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I recognise that noble Lords are concerned to ensure that violent offender orders are applied fairly—I recognise the importance of that point; the noble Earl, Lord Onslow, has made it patently clear to all of us several times this evening—and only when an individual’s risk level in the present day is such that further management or supervision is required, is essential, one could argue.
I assure the Committee that we share that concern and believe that the provisions as they stand would achieve that aim. However, we take seriously noble Lords’ views on this matter. I certainly recognise that the need for an up-to-date risk assessment may not be as clear as it could be in the Bill. I therefore undertake to table an amendment on Report that will put this requirement beyond doubt. Although we may not go as far as noble Lord seeks to go in this amendment, we have attempted to move some way in the direction of noble Lords’ argument, and for those reasons I hope that the noble Lord, Lord Thomas, will feel able on reflection to withdraw his amendment.
Lord Thomas of Gresford: I shall adopt the words of Lord Asquith and wait and see. I want to see that amendment well in time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 153B and 153C not moved.]
Clause 151 [Making of violent offender orders]:
The Earl of Onslow moved Amendment No. 154:
The noble Earl said: This is another amendment that has been produced by the clever people behind the scenes of the Joint Committee on Human Rights. Through it, we are asking to eliminate the present legal uncertainty. With this amendment and the
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Baroness Stern: I support the amendments of the noble Earl, my colleague on the Joint Committee on Human Rights, which attempt to set out what the Joint Committee on Human Rights would feel is the minimum standard to be applied before conditions are applied to someone that restrict that person’s liberty. Although the noble Lord, Lord West, does not think that the conditions are punitive, most of us might feel that they were if they were to be imposed on us, because it is hard to imagine what restrictions on liberty could be imposed that were not punitive. In those circumstances, it is appropriate that the person who will lose some aspects of his liberty has a right to various elements of a fair trial.
When the Minister replies, will he tell us a little more about the risk assessment process that has been mentioned a number of times? As far as I am aware, there are a number of risk assessment tools, none of which has very great validity. They are useful, but one could not say any more than that. If the Government are proceeding on the basis of risk assessment tools then the amendment proposed by the noble Earl is particularly important, because the risk assessment tools have flaws that could lead to great injustice. It would be very helpful to hear more on how the Government see this process of risk assessment and how some elements of due process can be introduced to protect the individual.
Lord Judd: I gladly support the amendment proposed by the noble Earl, Lord Onslow, and the noble Baroness, Lady Stern. This is another example of where we have to ask ourselves firmly whether we want a society that is about liberty and justice or whether we are drifting towards an authoritarian society in which those principles no longer fully apply. The provision to which this amendment refers is a serious infringement of liberty and a great interference with the individual, and it should not be lightly entered into. For those reasons, this amendment is important and I hope that my noble friends will take it seriously and respond appropriately.
Baroness Howe of Idlicote: I, too, should like to ask more about this amendment. Unless the Minister can tell us that these orders are subject to “beyond reasonable
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Lord West of Spithead: Just to reassure the noble Earl, Lord Onslow, let me say that it takes a great deal to disturb my sleep, so this is not perhaps something that particularly worries me. However, risk of violence worries a number of people in our society. As I have said, perceptions are very important.
As regards how this is dealt with, the police are the lead agencies. They liaise with probation and prison services, local authorities, if necessary, and other agencies. However, the courts make the judgments. Magistrates are the risk assessors. They will be used to making similar judgments, because they make them already in respect of ASBOs and sexual offences prevention orders. As I have said a number of times, I am confident that our magistrates can properly make the right and sensible decisions for this limited number of orders—our assessment is about 100 a year—for people who are particularly dangerous and are a real risk, which is why they are brought before the courts to be looked at in that way.
The noble Baroness, Lady Stern, asked how risk is assessed. We use the offender assessment system, Risk Matrix 2000. I agree that that is not by any means perfect, but, within the courts, on the basis of all the evidence, a sensible risk assessment can be made. I have faith in those people not to apply this in a draconian and rather stupid way. They will do it sensibly and it is best to let people do that. In the military, we call it “mission command”; we say roughly what we want and we let people get on and do it. I believe that they will be able to do that.
Violent offender orders are civil orders designed to protect the public from fear of violent harm. They are preventive and not punitive. I know that there is some debate about that, but that is how I see them. The conditions that we put down will show that. They seek to manage risk, not to further punish the individual. They are not just to look after people’s safety or public safety, but to look after the individual involved, because if he gets it wrong he will end up back in prison. It gives him a chance perhaps to take the right actions to prevent that from happening. Put simply, they are civil orders and the civil standard of proof should apply.
I am sure that noble Lords are only too aware that the issue of the standard of proof is not simple. There have already been numerous debates on whether the criminal standard should apply to other civil orders, the most recent of which was in relation to serious crime prevention orders. However, this issue has also been considered in detail in relation to anti-social behaviour orders and sexual offences prevention orders.
When claiming that the criminal standard should apply to violent offender orders, people frequently refer to the McCann ruling in the case of anti-social behaviour orders. In fact, the ruling concluded that ASBOs were civil orders but perhaps most significantly
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However, the criminal standard of proof has never been set out in legislation for the simple reason that it would be undesirable and potentially confusing to apply a criminal standard to a civil matter in legislation. This interpretation has also been applied to sexual offences prevention orders and serious crime prevention orders. In the latter case, we took it one step further and chose to specify the civil standard in the Bill, although we expect that in practice the courts will also adopt the quasi-criminal standard. Violent offender orders as currently provided for allow the courts to adopt the same approach as that for anti-social behaviour orders, sexual offences prevention orders and serious crime prevention orders. This means that in practice courts apply the quasi-criminal standard in relation to an individual’s past behaviour and require that there is sufficiently robust evidence that an individual has acted in a way that would warrant a violent offender order.
As I have said, consideration of whether an order is actually deemed necessary in the present day would be a court judgment, and we intend to make this very clear in guidance. Parliament has already accepted that the civil standard of proof can apply for other civil orders, as it can be applied flexibly. I urge the Committee to accept that the same reasoning should apply to violent offender orders. It is absolutely essential that violent offender orders are applied sensibly and appropriately while protecting the public from the risk of serious violent harm. On this basis, I understand the recommendation that there should be a full adversarial hearing before a violent offender order is made in respect of an individual. Moreover, I agree completely that an individual in respect of whom a violent offender order is being made should be given the opportunity to be heard during the proceedings. However, I have grave concerns about giving the same individual the opportunity to cross-examine the witnesses, and I shall set out why.
Violent offender orders are intended for the most dangerous offenders—only around 100 a year. For a violent offender order to be considered necessary, an individual must have demonstrated that they pose a risk of serious violent harm to an individual member of the public or the wider public. It is extremely likely that any witness to the existence of such a risk would object to being cross-examined, which may result in individuals being unwilling to give evidence of any sort. I am sure that that could easily be the case.
A further concern is that the witness may well be the same person who is being intimidated and harassed and is in danger of serious violent harm. It would therefore be a highly traumatic and frightening experience for that individual to be cross-examined and I do not think that it would be a good idea. However, I agree that the individual in respect of whom an application
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9.45 pm
Lord Thomas of Gresford: Do I understand the Minister to say that the evidence given by a witness could not be challenged by the person against whom the order is made? Surely that is an immediate breach of Article 6 of the convention covering fair trial. How can that be?
In any event, perhaps I may make this point. The Minister said that the purpose of the order may be to protect the offender himself. That does not appear in the Bill. The court has to be satisfied that the conditions in subsection (2) are met, the second of which is that he has,
- “acted in such a way as to make it necessary to make a violent offender order for the purpose of protecting the public”.
It has nothing to do with protecting him.
So what does the court have to be satisfied about? It has to be satisfied about action; about what he has done. The only way in which they can be satisfied about action—what he has done—is on the basis of evidence, and the evidence must surely be capable of being challenged by the person against whom the order is made, otherwise an appearance in an adversarial hearing, as the noble Lord said, is meaningless. Then the court has to be satisfied that it is necessary to make the order and that the purpose of making the order is to protect the public, again using the wide expression that I have already criticised.
I totally support the amendments that have been moved by the noble Earl and supported all round the Committee. I am sure that we will be discussing this matter further.
The Archbishop of York: I can understand anti-social behaviour orders being seen as some kind of civil law application, but the violent offender orders offer the possibility of creating offences. The unbelievable phrase “danger to the public” has been used, but I prefer “individuals or persons”, which is more realistic than “the public”. The standard that should always apply as regards the possible commission of an offence is that of the ordinary person on the old Clapham omnibus saying, “I am satisfied beyond reasonable doubt that a particular crime has been committed”. I find it difficult to simply say that we are going to use the civil standard when this person could be violent and commit terrible crimes .
Another thing I find difficult is what I call pre-emptive possibilities being put into legislation and the presumption that a person may commit a violent crime because someone has said X, Y and Z. This country has always run away from that kind of thing. If a crime has been committed, you would like the offender to be before these people, and simple threatening behaviour and language could be dealt with as a civil case, but here we are talking about the likelihood of endangering individuals and persons, and I do not understand why it should be dealt with
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For the sake of protecting the person who may be under the order and the persons or individuals who may be subjected to violent acts, I find myself persuaded that we must have a standard of beyond reasonable doubt, otherwise you can catch out many people.
Our doubt is not about magistrates but about the veracity of the evidence. There are people who can speak with great conviction and tell everyone, even under oath, that X, Y and Z happened; that is why in the courts of this land many people end up not being found guilty because of the veracity of the evidence. In Uganda, there was a terrible case I was trying, where the prosecutor simply said, “You must be guilty because Uganda has 11 million people, and they are not in the dock”. What kind of evidence is that?
It may seem more sophisticated using the civil standard but I, for one, question whether it will ensure the veracity of the evidence that we want to rely on. I am not satisfied. By simply saying, “The court must be satisfied”, you are putting magistrates under unnecessary strain. Let them be very clear what the evidence is and let them decide according to the standard. They know that people will come forward and say things. Is the Minister not aware that there are people who will say anything because they happen not to like your face?
Lord Mayhew of Twysden: I wonder whether the Minister can help me in my state of characteristic confusion. He said a few minutes ago that he will bring forward proposals that will provide the opportunity for P to appear before the court, but he sets his face against giving him the opportunity to cross-examine witnesses because that would be intimidating. The overarching requirement of the clause, however, is that the magistrates’ court shall be satisfied that conditions that are relevant are established. How can they be satisfied if they are not allowed to hear the evidence of the complainant tested? And how can it be tested if cross-examination is not permitted?
Lord West of Spithead: To answer the noble and learned Lord, Lord Mayhew, first, the evidence that I was talking about that can be used in the application was hearsay evidence. That is indirect evidence, as noble Lords well know. For example, a police officer has evidence from a number of individuals whom he has talked to. Normally, where he has evidence additionally from the Probation Service, prison services, local government and so on, he and those agencies will be allowed to be cross-examined but the individuals who have been spoken to will not be able to be cross-examined because they will probably not be willing to appear in court. That was what was meant. Clearly the police officers can be cross-examined. The prison services, probation services and all the other local government agencies can also be cross-examined in court as the matter is being investigated. That is how the magistrates will be able to come up with their conclusion.
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We all know of cases of mindless violence where people who have been identified as individuals who we should perhaps have been aware were a real danger to society have indeed gone on and killed people. Those cases are constantly being referred to in the media. This is aimed at stopping those things happening. It is not a case of three or four people in the local pub saying, “We don’t like Billy”; “Right, let’s get him”.
The Earl of Onslow: That is exactly what the Minister said. In the debate he said that people in the pub will complain to the landlord about being beaten up. He is now saying that is not the case. Which is it? Will pub gossip be taken into account or not?
Lord West of Spithead: I was taken slightly out of context there. The evidence will not just be gossip. I have said on a number of occasions—about seven, in fact; I wrote it down—that this will be to do with probation services, prison services and local government as well as all these other things. That is the basis on which the magistrates will take decisions. Perhaps this shows my simplicity, but I believe that if a magistrate were presented with mere gossip, he would jolly well say, “I’m bloody well not going to do this”. That would be my reaction if some defaulter came up before me, and I think they have enough common sense to do that.
As I have said, this is not the tidiest or nicest measure, but it is an additional arrow in our quiver that will help make the public safer and reassure them. There are a large number of people out there who are frightened of violent offences, even though we have reduced such offences dramatically, and therefore it is important to do this.
Lord Thomas of Gresford: I am sure that magistrates frequently address the police in the terms the Minister has referred to, although I have not personally heard it.
Suppose that a policeman comes into the witness box and says, “I’ve got statements. I have interviewed three people, and they say this is a dangerous man”; the defendant says, “But I’m a Muslim. I’m living in a white neighbourhood, and everyone hates me around there”, and that is put to the policeman. Where do we go from there? Do we ask them to go back and check that there is no racial or religious prejudice involved, or whether they have had a quarrel about the dog or the amount of noise coming from someone’s house? How is the individual who will be subject to these restrictions able to get justice when he cannot actually challenge the witnesses?
I have just been at a case in the Old Bailey where every witness gave evidence from behind a curtain with a voice modulator so that we could not hear how they sounded unless we put on earphones, which were not available—obviously—to the defendant in the dock. There are ways in which these things can be handled which are accepted as part of the tradition of justice in our courts. It is not necessary to bring forward these civil orders in order to rely on hearsay
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10 pm
The Earl of Onslow: Let us have a crack at looking at the McCann case. In the Joint Committee, we considered that violent offender orders were not the same as ASBOs, and therefore that the McCann case probably did not apply. When the Minister said, “something bloody something”, I thought, “That’s Jolly Jack Tar talking if nothing else, not a government Minister”, but it definitely lightened the proceedings.
During the past 10 or 20 years, we have had a problem with police and what can be classed as “the usual suspects”. We have had a problem, certainly in two IRA cases, where the police thought that they had got the right sort of person, and even the criminal level of proof was established. But that was because of what can be called “the usual suspects”. So that part is not good enough. The Minister’s defence of there being no need for witnesses reminded me of a certain piece of land on the edge of a Caribbean island where people are seen in shackles wearing orange suits; in other words, it sounded like the Guantanamo Bay answer.
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