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As I said, I have faith in the common sense of our judiciary and others to make this assessment. If this saves just a few lives, it is worth doing. If it makes our public feel safer, it is worth doing. That is why it is important. Our assessment is about 100 people a year. It is yet another arrow in our quiver of different ways in which we can tackle this problem. There is no one easy answer, I am afraid. We are actually reducing the number of violent crimes, but violent crime remains an appalling thing and is a blight on large areas of our inner cities. This measure will do something to tackle that.
Lord Thomas of Gresford: It is helpful to look at the situation that is envisaged. The person against whom the order has been made has been convicted of one of the specified offences set out in Clause 148(3), which are serious offences. He will have served his sentence, he will have served the period of licence thereafter and then he is to be risk-assessed. By whom? Clause 150 states:
“A chief officer of police may by complaint to a magistrates’ court apply for a violent offender order to be made in respect of”,
the particular person. The officer can make that application if,
- “the person has, since the appropriate date, acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of that person”.
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So the risk assessment initially comes, presumably, from the police. However, Clause 150(5) states:
“The Secretary of State may by order make provision ... for applications under this section to be made by such persons or bodies as are specified or described in the order”.
Therefore, the Secretary of State can, by order, extend the risk assessment from the police presumably to the probation officer and possibly to the local vicar or perhaps some other organisation. We have been talking a lot about bailiffs. Perhaps a bailiff will come within an order of this sort and be able to make an application and a risk assessment.
The person applying for the order will then take the evidence that he has gathered, possibly from people who will not come forward to give the evidence themselves because they are too frightened to come forward. A policeman will say, “I’ve spoken to A, B and C, and they have told me that this lad is living down the road. He’s a Muslim. They don’t like him and they’re afraid of what he’s going to do. I am putting this in front of you, Mr Magistrate, for you to become a risk assessor”. It will not be a case of magistrates deciding guilt or innocence, which of course is what they have done since the beginning of time in this country; they will now become risk assessors. The policeman will then say, “The evidence that I bring forward is not being given by people in person but in statements or on a piece of paper, and we’re not saying who produced it, so no one can investigate whether the original complainant has a grudge against the individual concerned”—
The Earl of Onslow: Perhaps I may interrupt the noble Lord. Is it not also true that there is no possibility of testing this evidence by cross-examination?
Lord Thomas of Gresford: Precisely. It may be that an order is made on ordinary evidence called before the magistrates’ court, but that is not the idea. The idea is to use the civil procedure so that the rules of civil evidence, which include hearsay, can be relied on. The magistrate sits there as the risk assessor and under Clause 148, which we are considering, he can make such prohibitions, restrictions or conditions as he thinks necessary. At the moment, there is absolutely no limit on that. We are promised indicative conditions by the noble Lord but not an exhaustive list. Therefore, the magistrate, as the risk assessor, has to ask himself, “How do I cope with dealing with this particular person, against whom so many neighbours speak?”. The answer is that he makes a wide order, and he is entitled to do so because a magistrate can pass such prohibitions, restrictions or conditions in the order as he,
Therefore, he is being asked to protect not the people in the street in north London in which the noble Lord lives or a particular individual but the public in the United Kingdom. How can that magistrate, who is trying to become a risk assessor, make an order that will impose a restriction or condition in relation to all
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The purpose of my amendment is to limit the scope of the order to a specific individual or number of individuals so that at least there will be something concrete for the magistrate to grasp on to and he will be able to devise a set of personal rules for the individual that possibly can be obeyed. Imposing conditions and restrictions that relate to everyone in the United Kingdom is so wide as to be impossible to maintain. That is what we are on about here.
What is more, according to the noble Lord, those conditions and restrictions are not to be punitive or additional punishment, even though a person will go to prison if he breaks them. The fact that he is not allowed to go into a pub or down the street or get on a train and go somewhere else in the United Kingdom is not punitive or additional punishment. The whole system that is envisaged is illogical, unjust and unfair.
Clearly, we have to see what sort of amendments the Government will produce on Report, based on today’s letter. I plead with the Minister not to give us things just before we walk into the Chamber, expecting us to pick up instantly what is being proposed and giving us no time to consult others, to have discussions among ourselves or to have cross-party discussions. Please at least give us proper notice of what the Government intend. The Bill is not new and it has been strung together from the very beginning. I mentioned at Second Reading the 200 clauses and amendments placed before the House of Commons on Report when there was no possibility of debating more than a fraction of them. The same thing is happening to us. We are given not a list of amendments but intentions of the Government just before we walk into the Chamber. I hope that we will know what the Government have definitely in mind long before we get to Report stage. Having got that off my chest, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 pm
Lord Thomas of Gresford moved Amendment No. 149A:
The noble Lord said: This amendment features in one of the points made by the noble Lord in his letter. I understand that instead of,
his intention is to say “not more than five years”. I will be glad to hear that from the Dispatch Box. For that purpose only, I beg to move.
Lord West of Spithead: As I have already explained in the context of the debate on the previous amendment, these orders are intended to protect the public. We know that risk is a difficult issue, and we have had a certain amount of debate about that. I am
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We know that this risk will present itself in different ways and at different times. We have imposed a minimum length of two years for every violent offender order to ensure that the risk of serious violence can be managed and reduced. After this two-year period, we believe that the court is best placed to assess, on an individual basis, the most appropriate length of order. We accept, however, that there is a case for an upper limit, given that the risk posed by a person subject to a violent offender order will change over time. Accordingly, we propose to table an amendment on Report that provides for a maximum length of five years. It will remain open to the police to apply to renew an order if circumstances should justify that. It will, of course, be for the court to decide whether an extension is indeed warranted.
I apologise for the short notice of my written notification. I was keen to get a written notification out to people so that they could see this, rather than just mentioning it on my feet, on the Floor of the House. I hope that I did the right thing, or perhaps I should just have mentioned it on the Floor of the House. I am not sure what the normal procedure is. I thought that, in that way, I would at least give the Committee some advance notice. On the basis of what I have said about the five years, I ask the noble Lord to withdraw his amendment.
The Earl of Onslow: I am pleased that the period has been reduced from 10 to five years. It is totally fair to thank the noble Lord for the letter, as opposed to just telling us on his feet, but the letter still could have arrived earlier.
Surely, if you are going to renew the order after five years, it presumably means that the chap has done something wrong, otherwise you would not want to renew it. So, if he has done something wrong, he is either going to get put inside for breach of an order—sent to prison without fair trial—or he will be tried for a crime and sentenced, which is how most of us would like it to be, rather than this general power to lock people up without due process of law. However, if he has done nothing it probably shows that the order was not necessary in the first place.
Lord West of Spithead: The noble Earl, Lord Onslow, raises a good point. It might show that. It might show that the order actually had some beneficial effect for him because he realised that he had to keep within certain conditions, like not going into an area where historically he had always done things. It could be taken either way.
I agree entirely that the best thing for someone who is a thug and a danger and that sort of thing is to prosecute him properly and put him behind bars. I could not agree more. However, it is not always that easy. That is the problem.
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Lord Thomas of Gresford: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 150 to 152 not moved.]
Clause 149 [Qualifying offenders]:
Lord Thomas of Gresford moved Amendment No. 153:
The noble Lord said: Again, this is another matter where the noble Lord, in his letter today, has been good enough to tell us that he will accept that these orders should not apply to people under the age of 18 years. I wait to hear confirmation from the Minister at the Dispatch Box and beg to move.
Lord Bassam of Brighton: The noble Lord raises the issue of the effect of the orders on those under the age of 18. I confirm that we will table such amendments.
We cannot overlook the fact that a small number of serious and violent offenders will be under the age of 18 and, perhaps even more significantly, that the majority of these young people may pose a risk of serious violent harm to other young people, whom the Government have a duty to protect. However, let me make it clear that it is for these reasons that we still believe that violent offender orders should in principle apply to both adults and young people.
We acknowledge that, in practice, most young offenders convicted of a serious violent offence, who are therefore potential candidates for violent offender orders, will be 18 or over by the time they would have completed their sentence for one of the trigger offences. We are therefore content, for the time being, to limit the application of Part 9 to adult violent offenders and review the position in a few years’ time, once the violent offender order approach has bedded in. It is always wise to reflect on how these things are working, just as we do from time to time with ASBOs and, no doubt, will do with other similarly structured orders. We give a commitment to table government amendments on Report, and I hope that the noble Lord, having heard that, will see fit to withdraw his amendment.
Baroness Stern: Can the Minister confirm that he said that it was not the Government’s intention to make such orders available to under-18s for the time being? Does he therefore mean that the Bill be open-ended in that some procedure can be brought in, perhaps by negative resolution, which will enable it to be extended to under-18s at a later date? Or is it absolutely clear that it will not apply to under-18s? I think that the Committee would be happy to know that.
Lord Bassam of Brighton: No, we would have to bring forward new legislation, as I understand it, to capture the under-18 age group. I am saying that we do not rule that out. If this works well, as we believe it will, then, when we have reviewed the situation some way down the line, we would be foolish to deny
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Lord Thomas of Gresford: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved Amendment No. 153A:
The noble Lord said: Amendments Nos. 153A and 153B are paving amendments for Amendment No. 153C, which is included in this group. In Clause 149, a qualifying offender is identified as,
Subsection (2) deals with a person who,
or who has been found to be insane or under a disability and could not be convicted of the offence. Subsection (4) deals with a conviction in a country outside England and Wales and again relates to a conviction for a period of imprisonment of at least 12 months.
The purpose of the amendments is to put a limit on that. For example, a person who had been in prison for a period and released and for whom the period of licence, if any, had come to an end, should not, at a distance of 11, 12 or 15 years thereafter, be made the subject of a violent offender order. There should be a 10-year limitation from the date of completion of a sentence under subsection (2); a 10-year limitation from discharge from a hospital order or a supervision order under subsection (3); and a 10-year limitation from the completion of a sentence in a country outside England and Wales under subsection (4). The purpose of the amendments is to insert as subsection (4A) the provision that your Lordships can see in the amendment as drafted:
“A person is not within subsection (2) or (4) if ... the custodial sentence referred to in subsection (2)(a) or (4)(a) was completed more than ten years prior to the date of application for a violent offender order; or ... the relevant order in subsection (3)(a) or (b) was rescinded or otherwise terminated more than ten years prior to the date of application”.
We think it essential that there be some limitation. If 10 years have gone by since the date of release without any need for a violent offender order to be applied for, we respectfully suggest that it is too late, unjust and unfair to make a violent offender order at a much later date. I beg to move.
Lord Bassam of Brighton: I apologise for being slightly slow in getting to my feet; I was expecting rather more interest in this than was the case. The
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I am sure that noble Lords will accept that risk is a dynamic concept. In some cases an individual may commit a violent crime once but then never present a risk of serious violent harm again. In other cases an individual's risk level may fluctuate over time. We know that there is no one-size-fits-all approach to risk management. Management and supervision must instead always be targeted on the specific risk, the risky individual and the context within which they are behaving.
It is precisely that issue that the noble Lord, Lord Thomas of Gresford, seeks to explore through the amendments. The Government's view of the matter is very simple and straightforward. Should a violent offender order be imposed in respect of an individual who was convicted of an offence more than 10 years ago, but who is considered still to pose a risk of serious violent harm in the present day? Absolutely; that is vital for public protection. However, should a violent offender order be imposed in respect of an individual who was convicted of an offence more than 10 years ago but who has lived a totally blameless life since? Absolutely not, in terms of public protection.
The Earl of Onslow: If he has not been convicted of an offence, he has lived a completely innocent life. Is the noble Lord not aware that an Englishman is innocent until proven guilty? That is a principle of English law which has been established even at kindergarten level. A man who has not been convicted for 10 years is blameless, period.
Lord Thomas of Gresford: The amendment addresses not the period of 10 years from the date of conviction, but 10 years from the date of release—the completion of the sentence. That may also include a period of licence after the physical imprisonment has ceased. So we are looking well into the future, long after that person has left prison or hospital, or had his supervision order discharged. As the noble Earl said, surely there comes a time when a person is entitled to say, “I have led a blameless life since my release from prison 10 years ago”? We cannot then go through the risk assessment process that I outlined, getting the local policeman to collect a few names and produce them before the magistrate to ask him to make one of these orders. It is only fair and just that there should be a limitation. There are limitations in almost every other field, apart from the actual commission of crime.
Lord Bassam of Brighton: I am grateful to the noble Lord, Lord Thomas, for his clarification. I understand the point. Of course the noble Earl, Lord
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I will be rather more sympathetic in my conclusion than was assumed from my introduction, but we need to run through these arguments. The violent offender order will be imposed only on the basis of an up-to-date risk assessment—that goes back to my point about fluidity and the need for a targeted and better focused risk assessment—and only when the risk of an individual is considered to be sufficiently high as to warrant further management or supervision. Noble Lords will need to attend to that point.
In recognition of the dynamic nature of risk, we are unwilling to restrict absolutely the definition of a qualifying offender to those who have offended within the past 10 years. To do that would mean that we were unable to manage and supervise individuals whom we know are capable of committing a serious violent offence and who still present a risk of serious violent harm. It would be highly inappropriate knowingly to leave the public exposed to such a risk.
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