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5.15 pm
Lord Thomas of Gresford: Does the noble Viscount not accept that, if these orders are to be imposed on people who have served their sentence, this amendment is completely compatible with the previous one?
Viscount Bledisloe: Yes, I accept that, but is it accepted that these orders can only be used against somebody who has already been prosecuted and served his penalty and invoked as a further punishment? If so, most of their purpose has gone. Is it accepted that that is the only circumstance in which you could satisfy Amendments Nos. 2, 87, 88 and 3?
Baroness Scotland of Asthal: I do not know whether the noble Lord, Lord Dholakia wants to answer that.
Baroness Scotland of Asthal: There are some internal inconsistencies in these amendments, but I took it that this amendment and the earlier one were probing, so maybe the inconsistencies can be viewed
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Nothing in these orders is to do with punishment. The purpose, as I have tried to make clear in earlier debates, is preventative, and Amendments Nos. 3 and 5 would mean that, before being able to consider an order to prevent future harm to the public, the applicant authorities would have to seek prosecutions against the persons concerned for every crime they had ever committed. Your Lordships will know that in making decisions the prosecution may often decide that a particular crime could be prosecuted but in the public interest it would not be appropriate under the circumstances.
This judgment process remains unchanged by this Bill. However, irrespective of whether a prosecution has been or will be sought, the Bill leaves it open to the applicant authority to seek to demonstrate to the High Court that a person has been involved in serious crime and that the proposed terms of an order will prevent, restrict or disrupt involvement in serious crime. One knows that on occasion some very complex cases take a very long time to come to court, and it may be necessary and appropriate for the agency to apply to the court in the interim for orders to restrict the activity that the criminal could participate in while that time frame prevails. The decision to prosecute an individual and the decision to apply for an order to prevent harm to the public are two completely separate issues based on different criteria. For that reason it would be inappropriate to restrict the ability of the High Court to impose a reasonable and proportionate means of preventing harm simply because a prosecution for an offence has not been sought for a legitimate reason.
I have some sympathy with the intention behind Amendment No. 9. It sets out expressly that the making of an order is without prejudice to any criminal investigation and that, once an order has been made, the investigation of the subject of an order must continue to be pursued. Appropriate prosecution of the people who have committed serious crimes will always be desirable, and these orders do not rule out that possibility.
As I said, the orders will be preventive and will be used as part of the criminal lifetime management of those engaged in serious crime. They may prevent harm while investigations are ongoing or they may help to stop a person re-engaging in serious crime after they have been convicted and have served a sentence. At Second Reading, the noble Lord, Lord Dear, gave us a very graphic example of some of those
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The making of an order will not rule out the possibility of a criminal investigation continuing but we do not believe that there is any need to say so expressly, as in paragraph (a) of the amendment. As for paragraph (b), we do not think that it is appropriate to require law enforcement to continue to pursue an investigation. We believe that it is more appropriate to give law enforcement officials discretion to manage each case based on its facts. For those reasons, I hope that the noble Lord will see that there is great sense in approaching this matter in the way that I have just described.
Lord Thomas of Gresford: Does the Minister agree that, if a prosecution is pending or contemplated, a person should be charged? Under the requirements of a serious crime prevention order, the court has to be satisfied that a person has been involved in a serious crime. If a person is charged, he is let out on bail pending the trial. Are there any conditions in Clause 5(3), for example, that could not be imposed on a bail order?
Baroness Scotland of Asthal: There may be orders referable to individuals’ business dealings; for instance, providing that they comply with or give information to Her Majesty’s Customs and Excise or SOCA. That is not a usual bail condition. It would be much easier for the court—and, one imagines, more proportionate, particularly if we suggest that there is some interference with the individual’s business activity—if the Serious Organised Crime Agency were put to the trouble of going to a High Court judge, who could balance these issues and see whether it was a proportionate and reasonable response. The provision does not mean that some of these conditions could not be bail conditions, because they could, but some of them might be better placed, and the response might be more proportionate, if they were made under a High Court judge’s determination, particularly in relation to business issues, which could be better balanced.
These are tools. By creating these orders, we will put another tool in the prosecution’s tool box, but the provision does not mean that all the tools have to be used in any given case. The most judicious judgment will have to be made about which tool needs to be used in any individual case with which the Serious Organised Crime Agency is dealing.
Lord Dholakia: I thank the Minister for her explanation. I also thank the noble Viscount, Lord Bledisloe, for his observations. We have an opportunity to look again at what revisions to the amendments might be necessary and at whether our concerns can be expressed differently. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 and 5 not moved.]
Baroness Anelay of St Johns moved Amendment No. 6:
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The noble Baroness said: My objective in tabling the amendment is to ask the Government to explain to the Committee how they expect the courts to announce in court the terms of a serious crime prevention order. Exactly how much detail is the judge expected to give? Of course, as the Minister sought to explain earlier, there is a two-limbed approach in Clause 1. It enables the High Court to make a serious crime prevention order against a person if that person has been involved in a serious crime and the test is satisfied that there are reasonable grounds for believing that the order would protect the public. We have discussed in some detail noble Lords’ concerns about the use of the civil burden of proof.
Regardless of how the noble Baroness has sought to reassure the House, the fact remains that we are being asked in Clause 1 to extend the use of civil orders against those who are only alleged to be involved in crime, and to do so in a significant and serious manner. An order could be imposed on a person who has never been convicted of a criminal offence or against whom no criminal proceedings have ever been instituted. Yet, despite the serious nature of the new orders, it appears that the court could be mysteriously vague in giving information in court as to the terms of the order, whose breach could lead to a person losing their liberty. We shall see in later debates on other amendments that orders can also have a significant adverse effect on third parties—something to which noble Lords, including my noble friend Lord Lucas, have already referred.
Paragraph 15 of the Explanatory Notes states:
“Subsection (3) provides that the Court may impose such terms in the order, whether prohibitions, restrictions, requirements or other terms, as it considers appropriate so to protect the public by preventing, restricting or disrupting the involvement of the subject of the order in serious crime”.
But Clause 1(3) merely provides:
So my amendment is very much a drafting amendment, which, to use the noble Baroness’s phrase, uses a tool to make the court—I would hope—act more clearly in giving information. We say that an order “must prescribe” what the person must or must not do. The amendment is a device to ask the Minister to set out what information she expects the court should be giving about the behaviour expected. If it is left too vague, there is surely a danger that the order’s objective—the protection of the public—would not be achievable. Is the court expected to give its reasons why and how a particular prohibition or restriction on a person would either specifically disrupt that person’s involvement in serious crime or protect the public? Will the court have to explain why that prohibition or restriction is not a punishment but is preventive? Will the court explain what impact it expects the order to have on third parties and how it has taken that into account in determining the terms of the order?
The experience of ASBOs and control orders suggests that the restrictions imposed in an order may well be drafted in an uncertain manner. Numerous cases have been brought by those subject to control orders who were unclear whether certain actions
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Clause 5 gives examples of what an order may provide; we will debate later the precise nature of those prohibitions. We see Clause 2 as the “Open Sesame” for a court to give what could amount to home detention over a period. The noble Baroness has already assured us that that is not the intention, but we shall need to look at the serious implications of the prohibitions and restrictions that could be imposed.
It is important to hear at this stage from the Minister what kind of detail the court is expected to announce in court to give clarity, certainty and, we hope, achievability to the terms of an order if the Chamber agrees that those should go forward. I beg to move.
Lord Mayhew of Twysden: Will the Minister in her reply undertake to deal with the provisions in Clause 5(7), which, on several readings, I find extremely confusing? Incidentally—and this is important in the light of our earlier discussions— that subsection includes provision conferring discretion on law enforcement officers to impose “prohibitions, restrictions or requirements”. Law enforcement officers are defined to include, for example,
5.30 pm
Baroness Scotland of Asthal: First, taking up the final point made by the noble and learned Lord, Lord Mayhew, I should make it clear for the whole of our debate that the Serious Organised Crime Agency is not the only agency that can apply for the orders. Subsection (8) sets out all the individuals who are covered by what “a law enforcement officer” means.
I turn to the first point made by the noble Baroness. I understand what she says about the amendments. If one looks at how anti-social behaviour orders have developed—many of them are, as she will know, made by a lower court—the High Court has had to direct and inform how they have been expressed because, on occasion, they have lacked the acuity that we need. I think that that is the import of her amendment.
That is why we chose the High Court as being the most appropriate court. As the noble Baroness will know, the authority that seeks to make the orders will have to file evidence and satisfy the court that the order that it seeks is justified on the evidence that it produces; it will have to satisfy the court that the order is right and proper, and consistent with the provisions not only of the Bill but of the Human Rights Act. In order to make a valid order, the court would have to express that order with sufficient clarity so that it can be enforced if breach is alleged.
The process and the rules that apply to proceedings in the High Court on orders made by the High Court would all apply to such applications. We anticipate that the court would be obliged to give clear
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I understand the anxieties of the noble Baroness, but I do not believe that those anxieties are well founded. The court would be expected to set out the terms of the order. All the terms of the order must be set out on its face for it to be capable of being enforced. The only exception will be if the order relates to provision of information. Then, the court may leave the details of how the information is to be provided to the discretion of the law enforcement officer. That is in Clause 5(7). As the noble and learned Lord, Lord Mayhew, said, that subsection is rather broader at the moment, but we shall return to that issue. It may be appropriate to amend it, subsequent to our discussion, to give it greater acuity than it has at present.
Just as with any other injunction, the High Court judge will have to set out on its face the person to whom the order relates, the nature of the restriction made and the terms with which the individual must comply. I imagine that it will be possible to challenge an order that did not comply with those ordinary rules.
I hope that that gives the noble Baroness the reassurance that she seeks. I agree with her that it is very important, when dealing with orders of this nature, to be clear about the terms and to be clear with a person who may be subjected to it, so that there is no difficulty or misunderstanding about compliance. I hope that what I have said will give the noble Baroness the reassurance that she seeks.
Baroness Anelay of St Johns: I am grateful to the Minister. She has taken me some way forward to seeing whether we might be able to resolve our concerns. I am grateful to my noble and learned friend Lord Mayhew of Twysden for referring us forward to Clause 5(7). I have tabled Amendments Nos. 60 and 62 on that matter; the former seeks to leave out subsection (7) and the latter leaves out the reference to the power of the law officers to determine at a later stage what prohibitions might be imposed on a person. The way in which the Minister has addressed my noble and learned friend’s comments today has given me some thoughts about how we might approach Amendment No. 60 when we reach it. There may be some way in which we can achieve a resolution, whereas previously I was concerned that we might not, so that has been constructive.
I agree with the noble Baroness that we are all trying to ensure that the provision is watertight so that there will be compliance—otherwise everyone’s time is wasted and the person still goes on to participate in serious crime, which none of us wishes. I am grateful to her for setting out how she sees the court’s role in those terms. It is helpful to have that on the record because, if there is not sufficient clarity in the terms of the order as announced in the court,
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Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 7:
The noble Baroness said: I shall speak also to Amendment No. 79, which is consequential, as it refers to the powers of the Crown Court, which follow closely on those governing the High Court in Clause 1. We wish to probe the meaning that lies behind the Government’s use of the phrase “such other terms” in Clause 1(3)(b). Clause 1(3)(a) states that the court may impose “prohibitions, restrictions or requirements”. That seems to cover every eventuality that one could dream up and certainly everything that we will come to later in Clause 5, where there are examples of what could be imposed. Those cover such matters as where one can live; whom one can see; whom one can talk to and indeed whether one can communicate with anyone at all; whether one can have a mobile phone, computer or e-mail; and whether one can travel, either in this country or overseas, or whether one remains at an address to be determined by the court. It covers matters such as whom one may employ and what documents one must—not “may” but “must”—reveal to the police. The list seems exhaustive. Our simple amendment asks what is added to the court’s range of powers by the words “such other terms” in Clause 1(3)(b) that would not be covered adequately by paragraph (a). I beg to move.
Baroness Scotland of Asthal: I thank the noble Baroness for the way in which she spoke to her amendment. This goes back to some of the comments that I made on earlier amendments. We are trying to give the courts a degree of flexibility so that they can tailor an order to best fit the circumstances of the case under consideration. We have been conscious that technology moves quickly and we want the legislation to stand the test of time, so we think that judicial flexibility, which would be limited by virtue of the reasonableness of the provisions and compliance with the Human Rights Act, would be an important advantage.
Clause 1(3) and the corresponding provision in Clause 19 allow the courts to impose positive as well as negative obligations on the subject of the order. Under an order, a person can be required to take action as well as not to take action, but always subject to the requirement that the terms must be preventive rather than punitive. We do not wish to see these provisions restricted in the way proposed because we do not want the courts to refuse to make an order simply because a particular term cannot be described as a prohibition, a restriction or a requirement.
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I hope that having heard my response, the noble Baroness will be content that these provisions do not cause the worry about which she might be concerned.
Baroness Anelay of St Johns: This may be another example of “yes but no but yes”, but perhaps it is a yes. I really sought to ask what else, if we have in Clause 1(3)(a) “prohibitions, restrictions or requirements”, there is that the courts might wish a person to do under an order. The noble Baroness says that the provision in paragraph (b), “such other terms”, could mean that the courts would impose positive obligations. If one accepts the idea of a serious crime prevention order, a positive obligation could in itself be an appropriate measure. On the other hand, in my thinking a positive obligation is a requirement to do something. This is certainly something that I shall want to think about because I am not sure whether the paragraph adds anything to the Bill. However, if it does no damage, I shall not be concerned. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 8:
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