to which giving extra-territorial effect to the offences in question proves to be as operationally useful as the Government currently anticipates.

1 HL Bill 36 (as amended in Committee). Back

2 HL Bill 1. Back

3 HL Deb 16 June 2014 cols 643-699. Back

4 The Bill spent 3 days in Committee, on 2, 8 and 15 July. Back

5 Insert link to webpage. Back

6 Cm 8715. Back

7 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/317915/ECHR_memo_-_Lords_Introduction_version.pdf Back

8 Joint Committee on Human Rights, Ninth Report of Session 2012-13, Legislative Scrutiny Update, HL Paper 157/HC 1077 Back

9 Clause 11(1), amending s. 40(2)(b) of the Proceeds of Crime Act 2002 which sets out the conditions for the exercise of restraint order powers. Back

10 Windsor v CPS [2011] EWCA Crim 143. Back

11 Lord Taylor of Holbeach, HL Deb 2 July 2014 col 1762. Back

12 Lord Taylor, HL Deb 2 July 2014 col 1751. Back