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Session 2006 - 07 Publications on the internet General Committee Debates Serious Crime Bill [Lords] |
Serious Crime Bill [Lords] |
The Committee consisted of the following Members:Emily
Commander, Committee
Clerk
†
attended the Committee
Public Bill CommitteeThursday 28 June 2007(Morning)[John Bercow in the Chair]Serious Crime Bill [Lords]Clause 5Involvement
in serious crime:
supplementary
9
am
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I beg to
move amendment No. 87, in
clause 5, page 5, line 5, leave
out subsection
(2).
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 88, in
clause 5, page 5, line 7, leave
out
‘ignore’.
No.
89, in
clause 5, page 5, line 8, at
beginning insert
‘ignore’.
No.
6, in
clause 5, page 5, line 10, leave
out paragraph (b).
No.
90, in
clause 5, page 5, line 10, leave
out ‘subject to this’ and insert ‘have regard
to’.
No. 94, in
clause 5, page 5, line 12, leave
out subsection
(3).
No. 91, in
clause 5, page 5, line 15, leave
out
‘ignore’.
No.
92, in
clause 5, page 5, line 16, at
beginning insert
‘ignore’.
No.
93, in
clause 5, page 5, line 18, leave
out ‘subject to this’ and insert ‘have regard
to’.
Mr.
Hogg:
Thank you very much, Mr. Bercow. Nine
o’clock is an awfully early hour for me—I am not used to
this. However, I have to get my mind round it. I am trying to remember
what I was seeking to do when I drafted the amendments. I think that I
remember.
The group
has a twofold purpose. The first is to delete subsection (2) with the
object of striking outthe facilitator as somebody who is
caught by the provisions. Secondly and differently, subsection (2)(b)
will direct the court to ignore what lawyers would describe as the mens
rea. For the purposes of Hansard, it is mens rea, not
“mens rear”. That mistake has sometimes occurred. As I
have just been to a puppy show, it is all the more likely to occur, but
that is by the by—[
Laughter.
] It is 9
o’clock, Mr. Bercow, I am so sorry. The purpose is to
direct the court to the ordinary standards of mens rea.
I will deal with the two
proposals, seriously. First, I have very grave doubts about the
question of catching the facilitator as a matter of principle, which I
have spoken of before, because the facilitator is not necessarily
committing a criminal offence known to the law. He or she might commit
such an offence because facilitation may amount to aiding and abetting
and
could be part of a conspiracy. I concede that, as a matter of law, the
facilitator might be a person who is committing a substantive offence
under existing law, but that is not necessarily
so.
I am uneasy about
including the facilitator as somebody who can be caught by the full
ambit ofthe serious crime prevention orders,
especiallywhen the concepts of intentional and wilful acts are
not incorporated as necessary preconditions to the facilitator being
caught, as is now the case, which is why I want to remove the
facilitator from the scope of the order-making powers. That is the
first of the purposes reflected in the group of amendments. If I cannot
win on that, I would like to direct the court to have regard to the
mental state of the facilitator when determining whether it is right to
make the necessary or allowed
orders.
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Vernon Coaker):
The right hon. and learned
Gentleman will know that the Government take particular account of the
McCann judgment. In respect of mens rea, the House of Lords determined
that the proceedings were civil and that the following factors
contributed to this decision. The question of whether a person has
acted antisocially, as set out in section 1(1)(a) of the Crime and
Disorder Act 1998, is an objective inquiry and no mens rea needs to be
proved. Given our belief that the McCann judgment will inform practice
in respect of serious crime prevention orders, is that not an important
point?
Mr.
Hogg:
Forgive me, but I think that that point reinforces
my argument. I am perfectly prepared to accept that that is true in the
case of the McCann judgment, although I have studied it not on the
question of strict liability, but on the question of the standard of
criminal proof. I am perfectly willing to accept that the hon.
Gentleman is right. I do not like cases of strict liability. They are
better than cases of absolute liability, but not
much.
Let us say that
the proof of antisocial behaviour for an ASBO is strict liability.
First, I do not like it. It is a proposition that I do not wish to
extend to serious crime prevention orders, especially as their scope is
much greater than the ordinary ASBO—they are referred to
colloquially as super-ASBOs. The ordinary ASBO is relatively tame in
contrast to the powers contained in clause 6. I do not wish to impose
strict liability. That is exactly what I am arguing against,
notwithstanding the fact that the Lords may have
approved it in McCann. We are the House of Commons.
We have a right to set the law for the courts to interpret, and it is
interpreted in accordance with the corrections we give, subject to the
convention on human rights.
I want to provide that, before
the order can be made, the court must have regard for knowledge,
intention and motive. It must have regard for at least knowledge and
intention—I think motive, too. Otherwise there is strict
liability. The effect of my amendment would be to strike out the part
of the clause that directs the court to ignore those considerations,
and incorporate them, if necessary, as preconditions. I might not
persuade the Committee, but that is another matter. I believe that that
is what we ought to do and if we do not do it here, I hope that it will
be done in another place.
Nick
Herbert (Arundel and South Downs) (Con): I agree with my
right hon. and learned Friend that it is very early in the morning to
be considering such legalistic matters, particularly when some of us do
not have his great legal expertise. Nevertheless, I think that he has
drawn attention to an important matter relating to the Bill.
I would particularly like to
focus on clause 5(3) and its relationship with the amendment that my
right hon. and learned Friend proposed to subsection (2). As we know, a
person does not have to have committed or even been convicted of a
serious offence to be eligible for a serious crime prevention order;
they can receive an order if their conduct was likely to facilitate
such an offence. In an earlier discussion on the measure, my right hon.
and learned Friend expressed his concerns about that concept of
facilitation and the extent to which it broadens the application of the
measure. However, an additional concern is that the definition of
conduct under clause 39, which is the interpretation
clause of part 1, can “include omission and
statements.” Clause 5(3) states that a court must ignore the
person’s intentions. In other words, he does not actually have
to intend to facilitate a serious offence or even believethat
his actions would do so. Effectively, therefore, clause 5(3) creates an
offence of strict liability.
A defence is provided in the
sense that clause 5(3)(a) reverses the burden of proof. We must
consider the extent to which it is acceptable that someone who has not
committed a serious offence, but whose conduct is said merely to have
facilitated the
offence—
Kali
Mountford (Colne Valley) (Lab): My problem with the debate
is that the whole onus is in the wrong place. The orders are intended
to prevent crime, so if someone persists in behaviour or an association
that would continue to allow a crime to develop or happen, it seems odd
not to want to prevent
it.
Nick
Herbert:
The Minister says that that is a good point, but
I am not sure if the hon. Lady understands the scope of those measures
and the fact that criminal sanctions can be applied to conduct that
could be inadvertent and which need not relate to a criminal act at
all. These are all the discussions that we have
had.
Mr.
Jeremy Browne (Taunton) (LD): I might suspect that the
hon. Member for Colne Valley may facilitate an offence, although she
might not be able to prove to me that she does not intend to facilitate
it because she might not even realise that she intends to do so. On
that basis, and to prevent her from doing so, does thehon.
Gentleman think that it would be reasonable for me to restrict her
movement and access to premises,her working arrangements, her
financial, propertyor business dealings, or any of the other
matters contained within the
Bill?
Nick
Herbert:
The hon. Gentleman puts the point very well.
Where does the principle of legal certainly lie with this? How is a
defendant to know, in advance, whether his activities will be judged
reasonable in cases where no crime is committed and where the
activities
that could be caught under the Bill are not something that he or she has
done, but something they have failed to do or something they have
said?
Kali
Mountford:
Should the courts point that outto me
and give me an order telling me I could not associate with people I had
previously associated with, or could not behave in a way that I had
previously behaved, because it would cause, or be likely to cause, a
crime, I would want to desist immediately. I would not want to be
associated with such situations in the
future.
Nick
Herbert:
We are discussing the possibility that people who
are innocent find themselves before the High Court. Their conduct may
not necessarily be judged to the criminal standard—we had a
debate that noted that there could be a sliding scale and that the test
for those people could be something below the criminal standard. If
that were not the case, no doubt the Government would have insisted
that the criminal standard be put in the
Bill.
Therefore, the
person involved could be somebody who was merely associated with an
issue in some loose way or someone who had failed to do
something—not actually done something, but failed to do
something. If that person were required by the courts, the onus of
proof would be put on them to show that their conduct was reasonable.
If they were then unable to show that their conduct was reasonable, an
order would be placed upon them, the seriousness of which we will come
to on the next clause when we discuss the onerous conditions that could
be placed on that person. I, frankly, am surprised that Labour Members
are not more concerned about the civil liberties implications of the
orders.
Margaret
Moran (Luton, South) (Lab): I give a specific example from
a visit to the Child Exploitation and Online Protection Centre about a
social networking site that facilitates images and abuse of children,
which has been warned by CEOP and the Internet Watch Foundation that
this is happening but fails to act. Will the hon. Gentleman concede
that that site should be caught and will now be caught under these
provisions, or is he saying, laissez-faire, that we should not be
protecting our children in that
way?
Nick
Herbert:
That is a scandalous argument.The hon.
Lady has stood up and asked whether I understand that, unless I support
the provisions that she does, I am apparently licensing child
pornography. It is
scandalous.
Nick
Herbert:
No, I will not give way. I will answer what the
hon. Lady has suggested. First, if a social networking site is
displaying such images, on my understanding, it is committing criminal
offences and they should be prosecuted in the normal
way.
Mr.
Browne:
I am following the argument closely. As I
understand it, the logical extension of contribution from the hon.
Member for Luton, South is that the scope of the Bill should include
all adult males unless
they can prove that they do not have a tendency toward paedophilia.
Otherwise, is not she deliberately soft pedalling on exactly the sort
of offence she wants to be
considered?
Nick
Herbert:
The example the hon. Lady has cited seems to me
to be one in which prosecution is possible. I would be interested to
know whether the Minister thinks it a good example of a case in which a
serious crime prevention order might be
applied.
Nick
Herbert:
Hold on. The hon. Lady intervened on me but is
not giving me the opportunity to reply to her points. Once I have done
so, if she would like to intervene again, I will happily give way. That
is the first problem with the premise of the example that she
gave—it could be prosecuted. The second problem is that she
suggested that in this case the organisation concerned would have been
warned.
9.15
am
On the bringing
of serious crime prevention orders, there is no requirement that people
should have been warned in advance. I repeat that this conduct, which
could fall within the provision of the making of a serious crime
prevention order, could relate to something that they have failed to
do. The Bill does not say that they have to have been warned by the
authorities and so on. There are no safeguards built in, other than
that the defendant, or the person who is potentially going to receive
this order, has to showthat their conduct is reasonable. The
ability of that individual to show whether their
conduct was reasonable will determine whether an order will be made.
Frankly, that puts a very onerous burden on people who may be far
removed from the commissioning of a serious
crime.
Margaret
Moran:
The hon. Gentleman seems to assume that there is
some law that requires people with websites, for example, or internet
service providers or social networking sites, to take down the
material. I am afraid that he is sadly, lamentably, wrong; there is no
such legislation. It is precisely for that reason that we need the
measures in the Bill to ensure that those operators behave reasonably.
To be honest, he ought to know better than to make assertions like
that, when he is not on safe
ground.
Nick
Herbert:
It was the hon. Lady, in my view, who was making
a scandalous assertion, as she was implying that our opposition to the
serious crime prevention orders was, in some way, condoning
pornography, and the record will show that that was the implication
that she made.
I do
not know whether existing legislation would not
prevent people who operate such websites from
displaying images of child pornography. I would be surprised if that
were the case, but if it is, my suggestion would be that, given the
many Home Office Bills that have been brought before the House in this
session or will be in the future, one Bill could address that specific
problem and
make it a criminal offence. I would be most surprised if it were not a
criminal offence. It should be specifically outlawed so that we could
prosecute the people concerned.
After all, we know who the
owners of the internet sites are. The idea that, instead, we have to
use some kind of quasi-criminal procedure, draws attention precisely to
the problem and the danger that the orders are going to be used
inappropriately as potential alternatives to prosecution, rather than
actually either prosecuting existing crimes or, if necessary, creating
criminal offences to prevent harm. The hon. Lady has given an example
that is helpful to us in expressing our concerns about the way the
serious crime prevention orders may
operate.
Mr.
Coaker:
With respect to the hon. Gentleman, I think that
he is finding this particular aspect difficult. Let me give him another
example, since my hon. Friend the Member for Luton, South has already
provided one. I used the example previously of someone who owns a
series of lodging houses, or hotels, or bed and breakfasts, which are
being used for the purposes of trafficking women, for example. The
situation is found out by law enforcement officers. They go to tell the
hotel owner, who might live 200 miles away, and he says,
“Nothing to do with me. I am a hotel owner, all I am doing is
trying to make some money from my hotels.” What would the hon.
Member for Arundel and South Downs say with regard to that person?
Would that not be an appropriate person for a serious crime prevention
order?
Nick
Herbert:
Does the Minister not think that that person
might be committing a crime? If he thinks that they are not engaged
with the commissioning of those offences of trafficking in some
associated manner, I would say that it was fairly clear that they were,
that they should be investigated, and that the case should be brought
before the courts. I do not see what the problem would be in pursuing
such a
case.
Mr.
Hogg:
Is not this the answer to the question: if the
person who was allowing the premises to be used had no knowledge of the
use to which the premises were being put, they should not be caught by
the order? If, on the other hand, they did have knowledge of what their
premises were being used for, they should be caught by the order. That
is a good argument for including the words “knowingly”
and “intentionally” in the
Bill.
Nick
Herbert:
I agree with my right hon. and learned Friend. He
has drawn attention to the effect of the provisions, which is to create
strict liability in the absence of mens rea. I return to my original
response to the Minister. In the example he gave, just as in the
example given by the hon. Member for Luton, South, it would be possible
to prove a criminal association if that person was facilitating
trafficking. The Minister cannot deny that, and it would be infinitely
preferable for that person to be brought before the court, punished and
dealt with in the proper manner.
If that process were not
possible then the suggestion of my right hon. and learned Friend should
still apply. If Government Members are seriously saying that an
order should be placed on an individual even if they
were unaware of how their premises were being used, that would be an
abuse of the operation of the serious crime prevention order, which is
exactly what the concern is.
Mr.
Coaker:
The whole purpose of serious crime prevention
orders is to prevent crime happening in the future. If somebody is
facilitating crime and refuses to co-operate with law enforcement when
it is brought to their attention that their premises are being used for
trafficking—even if that is 100 miles away in lodging
houses—and that person shrugs their shoulders, it may be
appropriate for the law enforcement to go to the applicant authority to
take that person to the High Court and make them the subject of a
serious crime prevention order, in order to stop that
criminality.
Nick
Herbert:
In that particular case, we should look at the
ability of the criminal law to deal with people who are allowing their
premises to be used for the purposes of trafficking, and what
association they have with the commissioning of a criminal offence. It
is possible that the existing criminal law could deal with that, but,
if there is a lacuna, and it appears that the criminal law is
permitting people to knowingly, or even recklessly, use their premises
without regard to the fact that they are being used for trafficking,
why has the Minister not introduced measures to deal with that? We
would, of course, support such measures because we have been at the
forefront of arguing for tighter measures to deal with human
trafficking.
Instead,
he wants to introduce this catch-all, sweeping provision, which would
allow onerous restrictions to be placed on people who may be only
loosely, if at all, associated with serious criminals. They may find
themselves unable to show, because the burden of proof is put on them,
that things that they have failed to do were not reasonable. That is
not the right approach for these kinds of serious offences, whether of
child pornography or human trafficking. If the hon. Members opposite
wish to produce other examples of conduct that concern them, I would
bet that in every case we could either say that it should be
prosecuted, or, if there is a lacuna, that this House should look at
closing the
legislation.
This
morning’s debate has been helpful in getting to a further
understanding of exactly how the orders will be used as an alternative
to prosecution. That is one of the principle objections to them. The
Minister has not taken sufficiently seriously the fact that an onerous
burden will be placed on people who have not committed an offence, who
are only facilitators and do not even necessarily know that the serious
crime has been taking place, on the basis that they have failed to do
something. Our objection is that the measure goes too far, given the
severity of the conditions that can be placed on such people. For that
reason, I support my right hon. and learned Friend’s
amendment.
Mr.
Browne:
I am grateful to you, Mr. Bercow, for
calling me to speak in this extremely important part of our
deliberations. I say that it is extremely important because I fear that
many—perhaps not all, we might test that with a
vote—Government Members simply have not stopped to think through
properly the civil liberties implications of the
legislation.
Mr.
Coaker:
I take the point about civil liberties, but we
should also consider the civil liberties of the people who experience
harm through the actions of some of the people to whom we want the
orders to be given.
Mr.
Browne:
I understand completely the Minister’s
point. In his earlier intervention on the Conservative spokesman, the
hon. Member for Arundel and South Downs, he said that the purpose of
this part of the legislation was to prevent crime that might happen in
the future. Hon. Members in this room might or might not do all kinds
of things in the future. I intervened earlier to comment on the
previous intervention ofthe hon. Member for Luton, South. She
and others appeared to think that my point was entirely spurious, but
it was nothing of the sort. If the Government really believe that it is
the role of the state to restrict people’s freedom on the basis
that they might do something wrong in the future, why not take that
belief to its logical conclusion? Why are they exposing the population
to the risk of all kinds of crimes that are not covered in the
legislation?
Yesterday, I saw the hon.
Member for Colne Valley associating with the newest member of the
Labour party during Prime Minister’s questions. She might have
been completely unwitting about whether he has committed criminal
offences. Under the Bill, having associated with that person, the
burden of proof would be on
her.
The
Chairman:
Order. I do not think that we will have any
further dilations on the subject of the hon. Member for Grantham and
Stamford (Mr. Davies), which manifestly falls outwith the
terms of the consideration of the latest set of
amendments.
Nick
Herbert:
Before the hon. Member for Taunton moves on, I
refer him to the Minister’s intervention. Does he agree that
that defence of the measures, which the Minister has made before and
which Ministers frequently make in relation to this kind of criminal
legislation, such as control orders, 28 day detention and so on, is so
broad that it could license any extension of the criminal law? To say,
“When considering civil liberties, we must consider the civil
liberties of victims”, is to make a sweeping argument that does
not address the proportionality of the measures, but that seeks to
justify the measures simply on the basis that victims are created and
we ought to think about
them.
Mr.
Browne:
I take the hon. Gentleman’s point. I happen
not to believe that we should imprison everybody whom we might suspect
of having the potential to commit a crime at some point in the future.
It would be extremely expensive, but I suspect that the effect of doing
so would be to reduce crime in the future. Of course there is a trade
off. There has to be some sense that the individual citizen is innocent
until proven guilty, otherwise the state can make all kinds of sweeping
assertions about a person’s intentions at some point in the
future, and that person will be in no position to prove whether they
intend to do as the state asserts.
The Minister
made the point about the boarding house. If an owner or manager
facilitates a criminal act, he should be prosecuted for that. For all I
know, the Minister owns a boarding house in another part of the country
and might be completely unwitting about what is going on in there. If I
were to restrict his liberties for something that he knows nothing
about, but might seek to use in a criminal way in the future, that
would be an extremely weak protection of his liberties.
The point seems so obvious to
me that I do not understand why it is so complicated for everybody to
grasp. I am not a lawyer, but the convention is that if an individual
commits a criminal offence, that person goes to court and is
prosecuted. The jury hears the evidence and makes a decision about the
guilt of that person. If they are found guilty beyond all reasonable
doubt, they go to prison or face some other sanction. I never knew that
that process could be turned on its head, and that an assumption would
be made that a person will commit a crime in future unless they can
prove that they do not intend to do so. That is extremely difficult to
prove.
9.30
am
What is more, a
court does not have to be satisfied beyond all reasonable doubt that a
person may in the future know somebody who may intend to commit a
crime; it need only be satisfied that that is a possibility. I would be
happy to take interventions from members of the Committee who think
that that is a reasonable basis on which to proceed, but they would
first have to guarantee that at no point in the future will they know
anybody who may be in a position to commit a crime. To be associated
with such a person would mean that we may end up voting to restrict our
own liberties, as well as every other citizen, should I press the
matter to a
Division.
Mr.
Coaker:
May I ask the hon. Gentleman the question I asked
the right hon. and learned Member for Sleaford and North Hykeham? If
what he has said is correct, what would he say to the House of Lords on
civil orders? The Government expect ASBOs to be used as a reference
point for serious crime prevention orders, and we think the same on the
issue as the House of Lords. The House of Lords judgment in McCann said
that the question of whether a person had acted antisocially was an
objective inquiry and no mens rea need be proved with reference to
section 1(1)(a) of the Crime and Disorder Act 1998. To make it clear,
is the hon. Gentleman saying that the Lords’ judgment is
wrong?
Mr.
Browne:
The point is that the difficulty with gangster
ASBOs, as Government spin doctors call them, is that the range of
sanctions, which we will come to discuss, is equivalent to the ASBOs
that he mentioned. I do not think that it
is.
Mr.
Hogg:
The answer to Minister’s question is
that the House of Lords was interpreting the law, not expressing a view
as to whether it should be a strict liability. It was merely saying
that, as a result of the language of the legislation, there is strict
liability.
Mr.
Browne:
I was hoping to finish my speech a while ago, but
I am grateful for that insight. The Minister will have taken that point
on board. The available sanctions are different in those cases. We will
talk about the sanctions that are likely to be put in place when we
discuss clause 6. I shall not make my speech on the sanctions now, but
they are extremely serious. In terms of curtailing liberties, they stop
just short of imprisonment. If the state intends to take such action,
it must do so on more substantial grounds than the ones that we are
discussing.
Mr.
Coaker:
I apologise to the hon. Gentleman for intervening
again and I am grateful to him for giving way, but he said that the
available sanctions stop short of imprisonment. How can he say that a
High Court, which is a public authority subject to the Human Rights Act
1998, would actually impose any such sanctions? Simply put, the court
would not be able to do so because it would have to have regard to
human rights legislation. This is an emotive subject for the hon.
Gentleman, but what he asserted is not the case—a court would
not take such
action.
Mr.
Browne:
Perhaps the Minister might prefer me to discuss
these comments in greater detail when we come to clause 6. Briefly,
clause 6(3)(a) mentions a restriction
on
“an
individual’s financial, property or business dealings or
holdings”.
The
Chairman:
Order. The hon. Gentleman cannot refer to a
subsequent clause and he might be well advised to follow his own
initial counsel in terms of the scope of his present
remarks.
Mr.
Hogg:
Is not the answer to the Minister that the
control orders, which the Government have introduced and which the
courts sometimes approve, have the effect of confining people in their
own houses, andthat is a form of imprisonment notwithstanding
the European convention on human rights?
Mr.
Browne:
That is another observation about clause 6 with
which I agree, and look forward to debating in due
course.
Mr.
Blunt:
I think that we have had a particularly
interesting debate. I want to congratulate Labour Members for doubling
the number of Back Benchers who have spoken on the Bill. There were no
set-piece speeches on Second Reading, although there were some
interventions from the Parliamentary Secretary, Cabinet Office, the
hon. Member for Wolverhampton, South-East (Mr. McFadden).
Selection, therefore, must have been difficult for the
Government.
However,
there are important issues here about the context in which the
amendments are being put forward; what we are doing to our assumptions
about society; and co-operation by the public with the authorities that
are sitting there with the powers that
are being sought under this legislation. I hope that Committee members
will reflect on the powers that we are seeking to take and on the
different assumptions that exist on both sides of the Committee. Will
Labour Members reflect on what is happening with the assumptions that
underlie this legislation?
Earlier, the Minister gave us
an example of a hotel or property owner whose premises were being used
for trafficking. If the owner had brought the matter to the attention
of the police, one would expect that most citizens would wish to
co-operate with the police to ensure that that illegal activity did not
continue on their premises.
There must be a limited number
of occasions on which people turn round to the police and say,
“Up yours, inspector. You can get on with it and doit
yourself.” If there is no co-operation in such circumstances,
that would leave the police to draw all sorts of conclusions about the
nature of that individual and the amount of investigation that should
then take place.
However, the
Government’s answer to the perceived problem is to take a whole
reef more powers to implement these orders so that the High Court can
levy an order on those individuals who do not see the police as their
people and refuse to co-operate. They have done it with terrorism
prevention orders, control orders and, at the bottom end of the scale,
ASBOs. We are now filling in the gap in the middle with serious crime
prevention orders. There is a profound problem here about what will
happen to the nature of the relationship between the state, the police
and its agents and the rest of
society.
The rest of
society sees the state taking all those powers to
itself—
The
Chairman:
Order. These observations are very
wide of the set of amendments that are currently
before the Committee. I know that the hon. Gentleman, who is an
experienced parliamentarian, will now wish to refocus his remarks on
the set of amendments with which we are
dealing.
Mr.
Blunt:
Indeed, Mr. Bercow. However, I
only intend to produce these arguments once in our proceedings. They
are in the context of these amendments in which my right hon. and
learned Friend the Member for Sleaford and North Hykeham is seeking to
remove from the Bill the wording thatsays the responsibility
then falls on the respondentto explain his circumstances.
Therefore, the general arguments apply to that specific wording. I hope
that you will bear with me, Mr. Bercow. My general
principles apply here and I think that the arguments should be made
once during the course of the proceedings.
It is the duties that are
placed on the respondent that my right hon. and learned Friend is
addressing. The principal issue at stake is that the more powers are
taken by the state, the less the individual citizen will feel the need
and responsibility to co-operate with agents of the state. We have seen
that happen in all sorts of areas. We perceive a problem; then we pass
legislation and the state takes powers to deal with it. People then say
that such matters are no longer their responsibility but ours,
and that if we want to do something about it, we have to go to the court
for an order. The amendments tabled by my right hon. and learned Friend
would improve the position, but I accept that my arguments apply more
widely to all the powers. I hope that members of the Committee will
reflect on what such orders and powers will do to the nature of our
society.
Mr.
Coaker:
Good morning, Mr. Bercow. As this is my
first formal contribution to the Committee this morning, I wish to
welcome you to your second sitting of the Committee. I also welcome all
members of the Committee to our proceedings, the start of which seems a
long time ago, although we are now a bit more awake than we were at 9
o’clock this
morning.
We are having
an important discussion. In response to what the hon. Member for
Taunton said, we are all concerned about the civil liberties of
citizens. We were arguing—and well, I thought—that, of
course, all law impacts on the civil liberties of others. We must
therefore ensure that a correct balance is struck. We believe that,
through the use of the civil and criminal courts, we can reduce the
level of harm in society. By impacting on serious criminals by the use
of prevention orders, we shall reduce the level of harm. It may impact
on the liberty of the particular individual who is made the subject of
the serious crime prevention order, but for the purposes of preventing
harm.
If we prevent
harm in the future, the civil liberties of others in our community will
be enhanced. I cannot believe that the hon. Gentleman or others do not
learn from their surgeries that people are aware of the need for a
balance in civil liberties, because I and my hon. Friends experience it
all the time. That is of the essence. There may be differences between
us. I respect people’s views, but we believe that a
proportionate response that impacts on the serious criminal will
prevent harm in the future. If the response was not reasonable and
proportionate, the High Court would not allow the serious crime
prevention order to be
made.
Mr.
Hogg:
The hon. Gentleman frequently uses the phrase
“reasonable and proportionate”. That language does not
appear in the Bill, although it did in my amendments. If he were so
keen for those criteria to be adopted, why on earth did he not accept
my
amendments?
Mr.
Coaker:
The right hon. and learned Gentleman has much
experience of, I presume, the civil courts as well as the criminal
courts. I have limited experience, but I do know—as do all
members of the Committee—that the High Court is bound as a
public authority to comply with the terms of the Human Rights Act. It
cannot act in a way that is not reasonable. It cannot act in a way that
is not proportionate. That is implicit in all its actions. High Court
judges throughout the country know that and will apply the law
appropriately.
Mr.
Browne:
On a genuine point of
clarification—if a future Government were to repeal the
Human Rights Act, would the Minister still feel secure in recommending
the proposals that we are discussing?
9.45
am
Mr.
Coaker:
If we project something like that into the future,
who can say what will be appropriate? In answer to the right hon. and
learned Gentleman, who raised a fair point, we all want the courts to
impose the orders—to implement the legislation—reasonably
and proportionately. The High Court will have to do so because it has
to comply with the Human Rights Act; being reasonable and proportionate
will therefore be the court’s
byword.
Kali
Mountford:
My hon. Friend is right; my constituents
frequently say that they want to see a balance in civil liberties.
However, they also say that the balance is currently wrong. They feel
that they are not sufficiently protected from criminal activity. I want
to see that protection put in place through the
orders.
Mr.
Coaker:
I think that my hon. Friend is right.
Notwithstanding the sincerity of the views being expressed in our
debates, people are continually asking whether we have the balance
right. Through the Bill, we are trying to ensure a better balance, and
we believe that the amendments would make it more difficult. I agree
entirely with my hon. Friend.
A number of hon. Members have
made the point, especially in our debate on amendment No. 87, that we
need to keep in mind the civil liberties of the victims as well as
those of the perpetrator. We need to understand
whether the attack on those liberties—their
diminution—is necessary.
It is important to say that
most of the orders that will come about as a consequence of this
legislation will be the result of criminal conviction; nor do we
believe that a large number of orders will be made through
facilitation. It was estimated in the other place that about 30 such
orders would be made per year, but we do not know what proportion of
them would be made through facilitation other than in criminal
convictions. If I have further information, I will let the Committee
know. However, we expect the vast majority of orders to be associated
with criminal convictions. That should offer some
reassurance.
It will
be difficult to obtain an order on the basis of facilitation, because
it will have to be proved virtually to the criminal standard, but we
believe it to be an important provision. The fact that the vast
majority of orders will be based on convictions proves their worth. We
are trying to prevent future crime.
The McCann judgment is
extremely important. I am not a lawyer, and the right hon. and learned
Member for Sleaford and North Hykeham may correct me if I am wrong, but
I—and, I am sure, all hon. Members—frequently hear
barristers and solicitors citing House of Lords judgments in support of
their findings. The House of Lords is the most senior court in the
land. Its judgments and what is said about the use or the
interpretation of the law are important.
Mr.
Hogg:
I make a point that I made earlier tothe
hon. Member for Taunton. In the McCann case, the House of Lords was not
expressing a view as to the merits of strict liability but merely
saying that the ASBOs were an example of strict liability. It was
interpreting the language of the legislation, saying that it created a
strict liability, not expressing a view onits
merits.
Mr.
Coaker:
For the benefit of the Committee, I repeat what
the right hon. and learned Gentleman said: the House of Lords was
interpreting the law. The point is that it concluded that the orders
are civil; and one factor for believing that they are civil was the
absence of a mens rea element. I believe that that conclusion is
applicable to the serious crime prevention
order.
Nick
Herbert:
I am not a lawyer either; no doubt, therefore,
the Minister and I will struggle together.
I would like to ask whether
there is a difference between the drafting of serious crime prevention
orders and the drafting of ASBOs; the Minister referred to the McCann
judgment, as it applies to ASBOs. I ask that question because section
1(1)(a) of the Crime and Disorder Act 1998 says of ASBOs that a person
must have acted “in an anti-social manner”. However, the
notion of serious crime prevention orders
rests—
The
Chairman:
Order. First of all, with the greatest of
respect to the hon. Gentleman—I am sorry to have to interrupt
him—his intervention is becoming rather long. I will allow him
to complete it very briefly. Secondly, may I just make the point to the
Committee that we are now straying into what is effectively a clause
stand part debate, which will have implications for my judgment when we
reach the question of whether the clause should stand
part?
Nick
Herbert:
Thank you, Mr. Bercow. I was seeking
to ask the Minister a question directly about a defence that he was
raising as to why these amendments were not necessary to this clause; I
shall come to that question now. Is it not the case that, whereas ASBOs
are made if a person has acted “in an antisocial manner”,
serious crime prevention orders can be made if somebody is involved in
serious crime or facilitates it? And does that not mean that the
serious crime prevention orders are broader in their nature than ASBOs,
which should affect our decision as to the necessary mens
rea?
Mr.
Coaker:
The hon. Gentleman will know that there are two
tests in clause 1 that outline what must be demonstrated in the High
Court for somebody to be made the subject of a serious crime prevention
order. There are two limbs to clause 1(1): paragraph (a), the
involvement in serious crime; and paragraph (b), whether the order will
prevent future crime. I was referring to the McCann judgment, which
said that ASBOs were civil orders, confirming that fact and the fact
that one of the reasons that they are civil orders is that no mens rea
needs to be proved. We are saying that, with respect to serious crime
prevention orders, we think that the McCann judgment will be taken into
account.
Nick
Herbert:
I should be grateful if the Minister would answer
my question. In rejecting these amendments, it seems that he is relying
on the McCann
judgment as it applies to ASBOs. I have asked him a simple question; are
ASBOs the same in their nature as serious crime prevention orders, or
not?
Mr.
Coaker:
As the hon. Gentleman knows, antisocial behaviour
need not necessarily amount to criminal behaviour; the test in a
serious crime prevention order is similarly structured, but aimed at
different problems. ASBOs are aimed at antisocial behaviour; the other
is aimed at serious criminals, to prevent serious crime. The McCann
judgment is applicable to serious crime prevention orders, as it is
applicable to ASBOs.
As I said, the vast majority of
serious crime prevention orders will be made upon criminal conviction,
precisely because it will be difficult to prove facilitation. I am
afraid that I must ask the Committee to resist these amendments. They
go to the mental state of the potential subject of an order at the time
that he facilitated or acted in a way that was likely to facilitate
serious crime.
We
have already discussed the issues related tothis matter during
my introduction and the other comments that the hon. Member for Taunton
has made, so I do not propose to repeat all the points that I have
made. This area was also debated at some length in another place. That
debate was informed by the briefing meetings that Baroness Scotland
organised for colleagues with Sir Stephen Lander, the head of the
Serious Organised Crime Agency.
Would someone please intervene
while I find the right speaking notes? Thank you very much; that was a
good intervention. [
Laughter
.
] I am more
than willing to arrange similar meetings with Sir Stephen for
colleagues from this House.
At present, no mental element
is included in the court’s consideration of whether a person has
facilitated a serious crime, or has acted in a way that is likely to
facilitate a serious crime. The overarching context for this
consideration is set out in the test in clause 1 of the Bill. In
deciding whether to impose an order, including deciding whether the
proposed subject has been involved in serious crime, the courts will
act only in a way that is reasonable and proportionate.
Clause 1(3) also expressly sets
out the terms of the order that must be made for the purpose of
preventing future involvement in serious crime. It is possible that
there will be instances where the court considers that it is reasonable
and proportionate to put in place an order that will prevent the harm
caused by serious crime, but where it is virtually impossible to prove
a particular mental state.
The purpose of a serious crime
prevention orderis to prevent the harm caused by a
person’s future actions; they are not intended to punish a
person’s past actions. If a person’s past actions cause
harm, we should equip law enforcement to put a stop to those actions,
notwithstanding that the person may not have intended the harm their
actions cause. The example of the lodging-house owner would be
especially true in that respect.
If amendment No. 6 were to be
made, depending on the circumstances, the lodging-house owner might
successfully argue that he did not intend his houses to be used for
people trafficking or did not know that they
were being used in that way and so he should not be given an order.
Amendments Nos. 88 to 93 would have a similar effect but they would
ensure that the court must have regard to a person’s intentions
or other aspects of his mental
state.
Nick
Herbert:
The Minister sought to rely earlieron
the courts applying a reasonableness test in their attitude to the
making of serious crime prevention orders. Is he seriously saying in
the example he has just given that he believes that a court would allow
such a person to get away with that
defence?
Mr.
Coaker:
I am just saying that it would be a matter for the
courts to decide what was reasonable.We have been through the
argument on facilitation a number of times; when somebody is told by
law enforcement that their actions are causing harm and that person
then refuses, and almost with a shrug of their shoulders, says,
“Well, it’s nothing to do with me. My intention
isn’t that my house should be used for that. I am just trying to
make money,” it is perfectly reasonable in those circumstances
for law enforcement to go to the applicant authority and for an order
to be placed before the court. It is then a matter for the
respondent—the person on whom the applicant authority is trying
to impose an order—to prove to the court that their actions were
reasonable, and if they were, they will not become the subject of a
serious crime prevention
order.
We should also
recognise that when the respondentis in court trying to prove
his reasonableness, the standard of proof in that particular instance
would be the balance of probability. In that situation, what a
lodging-house owner whose houses or hotels are being used for
trafficking would have to demonstrate is that in response to a request
from law enforcement, not doing anything about it, or simply shrugging
his shoulders, was reasonable. If he can show that to the satisfaction
of the High Court, he will not become the subject of a serious crime
prevention order. That is perfectly reasonable; it reflects the points
made by my hon.
Friends.
The vast
majority of people in this country would believe that if someone is
told or asked by law enforcement to understand what is happening in
their hotels, it is perfectly reasonable to expect them to do something
about it. If they do nothing about it, in order to prevent harm in the
future, the serious crime prevention order ought to be available to the
applicant
authorities.
10
am
Nick
Herbert:
I understand the Minister’s argument and
his concern about this type of behaviour but—assuming he agrees
that prosecution for an offence would be preferable to making a serious
crime prevention order, in all cases but certainly in this
case—why would serial failure to comply with a request from the
law enforcement agencies not be good evidence of complicity in a
crime?
Mr.
Coaker:
I am not a lawyer, but the right hon. and learned
Member for Sleaford and North Hykeham might say that proven intent in a
situation such as the
one I have just outlined would be extremely
difficult. What the Government are saying is a point of difference
between us. We have said numerous times that we do not see any of this
as an alternative to prosecution where possible. We have also said we
believe that, in the vast majority of cases, serious crime prevention
orders will follow a criminal prosecution. What we are talking about
here is an instance—a possibility—where somebody is
facilitating serious crime, has been told by law enforcement of the
facts about their lodging-houses or the other examples that my hon.
Friends gave, and has simply shrugged their shoulders and said,
“I have no knowledge of that.” My intention is not that
the orders are used for that purpose. However, if somebody simply
shrugs their shoulders, we think it perfectly reasonable that serious
crime prevention orders are available; law enforcement can go to the
applicant authorities, which then seek a serious crime prevention order
in the High
Court.
The
Chairman:
Order. For the benefit of the Minister and that
of all the Committee, I understand the intensity of feeling on the
particular point—I emphasise the singular—that has been
preoccupying the Committee for some minutes now. However, as Chair, I
have to judge whether the matters are new or simply a repetition of
what has already been said. I now feel that a particular point has been
dwelt upon intensely, at considerable length, and does not require to
be repeated further. If the Minister feels that he now wishes to move
on to any additional points that he needs to make in response to the
amendments tabled by the right hon. and learned Member for Sleaford and
North Hykeham, the Committee will await that with eager
anticipation.
Mr.
Coaker:
Brilliant. Your brilliant chairmanship,
Mr. Bercow, never ceases to astonish me. With that gentle
admonishment, let me conclude. Amendments Nos. 87 and 94 delete
subsections (2) and (3) and appear to be consequential on the removal
of the concept of facilitation from the Bill. As already discussed, we
believe that basing an order on the facilitation of serious crime is an
important and valuable feature of the Bill, because it will allow us to
tackle those whose actions provide the infrastructure and support for
serious criminal networks. For those reasons, I would ask the Committee
to reject the amendments, if they are not
withdrawn.
Mr.
Hogg:
Heeding what you say, Mr. Bercow, I would
none the less like to respond briefly. There is one general point
relating to McCann and three specific points that I would like to
address.
On the narrow
point of strict liability, I repeat a basic fact: the McCann judgment
did not involve the House of Lords in saying what should be. In the
judgment, the House of Lords merely said that, because Parliament had
framed the legislation in a particular way, it was a case of strict
liability. The House of Lords was not expressing quality—a view
as to whether the merits lay in favour of strict liability—but
was merely saying that that is what the legislation involved. That is
no more than what we are saying. The Bill is a Bill that involves
strict liability. We know that.
The Minister cannot pray in aid the House of Lords
to say that it should be strict liability—the House of Lords was
not addressing that question. I will move
on.
The Minister
basically advanced three arguments: first, the protection of the
public; secondly, in any event, somebody who continues an activity
knowingly should be caught by the order-making powers; and, lastly, in
any event, the convention on human rights as incorporated into the
Human Rights Act 1998 would be a proper defence. Those are the three
arguments, and I would like to respond
briefly.
As for the
protection of the public, I am an old-fashioned libertarian and do not
pretend to be anything else. I subscribe to the view that it is
betterby far that the guilty should go free than that the
innocent should be caught. That is a proposition I have subscribed to
all my life when practising at the Bar. Itis also the
proposition which underpins the British legal system. It is why cases
have to be proved beyond their reasonable doubt and not on the balance
of probabilities and it is true that if one allows people who probably
are guilty to go free—which is what I want to see—then in
some cases they will go and commit further offences down the track. To
that extent the public are put at risk by our criminal standard of
proof. But because we believe fundamentally that the innocent should
not be convicted, we have set this high threshold. I happen to believe
that that standard applies in cases such as this.
I make this further point, as
one who has used Executive power and who has practised in the courts
off and on for most of my life: all power is abused. All power is
abused, whether it is by senior or junior people. One should never ever
give power to the Executive, unless it is absolutely essential. Where
power is given to the Executive or to the officer of the state, one
must set that power about with constraints and provisions designed to
safeguard the citizens, because power will be abused. We are not doing
that in this Bill; we are giving
unconstrained—or relatively
unconstrained—powers. I am against that in principle,
about as passionately as I could ever be about matters in politics. I
am a libertarian. I stand for the individual against the state; that is
my role. When I have to make a choice between the relative values of
the individual and the values of the state, as a presumption, I favour
the
individual.
Ian
Lucas (Wrexham) (Lab): As I understand it, this particular
clause gives powers to the courts, not to the
Executive.
Mr.
Hogg:
Forgive me, but what is happening here is that we
are removing from the courts the ability to ask themselves the
question: what is the knowledge and the intention of the person to be
affected by the order? That is what I believe to be fundamentally
wrong.
Ian
Lucas:
Is it not the case that this concerns the courts?
It is an order to be made by the courts, to be considered by the
courts. It is not giving power to the
Executive.
Mr.
Hogg:
The hon. Gentleman is not right. If one looks at the
identity of the person who seeks the orders, one will find that it is
the Executive. It is the various agencies who are designated in the
Bill. They
will certainly on occasion abuse their powers. The
plain truth is that the courts are not given the ability to prevent
that abuse because we have struck out all suggestion that mens rea
should be included. We have not included any suggestion that the order
should be necessary, proportionate and just; we have given unfettered
powers to the court which can be exercised on the initiative of the
Executive. I am against that.I am against it for the civil
libertarian reasons that I have advanced and I have stood by in this
House for30 years.
May I move on from that point?
I am waxing unduly powerfully on the matter. My second point is this.
The Minister’s case was something like this: is it not right
that an order should be made when the facilitator continues an activity
after the facilitator has been warned? The Minister made that point
time and time again—after the facilitator had been
warned.
There are two
points to be made. First, the language of the Bill does not require a
warning. The facilitator can be made the subject of an order whether or
not the facilitator had knowledge of the activity on which complaint
has been made.
Mr.
Coaker:
It would be the prosecuting authorities that
decided whether to go for a serious crime prevention order. Let us say
that the Crown Prosecution Service decided to try to take out a serious
crime prevention order against somebody in one of the examples I have
just cited, and that that person had not been warned but the applicant
authority still went ahead with the serious crime prevention order.
Does the right hon. and learned Gentleman not agree that, if the
respondent then went to the High Court, it would be perfectly
reasonable for him to say that he had never been warned of what was
going on and that he had never been told that his lodging-houses were
being used for trafficking? Does he not agree that, in those
circumstances, the High Court would say that, because he had never been
warned, it would not be appropriate to make a serious crime prevention
order against
him?
Mr.
Hogg:
No, I do not come to that conclusion. One reason why
I do not is because clause 5(2)(b) positively enjoins the court to
ignore
“his intentions,
or any other aspect of his mental
state”.
The
Minister’s own legislation therefore requires the court to
ignore whether the person had knowledge, whether he had an intention,
and what his mental state was. That is in the Bill, and that is one
reason why I dislike the Bill so much. The facilitator can be
caught—without knowledge and irrespective of his mental state.
That is the first
point.
The second
point is that, if the Minister wants to confine matters to those
instances in which a warning has been given, then for goodness’
sake he should incorporate appropriate language in the Bill, such as
“knowingly”, or “intentionally”. The
Minister seeks to rely on certain examples. However, I happen to have
in front of me section 8 of the Misuse of Drugs Act 1971, which
stipulates that a person commits an offence
if
“being the occupier or
concerned in the management of any premises, he knowingly permits or
suffers any of the following activities to take
place”.
There follows a
list of drug-related activities. The interesting word is
“knowingly”. Parliament was there
addressing on a previous occasion precisely the issue that is before us,
and there are many other examples to cite. It has always recognised
that knowingness, the mens rea, is an essential element. In that case
it was an essential element of a certain class of offence, although in
the present case we are discussing a type of order. The Bill disregards
the precedent of many years and we should not allow that.
There is a further point. The
Minister says, “Of course we shall not act unfairly or
disproportionately, because the European convention on human rights is
incorporated in domestic law by the Human Rights Act.” I simply
do not agree. I do not wish to be rude to him, but he is ignoring the
language and architecture of that Act. There is nothing in the
convention that says, in terms, that a court must not act
disproportionately or unreasonably. Instead, there are article rights,
which are of various kinds, such as the right to a fair trial that is
contained in article 6, or the right to life and liberty. The court
determines whether those rights are in some way infringed. There is no
general injunction to act
reasonably.
Reference
has been made to the McCann case, for which incidentally—by
chance, as it were—I have the headnote. Perhaps I should remind
the Committee that the respondent in that case said that there was
infringement of his human rights as provided for by the convention.
Surprise, surprise, the House of Lords held that the convention right
in article 6.2 did not apply. The reason was that the proceedings were
not criminal but civil: precisely the kind of circumstance in relation
to which the Minister is asserting that the convention provides
safeguards—yet one in which the House of Lords held that the
convention applied not at all.
I see that you are twitching,
Mr. Bercow, but before you get very impatient with me I have
one final point to make. Of course, the courts are an important
safeguard of our rights. However, they can only really constitute such
a safeguard if they apply legislation together with, to some degree,
the principles of natural justice, and if they consider cases of
judicial review. I supported the incorporation of the convention on
human rights into domestic law for one reason. I reluctantly came to
the conclusion that Parliament was no longer protecting the rights of
the citizen. I concluded that the courts needed to have enhanced powers
precisely because we were failing in our duty. It has a very
unsatisfactory consequence in that it gives to judges the role of
legislators, and I do not like that. My own belief, oneI hold
very firmly, is that it is the business of Parliament—Members of
Parliament, the other place—to safeguard the rights of our
fellow citizens. We should not be delegating this to others. We should
have the courage to incorporate the necessary safeguarding language in
the Bills. It is quite wrong to say this is the business of the courts;
it is our business and we are not doing
it.
10.15
am
The
Chairman:
I assume from the observations of the right hon.
and learned Gentleman that he does not intend to withdraw his
amendment.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 4, Noes
9.
Division
No.
12
]
AYESNOES
Question
accordingly negatived.
The
Chairman
, being of the opinion that the principle of the
clause and any matters arising thereon had been adequately discussed in
the course of debate on the amendment proposed thereto, forthwith put
the Question, pursuant to Standing Orders Nos. 68 and 89, That the
clause stand part of the Bill:—
The
Committee divided: Ayes 9, Noes
4.
Division
No.
13
]
AYESNOES
Question
accordingly agreed to.
Clause 5 ordered to stand
part of the
Bill.
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