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As has been said, the violent offender orders are civil preventive orders. Their principal aim is to protect the public from the most dangerous violent offenders who still present a risk of causing serious violent harm and who are not being managed. Although there are a number of ways in which we manage them, these orders are yet another arrow in our quiver. The orders are not punitive and not intended as an additional punishment. We can debate that, but that is how we perceive them. Instead, they acknowledge the importance of risk management.
The Earl of Onslow: How can the Minister say that they are not punitive if they subject people to curfew? I am not arguing that people should not be punished, and of course I am not arguing that the public should not be protected from violence, but to say that locking somebody up for 12 hours a day is not punitive stretches the bounds of imagination beyond the imagination of Walt Disney.
Lord West of Spithead: The noble Earl raises a good point, but we do not know exactly what the conditions will be. The condition might not be that people are locked up; it might be that they are not to go into a certain area. We will list those conditions.
Lord Thomas of Gresford: The Minister, if I understood him correctly, said that the conditions would not be punitive or an additional punishment. Is he saying that because he knows that if they were an additional punishment, they would be in breach of the Article 7 of the European Convention on Human Rights, which provides:
“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”?
To add at the end of a period of imprisonment and licence thereafter a series of restrictions and conditions which could be described as punitive would be adding
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Lord West of Spithead: I am not saying it just to get round that provision; I am saying that they are not necessarily punitive. I can think of a case in an area where I lived in north London where it would have been very handy for a chap who was causing immense trouble and difficulty in the road concerned not to have been allowed to go into it. That would not have been punitive, but it would have made people in that road considerably safer.
The Earl of Onslow: The point is that the chap to whom the noble Lord referred is committing a crime; so charge him with that crime and punish him by due process of law. That is what those of us who are ad idem on this issue believe. People should be punished for breach of the law and we should not just add on and tack on.
Lord Thomas of Gresford: The perennial problem with this type of order is that you create a personal criminal code for an individual. You say, “You can't go into this street. You can't go into that park. You can't meet with X” based on hearsay evidence and civil procedure. If he does go into the road or the pub or meet with someone else, then under these provisions it is a crime, just as it would be if he breached a condition of an ASBO. You are acting punitively. You are imposing criminal sanctions on a person for a breach of something that is not a crime for anyone else in the population. That is the problem. There is a real flaw in these orders.
8.45 pm
Baroness Stern: I hope the Minister does not mind having to remember so many interventions at once. I got the impression from what he was saying that he is not yet clear about what the restrictions will be. In this very helpful letter—everyone remembers the moment they received their copy; I got mine at 2.47 pm today—it is suggested that an amendment to the Bill at Report will include a list of restrictions that could be imposed on those subject to these orders. The Joint Committee on Human Rights feels very strongly that the restrictions must be in the Bill and must be debated so that those who are subject to them can have some sort of certainty. When are we likely to see these restrictions—so that the Joint Committee on Human Rights can look at them and see how far they satisfy the need for people to know what might happen to them, and so that we can be satisfied they are proportionate?
Lord West of Spithead: A number of points have been raised. I still do not believe that the orders are punitive. It is not a criminal sanction. In reply to the noble Earl, Lord Onslow, it is not always possible to prosecute people when they are causing real concern, fear and almost terror in an area. I know that from an area in north London where I lived and saw for myself
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In reply to the noble Baroness, we aim to produce an indicative list of the sorts of sanctions at Report. I hope that I will answer some of the other questions as I move through the brief.
The provision is based on the risk that these people present to the public. It is not a simple concept—it is difficult, complex and dynamic. It is extremely difficult to predict and manage, but that is not an excuse to do nothing. We cannot wait until that risk presents itself in the form of serious violence. We can stop violent attacks occurring and recurring by doing this.
Lord Thomas of Gresford: With the greatest respect, I must say that the letter I have in my hand, which I received at 12.45, says:
“We will set out on the face of the Bill that a Violent Offender Order should only be made to protect the public from any current risk of serious physical or psychological harm”—
—not a risk that may emerge in the future, but a current risk.
Lord West of Spithead: That is absolutely right. That is the risk that I am talking about. It is a current risk and it will be assessed by magistrates and the judiciary. I have great faith in their common sense in applying sensible rules to make sure that they are looking after the public. One of the strengths of our judiciary and magistrates is that they can do that. That is how this will be done. Violent offender orders will allow us to do that by enabling the court to impose prohibitions—which as I said will be listed—or conditions on an individual for the purposes of public protection.
Baroness Howe of Idlicote: I hope that the noble Lord will forgive me, but I am trying to understand this. The nearest I can get to it is a conditional discharge. I speak as a former magistrate. Someone who receives a conditional discharge must have committed an offence. The aim of giving a conditional discharge is to try to ensure that the offender does not do something that is likely to result in them receiving a real sentence. Are we talking about there not being enough police to go into an area if they hear about problems and wait there until they can arrest someone for an offence? I find this very difficult to understand. Perhaps the Minister can describe the conditions that he has experienced in north London that would merit this measure.
Lord West of Spithead: I had hoped that the noble Baroness would have understood from my earlier remarks how this measure works. You can be in a situation where someone is acting in a very threatening and worrying manner but they do not do anything that enables the police to arrest them and charge them. Indeed, sometimes they can damage cars—
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The Earl of Onslow: Damaging a car is a criminal offence. In a civilised society you should not say, “We think you might commit a violent offence although we can’t prove it but don’t go to the pub on Tuesday”, or, “Stay in your semi-detached villa in Ealing from 3 o’clock in the morning till 3 o’clock in the afternoon”. That is not law; it is just whimsical.
Lord West of Spithead: I fear that that shows a lack of understanding of what goes on in some parts of the country and in some inner cities. It is extremely difficult to prove that somebody has done something that may, none the less, be highly intimidating to the people in that area. That is what—
The Archbishop of York: If I am in a pub and somebody behaves in a threatening manner, and people can testify to that fact, and the criminal law says that you should not behave in that manner in a public place, somebody is committing an offence. The Minister says that these orders are not meant to be punitive, so he is already ducking the question that the purpose of punishment is—in my terms—to elicit penitence. So you are not going to punish anybody; rather, you are saying, “We’ll hold you back but the police should not come in because this is a difficult matter”. Am I hearing the Minister right? I am not so sure that we want orders. What we actually want is for the criminal law—after all, this is called the Criminal Justice and Immigration Bill—to determine whether a crime has been committed. Either a crime has been committed or it has not. If it has not been committed, for heaven’s sake what are these orders for?
Lord West of Spithead: We are talking about going into a pub and people saying that a crime has been committed and being prepared to talk about it. However, I am afraid that there are areas in our country where people will not do that. People will not come forward, as they are scared. Yet one knows exactly who the individuals are who are causing this problem and posing a great risk to others. That is what these measures are aimed at.
Baroness Stern: I am sorry to interrupt but it is very important that we try to get to the bottom of this. The Minister talked a lot about what goes on in north London. Another thing that goes on is that certain groups of people do not like other groups of people. Some people say, “There are three black boys there and I find that threatening”. Will that be reason enough to make an order, because those people happen to be young, they happen to be black, they laugh and shout and when you walk past you think that they are talking about you when of course they are not because they are talking about something else? Is there not a very real danger in what the Minister is trying to sell us that it simply becomes a way of trying to deal with community tensions rather than trying to resolve them? Is there not a danger that one may criminalise one segment of the population? Does the Minister accept that we risk that happening?
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Lord West of Spithead: I do not accept that at all. That is not what the measure is aimed at. It is aimed at people who have previously committed violent offences. The situation is then looked at and subjected to a risk assessment by magistrates. Generally, I have a lot of faith in magistrates; perhaps it is because I have been at sea for many years, but I have a lot of faith in their common sense.
The Earl of Onslow: The noble Lord said that, because someone has committed a violent offence before, we are going to impose another restriction on them. That is double jeopardy in anybody’s book. It is punishing people a second time around and that is plumb against the European Convention on Human Rights and, above all, against English judicial tradition.
Lord West of Spithead: We accept that in relation to domestic violence and that is the basis on which we are approaching this. It certainly will not pick up people who are just making a noise and doing things like that. We are all used to that; those things happen. It is for people on whom a proper risk assessment has been done and who are considered a real risk to the public. This is not going to be done to lots of people. It is another arrow in the quiver to deal with that small group of people whom we cannot control in any other way. One of the main roles of government is to protect the people and I believe that this measure will do that. I am afraid that there are areas of our inner cities and other parts of the country where people are terrified of others acting in certain ways. This is a way of protecting them. It is up to magistrates to use their experience and common sense to assess the risk and the level of conditions to be used, although we are giving indicative conditions. I have faith in their ability to do that sensibly.
The noble Lord, Lord Kingsland, asked why we need violent offender orders when we have public protection sentences. We intend violent offender orders to build on and to complement other public protection measures. As I said, they are another arrow in the quiver. I agree that they are not perfect, but they will provide a further tool to ensure the ongoing protection of the public from the most dangerous violent offenders who are considered to pose a risk of serious violent harm. The judiciary will have to assess that risk. In particular, violent offender orders will address certain current gaps in the risk management arrangements. I shall set out those gaps, which may answer some of the questions.
First, as the Committee will be aware, the public protection sentences were not introduced until 4 April 2005. That means that there is no provision for the ongoing risk management of violent offenders sentenced prior to that date. Secondly, since the introduction of public protection sentences, the point at which an individual comes to the end of their licence period varies according to the type of sentence that an individual was given for the original qualifying offence. In all cases, there could be a point at which an individual’s sentence for the qualifying offence has expired or been revoked but his or her behaviour has since come to the
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Having identified those gaps in risk management arrangements, we cannot ignore them. We have a duty to ensure the protection of the public from serious violent harm. Violent offender orders are an important tool in achieving that. The orders closely mirror other civil preventive orders, particularly sexual offences prevention orders, which have proved to be a highly valued tool for managing the risks posed by sex offenders and have been welcomed by public protection agencies and local communities.
The time has come for us to acknowledge the important role that civil orders play in the protection of our public. They reduce harm and reassure communities that the Government place the protection of the public at the heart of everything that they do. That reassurance and change of perception are extremely important, because fear erodes the quality of life for a considerable number of our people.
As violent offender orders have progressed through Parliament, we have listened carefully to the points raised in the other place and by experts in the field, including the Standing Committee for Youth Justice and the Joint Committee on Human Rights. We thank the Joint Committee on Human Rights for its input; it is important and we have looked at it. In the light of the concerns that have been raised, we have written to noble Lords, who will have received my letter at varying times. I am most impressed at the precision of that, which is slightly better than the tactical UHF circuits in Her Majesty’s warships. I was getting the timing precisely to the minute, which was most impressive.
9 pm
The amendments will make seven separate changes to Part 9. First, we will set out in the Bill an indicative list of the conditions that could be imposed as part of an order or interim order, in the same way as for serious crime prevention orders. Secondly, we will provide that interim violent offender orders should be made only where there is clear evidence to support the case for a full violent offender order. This will be on the basis of prima facie evidence, or similar. Thirdly, we will provide that interim violent offender orders are non-renewable, while lifting the current four-week limit on their duration. Fourthly, we will provide for the applicant and the offender to have the right to be heard during the making of an order. Fifthly, we will exclude under-18s. Sixthly, we will introduce a maximum length of time, namely five years, for which orders can be imposed unless renewed. Finally, we will specify more clearly in the Bill that violent offender orders can be used only to protect the public from a current risk of serious violent harm.
That is a comprehensive package of changes, which addresses the legitimate concerns that have been raised. I can see that people feel very strongly about this, and
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The amendments in this group were to do with protecting a specific named person or named persons from the risk of violent harm. As noble Lords will be aware, the purpose of the violent offender orders is to provide a means of continuously protecting the public from the most dangerous violent offenders. Violent offender orders will only ever be made on the basis of an up-to-date risk assessment. The noble Lord, Lord Thomas of Gresford, stressed that this risk will sometimes be targeted at a known specific individual, which is correct; that is a much easier case. However, this will not always be the case. Sometimes the risk will be targeted at a group of individuals, for example in the case of hate-related violence. In the Bill, for example, we have already considered the need to protect lesbian and gay people from the dangers of incitement to hatred and the violence that this can lead to. In some cases, it will simply not be possible to predict any individual target and it will be more general. Let me make it clear that just because the risk of violence is not focused on one specific member of the public, it does not mean that the risk does not exist.
Over the past few years, we have all read in the press about numerous unpremeditated violent attacks against innocent members of the public, some of which have been quite ghastly and obscene—the press loves reporting those. The victims of such attacks were not targeted in advance by their attackers and it would not have been possible to predict their specific risk of victimisation. It is precisely these attacks that prove that we must be able to protect the wider public from the risk of violent harm. Violent offender orders, as currently provided for, allow us to do this by enabling the court to place restrictions on an individual, where needed, to protect the public as a whole from the risk of serious violent harm.
We have a duty to protect the public. It would be irresponsible and inappropriate to narrow the scope of violent offender orders. They must be available to protect both specific individuals and the wider public. I therefore ask the noble Lord to withdraw his amendment.
Baroness Stern: I would be grateful for some help. As I understand it, people are going to be risk-assessed and then an order will be applied for. However, the risk assessment will not be triggered by the fact that they have done anything violent, because if they had they would be charged with a violent offence. Can the noble Lord tell us how someone will know that the person is a risk when that person will not have done anything that they could be charged with? Perhaps I can make myself clearer: on what basis will someone trigger the process that leads to them being put up for an order?
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Lord West of Spithead: It is quite difficult to give exact examples, but let us say that the police witness someone drinking excessively and acting in a slightly strange manner to members of the public. The local bar manager reports to the police that this man has been highly abusive to the manager on a regular basis and to customers on a number of occasions. The man has made threats to people, none of whom is willing to say anything to the police about it, because they are too scared. The barman feels that his family and his—
Baroness Falkner of Margravine: I really do not want to add to the noble Lord’s woes and the hour is late, but—and there is always a “but”—what is really alarming about that example is the numbers that might potentially be involved. I wonder whether, in choosing that as something that might be illustrative of where these orders will apply, the Government have done any research on what their citizens get up to on a Saturday night in our urban city centres. Do the Government have any idea, regarding the behaviour that the noble Lord is describing, of how many people this might apply to, not least young women?
Lord West of Spithead: The noble Baroness raises a very good point. These orders, which will go through a list of assessments, will be looked at by the judiciary and then be applied, will probably number about 100 a year. That is the sort of number that we are looking at. I could go into the centre of lots of towns—I dare not mention one, because it will no doubt appear in the media—and find several hundreds, if not thousands, of people behaving in ways that I would find slightly extraordinary. We are looking here at people who are a real risk to the public. That is what we are aiming at and that is why the risk assessment is done.
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