Serious Crime Bill [HL]

My Lords, if I may, I shall confine my remarks to Part 1 and not try to cover the other parts. I want to cover Part 1 because it is the part which concerns me most closely. When I first read it, I had not then seen the briefing notes provided by Liberty or JUSTICE and I had not read the very stringent criticisms contained in the report of the Select Committee on the Constitution. I must say that on reading Part 1, I could scarcely believe my eyes. The Government seem to be making exactly the same mistakes as they made when they forced the Prevention of Terrorism Act through Parliament in spring 2005. I could understand and sympathise with prevention orders in the case of those who have been convicted of a serious crime as part of the sentence imposed by the court. I could understand prevention orders in the case of those convicted of serious crimes by a foreign court, assuming we can ever find out who they are. That all makes perfectly good sense to me, but I simply cannot understand how one can justify prevention orders in the case of a man who has committed no crime—indeed, who may have done nothing more than facilitate the commission of the crime by others, even though he did not intend to facilitate the crime and even though in fact the crime has not been facilitated, but only made more likely, however one is going to decide that and whatever it may mean. That, I think, is the effect of Clauses 1, 2 and 4 in Part 1. Those provisions are quite extraordinary. Equally extraordinary, indeed astonishing, is the range of restrictions that may be imposed on such a person. There are restrictions on where he can live, where he can go, who he can talk to, and what he can do for a living. If that were not enough, the court can authorise further restrictions to be thought up by the police, as the noble Lord, Lord Thomas, has already observed. When I read provisions such as those, I find it hard to believe that we are living in England. My immediate reactions on reading Part 1 are thus exactly the same as the more mature reflections of JUSTICE, of Liberty, and of the Constitution Committee. I hope that we will hear more from the noble Viscount later, who is a member of the committee, on what its reasoning was. Rather than concentrate on the detailed provisions, which will come in for a great deal of criticism in Committee, I shall concentrate on something broader; the whole approach adopted by the Government in Part 1. I was one of those who opposed control orders. I remember looking then for a precedent for the use of the civil justice system to impose what amount to criminal sanctions. I could find only two: non-molestation orders in domestic proceedings, and the anti-social behaviour orders. The industry of the Constitution Committee has identified some other instances, but surely we would all agree that control orders were in a completely different league from anything that had gone before. They were a way of depriving someone of his liberty without what Americans call due process of law. That is exactly what the Court of Appeal subsequently decided in the Secretary of State v JJ, where it quashed the standard form of control order on the ground that it was in plain breach of Article 5 of the convention. Mr Justice Sullivan held that it was not even a borderline case, and his views were upheld in the Court of Appeal. One would have thought, perhaps optimistically, that the Government would have learnt something from the reception which the Prevention of Terrorism Act has subsequently received. When that Act was being forced through Parliament in 2005, it got through only because we were given a promise, which many Members of the House will remember, that we would come back to control orders at the start of the Session in 2006. That promise has not been kept, and we are still waiting. Instead of justification for the control orders then imposed, we have the regrettable procedure extended from terrorism to serious crime. It is time we protested against this method of dealing with crime. The Government say that the restrictions to be imposed under the present Act are justified because they are preventive, not punitive. However, restrictions do not cease to be punitive just because they are called preventive. I regarded, and still regard, control orders as punitive and an abuse of the civil process. I say the same about the prevention orders proposed in the Bill. As a result, I agree with every word of the last paragraph of the Constitution Committee’s report, which has been read by the noble Lord, Lord Thomas. I have asked myself what sort of people these provisions are directed at. I had thought that they might be directed at people who organise serious crime but take care to remain in the background. The noble Baroness, Lady Scotland, said something that led me to believe that that might be the case. I suppose they could be said to ““facilitate”” crime, although it is perhaps an odd word to use in the circumstances. I do not doubt that such people exist, but surely they ought to be prosecuted under the ordinary law of conspiracy. We have seen how that can succeed in the Abu Hamza case and in two or three others since then. What we do not want is further legislation. It is said that there may not be enough evidence to convict people of conspiracy. If that is so, they ought not to be subjected to quasi criminal sanctions. Before we decide whether there is enough evidence in such cases, please let us look again at the interception of communications, mentioned by the noble Baroness, Lady Anelay. Since we last debated that subject, JUSTICE has published a brilliant report on it, entitled Intercept Evidence: Lifting the Ban. It deals with all the arguments on both sides and it reaches a clear conclusion. Surely it is time that we, too, should take the plunge in this matter and bring ourselves into line with every civilised country by allowing this evidence to be admitted. I said I thought that the purpose was to catch those who organise serious crime, but looking at the Home Office document, New Powers Against Organised and Financial Crime, I wonder whether that is true. It seems that the Home Office is more concerned with the small fry; with those on the fringes of serious crime; with the bit players. Let me read two sentences from the report at paragraph 3.2. It states: "““But in the case of organised crime investigations, there may be significant numbers of individuals at the fringes who cannot be pursued in the main trial, and for whom””—" and this is important— "““a separate trial is not thought worthwhile. Such individuals’ role might have been marginal and not warrant a prosecution””." A little later it states: "““A preventative order disrupting future criminal activity by these currently minor players could play an important role in preventing them taking over the organisation in the leaders’ absence””." I find those remarkable sentiments. If such people on the fringes are thought to have played a role in the offence, they should be prosecuted however inconvenient it might be to the prosecution service. People on the fringes of crime who are thought to have been involved are entitled to the verdict of a jury one way or another. What is not tolerable is for that question of fact—because it is a question of fact—to be decided by a judge. It is not what judges are for. In criminal cases and quasi criminal cases, it is the jury which decides disputed issues of fact and not the judge.