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The Government have explained that the reason for it is dangerous and violent gangs, but the more we have thought about it this afternoon, the more we see that what most of these people-whether they were under or over 18-were engaged in should have been subject to an ASBO already. If it became even more serious, which is what the Minister is implying, surely
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It would be useful for a group of us to get together before Report to talk through this again, because I have felt more and more uneasy since we began debating it this afternoon and now feel less and less reassured of the need for the measure at all, let alone the safeguards that we are proposing. In that spirit, I beg leave to withdraw the amendment.
Baroness Walmsley: I shall also speak to Amendment 129. We have just been considering the first condition for imposing one of these injunctions in subsection (2). The combined effect of these two amendments is to subsection (3), to ensure that an injunction cannot be granted simply to protect the respondent from gang-related violence.
We do not believe that adults, except in the mental health or mental capacity context, should be subject to compulsory protective interventions of this kind. Let us look at what the person can be asked to do in Clause 34. Under subsection (3)(a), the applicant can know where the respondent lives and whether they move. Under paragraph (b), the respondent can be forced to be at a particular place at a particular time on a particular day and, under paragraph (c), the respondent must present himself to a particular person on that particular day. Also, under paragraph (d), the respondent can be forced to take part in a particular activity.
All those things are a restriction on the person's freedom, but it is also suggested that they could be done to protect that person from gang-related violence. It is inconceivable that an adult-a free citizen of this country-should be forced to do any of those things for their own protection. They may very well wish to do them if they feel threatened by a gang, but we on these Benches do not believe that they should be forced to do them.
Nor am I clear from the Minister's remarks whether these injunctions, in particular under subsection (3), would apply to under-18s. If they are to apply to children, I believe that there will be considerable difficulties of enforcement, particularly if the injunction is breached. There are much better ways of protecting children than submitting them to an injunction of this kind. Will the Minister therefore be very clear about whether it is the Government's intention that these injunctions, and any part of Clause 33, will be applied to under-18s? I beg to move.
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Lord Skelmersdale: My Lords, again, the noble Baronesses-perhaps for the purposes of this series of debates I can join them together as heavenly twins-have raised some important questions. These injunctions are unusual for two reasons: first, they carry the possibility of imposing positive requirements rather than just restrictions, which is what I look at as normal injunctions and which we will discuss in a later group; and, secondly, there is the potential use of an injunction to protect someone from harm.
The idea that a person's activities can be restricted for their own safety is extremely unusual and not one that we should accept easily. In what circumstances will this occur? Will there have to be any indication that non-gang members might be hurt before an injunction is used for this purpose, or will one be imposed at the first indication that any incident is being planned?
I am particularly concerned about the possibility that a respondent may fulfil the requirement in subsection (3)(b), which protects him from gang-related violence, but not subsection (3)(a), which prevents him from engaging in or encouraging or assisting gang-related violence.
I note that subsection (4) provides that the injunction could be for either or both these purposes, but surely subsection (3)(b) almost encompasses subsection (3)(a), does it not? I can understand Ministers' desire to prevent someone from taking an ongoing gang-related dispute to a public place, but that would surely be met by paragraph (a). I am less sympathetic to the idea that these injunctions will be used essentially to force someone to accept police protection, which is what I believe they really amount to. I hope that the Minister will give an explanation on that point.
Lord West of Spithead: My Lords, I have to concede that it is unusual for an injunction to be used in this way. We believe that there are situations in which taking such action is necessary and proportionate to prevent gang-related violence and to protect the individuals and the communities involved. If we take, for example, a situation where police intelligence suggests that a certain individual is at serious risk of a retaliation shooting by 40 members of the Hell's Whatsit gang, or whatever it is, an applicant authority could apply for an injunction to protect the respondent from harm by limiting where he goes and who he may contact. That is easier-
Baroness Walmsley: It seems to me inconceivable in a situation such as the Minister describes that, if the police told the person that that was the position, he would not make himself scarce very rapidly. Why do we need this provision?
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Lord West of Spithead: My Lords, the noble Baroness has been kind in intervening with that question because it allows me to go to a specific case. We do have individuals who seem to be stupid enough to do this. The case is of a youngster who was shot in the leg in 2007. He went back to the same area and, luckily, threatened a PCSO, so he was able to be taken into custody and charged. Immediately, however, bail conditions restricting him from going to the place
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You could say, "What an idiot. It serves him right if he's shot", although I think that that is a bit of a hard line. But we know from bitter experience that a youngster going home from football, for instance, will pedal his bicycle between those committing violent behaviour and be killed. We should not put up with that, which is why we have drafted this provision. I know that such an example seems extraordinary-I find it amazing, too-but it is the case. Although we could say, "Well, if he wants to do harm to himself, good luck to him", I am afraid that more is involved and it is not right to allow him to do that. By preventing that individual from going into an area where he faces risk, the provision will have achieved its purpose in protecting the public and him. Furthermore, where intelligence suggests that a particular member of a gang of, say, 40 is at risk of retaliatory attack, it makes practical sense to go for that one member rather than the 40 who are likely to mount the attack.
This provision also includes many positive elements such as mentoring, training and education. We are aware of the need to ensure adequate safeguards, so we will bear in mind the nature and requirement of the prohibition's duration. There is a right to appeal and express provision has been made to allow applications for discharge or a variation of the injunction. That goes back to the point made by the noble Baroness, Lady Stern, about someone having his family around him. I therefore believe that the positive elements of a gang injunction regime are important in this aspect, too. I probably have another example, but I am afraid that there are people who behave in extraordinary ways. On that basis, I hope that the amendment will be withdrawn.
Baroness Stern: This is not an area of which I have enormous knowledge. There are Members present in the Committee who have much more. However, in my ignorance, I would have thought that the police had systems for protecting people who were in danger and that it did not require a new law, an injunction and a court process to prove something beyond reasonable doubt. I understand that witnesses are protected and I assume that the police will see it as part of their duty to protect people who they know from information are in danger. Therefore, I ask the Minister again to reflect on how necessary this extremely strange provision is.
Lord West of Spithead: My Lords, it is extremely difficult for the police to do that. I return to the example that I gave earlier. Because the young man was arrested, having threatened to shoot a PCSO, it was possible to impose bail conditions excluding him from the area of the gangs who kept shooting him and whom he was trying to shoot. When that case went to court, he was found guilty and the exclusion and curfew were not part of the sentencing order. Therefore, with no bail conditions, there was no reason why he could not return and he did exactly that. It is difficult for the police to protect people who do not want to be
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Baroness Walmsley: My Lords, I thank the Minister for his reply. My former pupils occasionally used to say, "Miss, you're a hard woman". I may be a hard woman but I do not think that I am as hard as to say that someone as stupid as the person whom the Minister described deserves all he gets. I remind the noble Lord that sad cases make bad law.
The Minister is talking about a couple of very rare situations. I should not have thought that such a few cases justified overriding the principle that you do not in any way restrict the liberty of a fully competent adult who has not done anything wrong simply to protect him and for no other reason, especially given, as the noble Baroness, Lady Stern, has just reminded us, that the police have a whole spectrum of measures to protect witnesses. If someone is on bail, I am sure that certain conditions could be applied without the need for overriding the principle that a fully competent adult should not be restricted simply to protect them.
I accept that what the Minister tells me about the particular case is true-I have no reason to doubt it-but I do not believe that a very few cases of that nature are sufficiently serious to override that important principle. That is why my noble friend and I have laid the amendments. We will consider what the noble Lord has said and see whether we can find any more hard cases of that nature-he may wish to write to me if he has a whole file full of them, but I am not sure that I would be convinced even then. For the moment, I beg leave to withdraw the amendment.
Amendments 129 to 131 not moved.
Baroness Miller of Chilthorne Domer: My Lords, these two amendments would amend Clause 33(4) and Clause 34 to ensure that an injunction may only be made subject to Clause 34, which sets out a list of prohibitions and requirements. They would also remove Clause 34(6), which makes clear that the provisions are intended to be a non-exhaustive list of prohibitions and requirements. We are uneasy that the court should be allowed to require or prohibit anything as long as it falls within the purpose of Clause 33. We are interested to hear from the Minister just how wide he thinks the list should be. It would be helpful if he were to give some examples. I beg to move.
Lord Skelmersdale: My Lords, the noble Baroness is not alone. Like her, I read the current wording to allow the injunction to do anything at all, with Clause 34 being in the way of an example, rather than a restrictive list. Can the Minister explain whether we are right and, if so, why on earth the Government are doing that? What other possible restrictions or requirements might be imposed? The list in Clause 34 is already enormously vague, covering all sorts of aspects of a
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Lord West of Spithead:Noble Lords will be aware that Clause 33(4) sets out that a court may prohibit a respondent from doing anything, or require the respondent to do anything. I am aware that noble Lords have concerns about those provisions. However, I should make clear that in placing any prohibitions or requirements on a respondent, the court must be satisfied that the prohibitions or requirements are necessary to prevent gang-related violence as per subsection (3). It safeguards against the ordering of measures that are simply punitive and without true purpose.
Clause 34 gives examples of effects that prohibitions or requirements could have, and therefore that a court could consider, including effectively to prevent gang-related violence. The list is non-exhaustive to allow maximum flexibility to the courts and police to tailor the provisions to the individual circumstances of each respondent and thereby maximise the effectiveness of the injunctions in protecting the individuals and the public.
Amendments 132 and 138, when combined with other amendments tabled by the noble Baroness, would turn Clause 34 into an exhaustive list of prohibitions, instead of an open list of both prohibitions and requirements. The purpose of that appears to be to give a greater degree of certainty to the respondent and to limit the powers of the court. However, that would severely damage the flexibility of the injunction, which is a key aspect of its effectiveness.
Gang culture is a modern problem that appears to be changing and evolving all the time. The courts need the flexibility to evolve with the problem, and we do not want to restrict their ability to tackle these issues on an individual and case-by-case basis. I draw noble Lords' attention to Clause 34(2)(c), to which the noble Lord, Lord Skelmersdale, referred, which makes reference to animals. That demonstrates what I am talking about. Five years ago, it would not have crossed our mind to include such a provision. However, we have seen a steady and exponential rise in the number of gang members using particularly vicious dogs to intimidate and to perpetrate violence. If that subsection were not included in an exhaustive list-and it would not have been before now, because we would not have thought of it-the court would be powerless to make provision in that respect.
The problem of gang violence will continue to change and evolve, as it does all the time, because it ties in with culture. There will be new trends that the Government cannot foresee. We believe that the provisions need to be able to keep up with the changing profile of gangs.
I recognise the concerns that lie behind these amendments, but we maintain that Clause 33(3) adequately safeguards against unnecessary and punitive prohibitions. On that basis, I ask that the amendment be withdrawn.
Baroness Stern: Bearing in mind the many discussions that we have had in this House about the conditions attached to control orders, I think that the Minister said "anything that is necessary to prevent gang-related
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Lord West of Spithead: I would not see that as something that would ever be done, because that would be a punitive action; it would not be proportionate. Although if we said, "Right, you are never to leave your house", we would know that he is not going to go down the Cromwell Road, or wherever it is, that would not be proportionate. We want to stop him going to Cromwell Road, where we know that the person whom he wants to shoot is and where the person who wants to shoot him is. That is where the debate would lie and that is how it would happen.
Lord Mackay of Clashfern: My Lords, if the Minister is looking at this again, I wonder whether the words "a particular place" are important. They occur in Clause 34(2) in paragraphs (a), (b), (c) and (d). I wonder whether in paragraph (b) an order is envisaged against the person associating with particular persons. Why it should be "in a particular place" may not be not apparent; but the definition of "place" includes an area, which could obviously be big enough to prevent the person being with particular persons. The whole thing is somewhat complicated, and I understand the anxiety. It may be that under the restriction in Clause 33, the judge who is imposing the injunction would have regard to the need for it. In a way, it is better not to have examples at all. If we are going to leave it to the judge, why have this rather interesting list?
Lord West of Spithead: My Lords, the noble and learned Lord raises an interesting point. May I take it away to mull it over? I need to talk with the team. I am a great believer in allowing people for whom I have respect to make decisions on a particular case in local circumstances. Wherever possible, I would like to do that, rather than have central government decide things. Perhaps I may consider that and come back on the issue.
Baroness Miller of Chilthorne Domer: My Lords, I am not naive and I know that there are issues here. That was brought home to me recently by a talk from our neighbourhood police officer near my flat in Kennington. She was talking about particular problems at the moment, and one was hanging Staffordshire bull terriers-Staffies-off trees to strengthen their jaws. She requested that we ring her should we see any Staffies hanging off trees by their jaws, so I know that really horrible things happen. Undoubtedly those Staffies are put in that position for an unpleasant reason: to use them in dog fights or to make their jaws stronger to attack the other gang. I know that these things are happening right on our doorstep. Nevertheless, there are very big questions here.
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The House sat through endless debates on control orders, and quite rightly, but where are we with control orders now? Have they been found to be legal and appropriate to apply even to terrorists? We are in effect bringing in a very similar thing here, but applying much less debate to it because there are many fewer of
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Baroness Walmsley: In moving Amendment 133, I will also speak to Amendments 134, 136, 137, 139, 140, 142, 142A, 143, 146 and 147, which are grouped with it. This group of amendments would amend Clause 34 by removing subsections (3) and (4) and make consequential amendments to Clauses 33, 35 and 40 to remove the ability of the court to require a respondent to do something rather than prevent them from doing something.
The powers given to the courts by Clauses 33 to 35 are, as has been said, extremely open ended and would allow courts to impose requirements equivalent to a community sentence: including curfews, attending certain programmes, and presenting themselves in certain places on certain days-we have just heard the list. We believe that such sentences-they do amount to sentences-should not be imposed unless the person so restricted has obtained a criminal conviction. The fact that the stated purpose of these measures is to prevent violence, or the assistance or encouragement of violence, is not an adequate reason to impose such restrictions.
These restrictions actually amount to a criminal sanction for the purposes of the ECHR. Instead of addressing the fundamental reasons why these young men-they are usually men-get involved with gangs, they are using a big stick by restricting their freedom. I can think of no better way of further alienating such young men from law-abiding society than this sort of restriction. In Clause 33(2), we see that the person to be so restricted must be someone who,
- "the court is satisfied on the balance of probabilities ... has engaged in, or has encouraged or assisted, gang-related violence.".
Leaving aside for the moment the shortcomings of,
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