| 1. | We add our voice to the many Members who complained at Report stage that the House of Commons has been deprived of the opportunity to conduct, in the case of many clauses, any scrutiny at all of provisions which have serious implications for the rights and liberties of the citizen. (Paragraph 1.3)
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| 2. | We urge the Government to exercise caution in this contentious area of policy [rebalancing the criminal justice system] and to proceed only on the basis of objective evidence. We ask the Government again to clarify their position on this issue. (Paragraph 1.7)
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| 3. | We welcome, in principle, the introduction of a generic community sentence for children and young offenders, because it has the potential to enhance the legal protection for the human rights of children and young people in the criminal justice system. Indeed, Article 40(4) of the UN Convention on the Rights of the Child ("the CRC") requires that a variety of dispositions shall be available "to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence." In particular, seeking to ensure that the requirements imposed in a community sentence are more closely tailored to the individual circumstances of the juvenile offender, which is said to be one of the main aims of this Part of the Bill, should help to make the requirements imposed on juvenile offenders more proportionate. (Paragraph 1.9)
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| 4. | We note the Government's statement that it strongly believes that custody for young people should only be used as a last resort. However, we note that in the Government's response to our predecessor Committee's recommendation, it said that "intensive supervision and surveillance would be the first option for courts, and custody would be available as a second option only where the offences were so serious that only a physical restriction of liberty could be justified." (Paragraph 1.16) As presently drafted, however, there is nothing in the Bill to require that a YRO with ISS be the first resort, before custody, other than in exceptionally serious cases. (Paragraph 1.16) In our view, such a requirement would be an important additional safeguard to ensure that custody of children is only used as a last resort. Moreover, such a safeguard is arguably necessary to counter the risk that a single community sentence may lead to a quicker escalation to custody if the order is breached. We recommend that the Bill be amended to require that a YRO with ISS should always be tried before custody, unless the offence is so exceptionally serious that a custodial sentence is necessary to protect the public. (Paragraph 1.17)
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| 5. | The Government's response to our inquiry has confirmed our concern that the Bill lacks adequate safeguards to ensure that the use of custody is proportionate, not only to the offence, but to the child's age and intellectual and emotional maturity, as required by the CRC. The Government's emphasis on robust enforcement for wilful and persistent breaches of a YRO, coupled with its assertion that it "needs to maintain confidence in community sentences" appears to us to give rise to a considerable risk that young people will be accelerated into custody not because of the seriousness of their offence but because of their persistent failure to comply with the terms of their community sentences. We recommend that the Bill be amended to include an explicit reference to the requirement of the CRC that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. (Paragraph 1.21)
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| 6. | We are surprised to learn that there is not a presumption that children are entitled to publicly funded legal representation in criminal proceedings, given the seriousness of the consequences for them and the complex and intimidating nature of those proceedings for the child. We recommend that the Government amend the Bill to provide for a general right of legal representation for children in criminal proceedings. (Paragraph 1.24)
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| 7. | We recognise that the obligation in the CRC is to ensure that the best interests of the child are a primary consideration in all decisions affecting children, not the sole primary consideration. In our view, however, the effect of clause 9 of the Bill is to subordinate the best interests of the child to the status of a secondary consideration below the primary consideration of crime prevention. To treat the welfare of the child as a mere "supporting factor" is not, in our view, to treat it as a primary consideration. We recommend that the Bill be amended to delete the provision which subjects the duty to have regard to the welfare of the child to the primary duty to have regard to the principal aim of the youth justice system. We also recommend that the Bill be amended to make explicit that the sentencing court is required to have regard to the welfare of the child "as a primary consideration," as required by the CRC. (Paragraph 1.28)
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| 8. | We welcome the Government's willingness to amend the Bill, since its introduction, to acknowledge the important function of the appellate courts in upholding the rule of law by quashing convictions where there has been serious misconduct on the part of the State authorities. However, we still have two concerns about the new test for allowing criminal appeals. (Paragraph 1.31)
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| 9. | The first concern in relation to criminal appeals is whether the necessity for restricting the powers of the Court of Appeal in this way has really been made out by the Government. There is no clear evidence that the mischief the provision is aimed at is a problem in practice: the Court of Appeal has not interpreted its powers to mean that any procedural irregularity or technical defect renders a conviction unsafe. On the contrary, the Court of Appeal has generally taken a fairly robust, common sense attitude to its "safety" jurisdiction. (Paragraph 1.32) Our second concern is that the clause appears to invite the Court of Appeal to set itself up as the arbiter of factual questions going to the guilt or innocence of the appellant, which is not the function of the Court of Appeal in criminal appeals. The role of the Court of Appeal is to review the safety of the conviction, and if it thinks that a conviction is unsafe it should quash a conviction and order a retrial. The new clause appears to restrict the ability of the Court of Appeal to do this. (Paragraph 1.33)
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| 10. | We therefore recommend that the Bill be amended to allow expressly for the re-opening of criminal proceedings in appropriate cases following a finding by the European Court of Human Rights that there has been a breach of the right to a fair trial. We repeat our earlier observation that what is required is not an automatic right to have proceedings reopened following a finding of a violation of a Convention right by the Strasbourg Court, but a procedural mechanism for deciding whether proceedings should be reopened to review the safety of the conviction in the light of that judgment. We hope to propose an amendment to give effect to this recommendation in time for the Bill's Committee stage. (Paragraph 1.35)
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| 11. | We share the concerns expressed by the Parliamentary and Health Service Ombudsman, in her letter to us dated 10 December 2007, and by the Prisoner Ombudsman for Northern Ireland, in his letter dated 2 January 2008, that the new Commissioner will not in fact be truly independent of those subject to investigation, particularly the Secretary of State, because of the various ways in which the Secretary of State can control and influence the new Commissioner, as summarised above. We are also concerned that the proposal will in fact diminish the overall level of protection for vulnerable prisoners because it removes investigations from the remit of an existing genuinely independent Ombudsman. We recommend that the Bill be amended to make the Commissioner truly independent of the Secretary of State and accountable directly to Parliament not the Secretary of State. (Paragraph 1.40)
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| 12. | We do not accept that there is any rational connection between limits on compensation for miscarriages of justice and limits on compensation for victims of crime. In our view, where the State is responsible for a miscarriage of justice, there arises an obligation to restore the individual as closely as possible to the position he or she would have been in but for the miscarriage of justice. It is not difficult to imagine extreme cases in which a limit of £500,000 would fall far short of such an amount, for example where an innocent person has served a very long sentence for a very serious crime and so foregone a lifetime's opportunities. We recommend that the cap on the amount of compensation be deleted from the Bill. (Paragraph 1.44)
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| 13. | Our concerns about the vagueness of the definition of the offence of possession of extreme pornographic images, which we expressed in correspondence with the Minister, remain. It is in our view questionable whether the definition of the new offence in clause 113 is sufficiently precise and foreseeable to meet the Convention test of "prescribed by law". The offence requires the pornographic image in the individual's possession to be "extreme". An assessment of whether an image is or is not "extreme" is inherently subjective and may not, in every case, be, as the Government suggests, "recognisable" or "easily recognisable". This means that individuals seeking to regulate their conduct in accordance with the criminal law cannot be certain that they will not be committing a criminal offence by having certain images in their possession. We look forward to the Government bringing forward an amendment to make the scope of the new offence more precise. (Paragraph 1.50)
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| 14. | We welcome the motivation behind the Bill's provisions on prostitution, in particular the emphasis on rehabilitation and its attempt to facilitate assistance for those vulnerable women who are forced to resort to prostitution. Such measures have the potential to enhance the human rights of such women. However, we are concerned that these measures may in fact lead to the detention of women for up to 72 hours for failing to attend a meeting, and in fact may eventually lead to their imprisonment for failure to comply with the terms of court orders. (Paragraph 1.55)
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| 15. | In our view, the continued existence of the offences of blasphemy and blasphemous libel can no longer be justified, and we are confident that this would also, in today's conditions, be the view of the English courts under the Human Rights Act and the Strasbourg Court under the ECHR. We therefore look forward to the Government amendment to the Bill in the Lords abolishing the offences of blasphemy and blasphemous libel. The amendment proposed in the Commons had the virtue of simplicity, by just abolishing the two offences. We recommend that the Bill be amended to similar effect. (Paragraph 1.60)
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| 16. | We welcome the creation of the new offence of incitement to hatred on grounds of sexual orientation as a human rights enhancing measure. As Stonewall has demonstrated, there is now considerable evidence that gay people in particular are often the subject of material inciting people to violence against them. Where such clear evidence of harm exists, there is a positive obligation on the State under Articles 2, 3 and 8 ECHR (right to life, prohibition of inhuman and degrading treatment, and right to respect for private and family life) to ensure that the criminal law is adequate to protect people from such harm. We are gratified to see that there was a clear cross-party consensus in the Commons that there is an obligation on the State to act to protect against such harm. (Paragraph 1.62)
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| 17. | We welcome the fact that the new offences concerning incitement to hatred on grounds of sexual orientation are narrowly defined so as to apply only to threatening words or behaviour intended to incite hatred against people on the basis of their sexuality. In our view this provides an appropriate degree of protection for freedom of speech. (Paragraph 1.64)
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| 18. | We will be writing to the Minister to ask about the evidence the Government has about the extent of the problem of incitement to hatred on transgender grounds and may return to the issue in a future report. (Paragraph 1.65)
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| 19. | We are satisfied that the new clause clarifies rather than amends the existing law, by articulating clearly in statutory form some of the most important elements of the case-law interpreting the scope of the defences in the use of force to prevent crime. As such, in our view the clause is to be welcomed as a clarification of the existing law. To this extent we consider the clause to be a human rights enhancing measure because it brings greater precision to the scope of a defence to a criminal charge and therefore improves legal certainty in the criminal law. (Paragraph 1.68)
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| 20. | The human rights issue which this matter raises is whether the right to life is adequately protected by the defence as it currently stands in the Bill, or whether the inclusion of "honest belief" as part of the defence risks putting the UK in breach of the positive obligation under Article 2 ECHR to ensure that its criminal law provides adequate protection for the right to life. This is an obligation which applies even to protect life against the unjustified use of force by other individuals, but it applies with particular strength where the use of force is by state agents. (Paragraph 1.72) Because the provision was inserted by Government amendment at Report stage, we have not yet corresponded with the Minister about this issue. We will write to him shortly and report further in due course. (Paragraph 1.73)
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| 21. | We are concerned that the power to interfere with various Convention rights by imposing a VOO is insufficiently defined in law to satisfy the requirement of legal certainty which is also a fundamental feature of human rights law, including the ECHR. (Paragraph 1.79)
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| 22. | In our view, in order to provide the requisite degree of legal certainty, the Bill should be amended to provide, at the very least, an indicative list of the types of prohibitions, conditions or restrictions which may be imposed, although we consider that it would be more appropriate, and offer greater protection for individual rights, if an exhaustive list were set out. (Paragraph 1.80)
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| 23. | We consider VOOs to be more akin to control orders and serious crime prevention orders, both in terms of the seriousness of the conduct in which the individual must have been involved before the order can be made and in the severity of the possible restrictions which can be imposed. (Paragraph 1.89)
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| 24. | In our view, the combination of the fact that a VOO will only be made where an individual has already been convicted of a serious violent offence, the risk being protected against is the risk of that person causing serious violent harm in the future by committing a serious criminal offence, the severity of the restrictions to which an individual may be subject under a VOO, and the possible duration of such an order (up to 2 years and indefinitely renewable) means that in most cases an application for a VOO is likely to amount to the determination of a criminal charge for the purposes of Article 6 ECHR and therefore to attract all the fair trial guarantees in that Article. (Paragraph 1.90)
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| 25. | In our recent work on counter-terrorism policy and human rights we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside of the criminal process and which avoid the application of criminal standards of due process. We are concerned that the introduction of VOOs represents yet another step in this direction. (Paragraph 1.91)
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| 26. | We welcome the Government's acceptance in debate that the criminal standard of proof applies. However, this acceptance should be spelt out on the face of the Bill to provide that before making a VOO, the court must be satisfied beyond reasonable doubt that the person has "acted in such a way as to make it necessary to make a violent offender order" (clause 151(2)(b)). As we have stated on previous occasions, we do not consider that issues of such importance, and with such serious consequences for the individual, should be left to guidance, but instead should be made explicit on the face of the Bill. (Paragraph 1.95)
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| 27. | We recommend that the Bill be amended in the manner proposed in Committee to make explicit that the appropriate standard of proof for an application for a VOO be the criminal standard, in accordance with the decision of the House of Lords in McCann. (Paragraph 1.96)
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| 28. | We are concerned that VOOs may be made without oral evidence or the opportunity for the individual to cross examine witnesses. We recommend that there needs to be a full adversarial hearing in order to ensure that the fairness guarantees in Article 6 ECHR are met. (Paragraph 1.97)
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| 29. | We recommend that clause 153(3) (relating to interim violent offender orders) be amended to include, as a third requirement, that prima facie evidence be provided to the court that the individual has engaged in the behaviour set out in clause 151(2)(b). Further, we suggest that the period for which an individual IVOO may be granted be reduced from four weeks to a more limited period, and that IVOOs be non-renewable. (Paragraph 1.99)
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| 30. | We remain to be convinced that the imposition of a VOO or IVOO, particularly one with especially onerous terms, would always comply with Article 7 ECHR. We are disappointed that the Government has chosen not to put in place safeguards to ensure that an individual is not retrospectively punished and we recommend that the Government reconsiders its opposition to introducing safeguards in this regard. (Paragraph 1.102)
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| 31. | We are pleased to note that the Government intends to produce guidance dealing more fully with the operation of premises closure orders in practice. However, in our view, this guidance will set out requirements which, for reasons of legal certainty and to ensure the proportionality of the measures with Convention rights, should be contained in the Bill itself. In particular, we are disappointed that the Government does not propose to include, on the face of the Bill, the requirement that a premises closure order only be imposed as a last resort, and that the needs of children and vulnerable adults be taken into account. We encourage the Government to reconsider its position in order to ensure that premises closure orders are proportionate to the interference with the rights to respect for family and home life (Article 8 ECHR) and the peaceful enjoyment of property (Article 1 of Protocol 1). (Paragraph 1.110)
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| 32. | We consider that the Government has made its case for the necessity of a new power to deal with individuals who cause a nuisance or disturbance on NHS premises. The proposed new offence appears to attempt to strike a balance between the desire for staff and patients not to suffer nuisance and disturbance and the needs of those requiring medical attention to be treated. We welcome the safeguards which the Government has proposed and its commitment to ensuring that the rights of individuals to access medical treatment or advice are protected. The question is whether the proposed measures put into effect the Government's commitment. We are concerned to see that the manner in which the power to remove may be exercised is to be contained in guidance, rather than on the face of the Bill and encourage the Government to reconsider this omission. In particular, we suggest that the Bill should be amended to include express provisions on the matters currently covered by Clause 172(2)(d) to (g), as the exercise of the powers in relation to these issues has the capacity to seriously interfere with an individual's Convention rights. We recommend that the Bill set out an indicative list of the factors which would constitute a reasonable excuse for the purposes of Clause 170(1). Whilst the Government has told us that nuisance or disturbance caused by an individual suffering a mental or physical condition will prevent the commission of an offence or removal, it is unclear whether this would include behaviour due to an addiction (e.g. to drugs or alcohol). We propose to write to the Minister to seek clarification on this matter. (Paragraph 1.122)
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| 33. | We welcome the Government's clarification that the Secretary of State's designation of a person under clause 181 of the Bill would be unlawful if, in the opinion of a court, the effect of designation would breach the UK's obligations under the Refugee Convention. (Paragraph 1.125) We are concerned that this Part of the Bill gives rise to a further risk of breaches of the Refugee Convention by the UK and we recommend that the statutory construction of Article 1F of that Convention be repealed. (Paragraph 1.126)
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| 34. | We consider that the duty on the State to ensure the safety and well-being of prisoners is a fairly compelling consideration capable in principle of justifying some restriction on the right of prison officers to take some forms of collective action to protect their interests. The question is whether the restrictions contained in the Bill are proportionate to the pursuit of that aim. (Paragraph 1.130) First, why is it necessary, in order to protect the welfare of prisoners, to prohibit all forms of industrial action by prison officers rather than just strike action? Second, has the point of last resort been reached, or is there still a possibility that a voluntary agreement with the Prison Officers Association could be reached? We will write to the Minister in relation to these points and may return to the matter in a future report. (Paragraph 1.131)
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