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we have just had a debate on that-when restricting someone's liberty, the issue is that if someone has actually done these things, any community sentence that it is appropriate for the courts to impose should have been imposed at that point. It may be appropriate to look into anger management courses, picking up the person's educational programme and getting them to learn to read and write so they can get a job, addressing alcohol or drug misuse problems, or anything of that sort. Those things, and not what the Government
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Lord West of Spithead: My Lords, Amendment 134 and the other amendments in this grouping would remove the ability of the court to include positive requirements in an injunction and would limit injunctions to prohibitive measures. Requirements form a key component of these provisions. I have made the point previously, but it is important with regard to this amendment so I will make it again. This tool is not just about protecting communities-although clearly that is a very important part of it-through the effective prevention of serious crime but, exactly as the noble Baroness, Lady Walmsley, says, about engaging individuals to persuade them to change their behaviour.
I know that a number of noble Lords have raised concerns about these requirements. Examples of requirements that could be ordered include notifying the applicant of a change of address, a curfew or participation in particular activities. The types of activities that we envisage respondents being required to participate in include community call-in or mentoring sessions, and these types of activities will give authorities and community leaders the opportunity to engage with gang members, explaining the effects of gang-related violence in their area and offering them opportunities to learn, develop and exit the gang lifestyle.
Removing the ability of the courts to place positive requirements on individuals would be a missed opportunity to engage positively with young people and would therefore limit the effectiveness of these provisions. I therefore must resist Amendment 134 and its related amendments.
Amendment 142A would remove Clause 35(6). I will quickly run through the purpose of this subsection. At present, the court has the power to attach the power of arrest to any provision of an injunction except where specifically excluded. Clause 35(6) makes it explicit that the court may limit the power of arrest to a period that is shorter than the provision to which it is attached. For example, the court may apply a curfew for a period of 12 weeks but attach the power of arrest for only six.
The purpose of this is that in times of heightened gang tension, it will be important for enforcement authorities to deal with breaches swiftly, so the power of arrest is necessary. However, the court might also consider that a curfew will be necessary in the medium-to-long term to give local authorities and police the breathing space needed to ease tensions between rival gangs and to prosecute where offences have been committed. However, because it is expected that the situation will have calmed, if a breach is suspected the court may consider it more appropriate for the applicant to apply for a warrant where it is serious, or to start committal proceedings for contempt of court.
Although I do not expect this subsection to be exercised as a matter of course, it affords the courts a degree of flexibility that will enable them to tailor the power of arrest to where it is necessary or suitable. We do not want to limit the court's flexibility in this regard.
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Amendment 146 seeks to remove Clause 40(1). This clause makes specific provision with regard to interim injunctions that can be granted when an application without notice, made under Clause 38, is adjourned. Again, I know that Members have concerns about these "without notice" injunctions, so it might help if I set out in a little detail why these provisions are necessary to prevent gang-related violence on the ground.
Clause 38, which allows such an application to be made, is necessary as the police can receive intelligence that a retaliation attack may occur, sometimes within 24 hours. By allowing the applicant local authority or police force to obtain an interim injunction without giving notice to the respondent, that retaliation attack can be prevented swiftly and effectively. If authorities had to give notice in these scenarios, the respondent could take evasive action, making the injunction unenforceable.
The purpose of Clause 40 is to put in place some additional safeguards to take into account the fact that the respondent would not be present, or indeed aware, that proceedings were taking place. First, the court must consider it necessary, rather than just and convenient, to grant an injunction. This makes it clear that, if at all possible, the application should be made on notice to the respondent.
The Government consider that it would be unfair for an interim injunction made in these circumstances to include prohibitions or requirements to be in force until further order, or to have the effect of requiring the respondent to participate in particular activities. These conditions should be put in place only once the respondent has been afforded the opportunity to make their case to the court and have therefore been specifically excluded from the without notice interim injunction.
Clauses 38 and 40 are absolutely necessary to allow the use of injunctions as a preventative tool. I would therefore ask the noble Baroness to withdraw her amendment.
Baroness Stern: The Minister talked about the possible length of conditions and suggested that a curfew might be for 12 weeks, but he went on to say that it might be "long term". I would be grateful if he could say what he had in mind when he said that a curfew could be long term.
Lord West of Spithead: The noble Baroness asks a good question, because I thought that 12 weeks was the limit. Perhaps I may get back to her on that point.
Baroness Walmsley: I thank the Minister for his reply. If the measures under Clause 34(3) are as he described, they all sound very reasonable-someone who has an alcohol problem, for example, might have to attend an alcohol management programme. But if these things are to be effective, you will have to have the person's buy-in, and if the person is being forced to do it, you will not get that buy-in. Having been a trustee of a drugs charity, I know from the experts who work there how much more effective drugs treatment is when people buy into it and are not forced to do so by the court, although it has to be accepted that there are some successes when people are forced by the court.
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The Minister mentioned interim injunctions. It occurs to me that these are a replacement for good policing. If a temporary injunction is made, the police will have to be there anyway to make sure that it happens. The police can therefore avoid the retaliatory shooting or whatever it is that they are supposed to be preventing by the interim injunction. Good quality policing and sufficient resources for the police to respond to the sort of intelligence to which the Minister referred are a preferable route to go down, rather than the temporary injunctions that we seek to amend in this group of amendments.
I will read carefully what the Minister has said, consult with my noble friend Lady Miller and perhaps come back to these issues on Report. For the moment, I beg leave to withdraw the amendment.
135: Clause 33, page 27, line 34, leave out subsection (5) and insert-
"( ) In this section "gang" means a group of people who perceive themselves, or are perceived by others, to be a discernable group if-
(a) the group is formed for the purpose of carrying out criminal activity; or
(b) members of the group have engaged in criminal activity together on more than one occasion."
Baroness Miller of Chilthorne Domer: My Lords, the three amendments in this group are variations on a theme, which is to amend the definition of the word "gang" to ensure that it incorporates criminal activity. Amendment 135 would remove Clause 33(5) and insert a new definition of the word "gang". It is heavily based on an amendment originally proposed by Justice in its February 2009 briefing on these clauses. As a result of concerns expressed at earlier stages of this Bill, I would accept that the Government have introduced a definition of gang-related violence as,
- "violence or a threat of violence which occurs in the course of, or is otherwise related to, the activities of a group that ... consists of at least 3 people ... uses a name, emblem or colour or has any other characteristic that enables its members to be identified by others as a group, and ... is associated with a particular area".
The trouble is that a punch-up on a football pitch between the members of two football teams could fall under this definition, as could as a group of three or four boy scouts in their uniforms who were associated with a particular area and-it is unthinkable-got up to some graffiti. That would be criminal damage and it could also be caught by this definition. I am sure that that is not the Government's intention. Nevertheless, all sorts of young people often get up to things that they should not. They may go around in groups of three or four and always be associated with the same place. That is how one has friends or associates, depending on what you call them.
7.15 pm
However, the question is whether the group,
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as my third definition suggests. When discussing these matters, the Minister has often talked about very serious issues and very nasty people. But none of those things are in the Bill. We know what he is talking about, but, because of the way in which the Bill is drafted, this provision could apply to much less serious matters and to people who are far less hard to deal with than those whom he has in mind at the moment. I do not believe that what is being said is reflected in the Bill. If the Minister is talking about groups who habitually go out and shoot at each other then I would point out that they would fall under Amendment 135B. Habitually taking guns without a licence and shooting at other people is certainly criminal activity.
If we are being asked to have these extreme forms of injunction then it would be better to have a definition that covers what the Minister implied when he spoke of the seriousness of the situation. At the moment it does not appear as serious as it should given the nature of the removal of liberty. A much more serious definition is needed in the Bill. I beg to move.
The Lord Speaker: I must inform the Committee that if Amendment 135 is agreed to, I cannot call Amendments 135A and 135B by reason of pre-emption.
Lord Skelmersdale: The noble Baroness has again drawn me to my feet. I entirely agree that the exact definition of a gang should be laid out much more clearly in the Bill. We really cannot agree with the Government that the current definition is sufficient. The three specifications in Clause 33(5) do not address the heart of the matter-namely that gangs are criminal or at the very least anti-social. As it is, the current definition could apply to a local darts team, which is clearly ridiculous.
Although I agree entirely with what the noble Baroness seeks to achieve, I do not think that even her definition goes far enough. Anti-social behaviour should certainly be included as a criterion of gang behaviour in addition to criminal activity. Indeed, when I looked at this matter again this morning, I was tempted to put down my own manuscript amendment. I resisted that temptation, but I can tell the House that my right honourable friend Iain Duncan Smith's Centre for Social Justice is working on a definition along these lines. A gang is a relatively durable, predominantly street-based group of young people who, first, see themselves or are seen by others as a discernible group; secondly, engage in a range of criminal activity or anti-social behaviour; thirdly, identify with or lay claim over territory; and, fourthly, have some form of identifying structural feature. I throw that into the ring for what it is worth. It tightens up just a little the definition that the noble Baroness has proposed.
Baroness Stern: I rise very much to support the amendment and-since the noble Earl, Lord Onslow, is unable to be with us-to bring to the Committee's attention the comments of the Joint Committee on Human Rights. It said:
"'Gang' is not a precise or legal term. We are concerned at its potentially wide application in the future beyond the category of people currently envisaged to be covered and the broad discretion which it gives to those seeking applications and the courts as to how the term is interpreted".
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The committee suggests that there should be guidance which,
- "sets out the boundaries of the term, including those groupings of individuals which the term will not encompass (such as protesters)".
We have considerable experience now of how laws with texts which we have discussed here in this House-where we have decided that we know what those are for-are then used in much wider circumstances and in ways that were not envisaged. We have probably now reached the point where, if we want whatever we are trying to do to be done, rather than something else instead, we ought to have learned our lesson and ensured that our drafting is much tighter.
Lord West of Spithead: My Lords, these amendments would, in their separate and equally problematic ways, require the applicant for a gang injunction to prove that a gang is engaged in criminal activity. Amendment 135 seeks to insert a definition of gang into the legislation. Concerns were expressed during debates in the other place that the provisions originally introduced into the Bill might be used more widely than for the gang members who we were targeting. We listened to those concerns, and amendments were passed on Report in the other place which amended the definition to ensure that the concerns are dealt with.
We now feel that the legislation is targeted at the appropriate groups. The definition includes elements of the definition of gang offered by the Conservative Front-Bencher James Brokenshire during the Commons Committee and the Manchester Multi-Agency Gang Strategy definition of gang included in Tackling Gangs, which the Home Office published in May 2008.
The effect of Amendment 135 would be to require the police or local authority, in applying for an injunction, to show that the person against whom the injunction was sought has committed violence within a group which was formed for the purpose of criminal activity, or which has engaged in criminal activity together. I understand the concerns of the noble Baroness, but the amendment she proposes would render the provisions unworkable. The police or local authority would have to show that the individual is part of a group which commits criminal acts, or which was formed to commit criminal acts.
First, it would be extremely difficult to prove that a group of people got together for the specific purpose of committing criminal acts. A gang will not normally have a written constitution of their aims, or indeed may not have set aims in any sense at all. Also, if the police are aware of a group who have criminal intentions but who have never been able to plan or commit an offence, they would be able to get an injunction against a toothless group of individuals, so the amendments proposed could have the effect of broadening the range of individuals against whom an injunction could be sought. The definition of "gang-related violence" provided in Clause 33(5) requires the applicant to show to the civil standard that violence has occurred, and that this violence was committed within the context of the group. On a practical level, it is easier to prove the actions of a group or individual than the intention of that group, which is what would be required should this amendment be accepted.
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Secondly, if there is sufficient evidence showing that the group has committed criminal acts, a criminal prosecution should be vigorously pursued against the group or the individual so long as that is in the public interest. We firmly believe that our definition is the best way to make these provisions a realistic and functioning tool for the police and local authorities.
Clause 33(5) provides a definition of "gang-related violence". We have no problem with groups of people coming together, but once those groups commit or threaten violence then an injunction can and should be sought. For these reasons, we feel that our definition focuses the applicant on the important issues; namely, the violence being committed by these groups, not simply the groups of and in themselves.
Amendments 135A and 135B seek to have a similar effect to Amendment 135 by different means. Rather than inserting a definition of gang, they amend the existing definition of "gang-related violence". Again, I must resist these amendments for the reasons already given. They would require the applicant to show that the gang was habitually engaged in criminal activity, or was a criminal gang. The same problems that I have already set out exist. Where a criminal prosecution is available, clearly that should be pursued-that is what we would always want to do. I hope that, on the basis of the explanation I have given, the noble Baroness will feel able to withdraw her amendment.
The Lord Bishop of Chester: My Lords, while the Minister is talking about definitions, can he confirm that the term violence means and can only mean physical violence?
Lord West of Spithead: My Lords, the right reverend Prelate raises a question that makes me have to think, but I am sure that we are talking about physical violence. I would have to go away to make it absolutely certain, but I am sure that is what we are concerned with in this case.
Lord Skelmersdale: My Lords, I thought that I was following the Minister's argument quite well, and then he suddenly said that intentions are difficult to prove. I think that I have the exact form. Is the threat of violence not an intention? Surely to goodness, one can prove the threat of violence.
Lord West of Spithead: My Lords, I am not sure that is necessarily an easy thing to prove. When someone has been shot in a particular gang, we may know that one of that gang's members is going back to the area where the other gang is, and that we have a history of people shooting each other. Yet trying to prove that threat of violence would, I believe, be extremely difficult in our courts.
Lord Skelmersdale: It is already in the Bill's definition. That is what worries me.
Lord Mackay of Clashfern: My Lords, I hesitate to intervene, but a threat of violence may be a manifestation of intention. It is more than just an intention, while of course the actual violence is certainly more than intention. I would respectfully suggest that a threat of violence is something more than mere intention to commit violence.
Lord West of Spithead: My Lords, I agree with that.
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Baroness Miller of Chilthorne Domer: How interesting, especially toward the end, where the speed of the interventions suggests that wiser heads than mine also question whether the definition in this Bill is sufficiently tight. The noble Baroness, Lady Stern, reminded us why we have an absolute duty to make sure that it is as tight as possible. I was attracted to the expanded definition from the noble Lord, Lord Skelmersdale. We have something really useful that we can work on between now and Report. The Government are certainly alone in thinking that their definition is adequate at the moment. All around the Committee, I see that the rest of us feel that it is not.
The right reverend Prelate raised a very interesting issue, because violence of a mental sort is what gangs normally do, and intimidation is a huge part of gang culture. We should not forget that important thing but take it into account when we are thinking of definitions. I hope that we will be able to come together and discuss the expanded Iain Duncan Smith solution to this issue-that is, if we have this clause in the Bill at all by the time we have debated its merits more fully. In the mean time, I beg leave to withdraw the amendment.
Amendments 135A and 135B not moved.
House resumed. Committee to begin again not before 8.28 pm.
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