Serious Crime Bill [HL]

My Lords, I speak as a member of your Lordships’ Constitution Committee. Unfortunately, our chairman has to be elsewhere and, in the best Army tradition, I have been volunteered as his inadequate stand-in. The committee has produced a fairly brief report on the Bill, and on Part 1 in particular. It was published only last Friday and, as some of your Lordships may not have had time to study it fully, I was going to deal briefly with its main points. However, not having the status of the chairman of our committee, I did not get the position he would have had on the speakers’ list, so parts of the report have already been quoted. I will try to be coherent without being over-repetitive. We received this morning an extremely prompt reply from the Minister; it seemed not to dispute the substantive comments we made so much as justify—or seek to justify—the departure from the constitutional norm in what she says are the exceptional circumstances of the Bill. I join the noble Lord, Lord Goodhart, in saying how delighted we are to see the noble Baroness back; her presence greatly enhances debates on this Bill and any other on which she will enlighten us. The final sentence of our report, which has already been quoted, reads: "““Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction””." I shall seek to indicate why we reached that conclusion. Under the Bill, a serious crime prevention order can be made by a civil court acting on the civil burden of proof against someone who has not been convicted of any crime. The Minister says, and I am sure rightly, that the court will impose a quite high standard of proof, but that is not expressly provided for. In addition, there will be no jury, and hearsay evidence and such matters will be admissible, which would not be the case in a criminal trial. The court has to be satisfied of two things. The first is that the individual has been involved in a serious crime. That can be anywhere in the world and ““involved”” includes, for example, a person conducting himself in a way that was likely to facilitate the commission by anyone of a serious crime, whether or not that crime was committed. I ask your Lordships to note that the Bill does not in any way say that the individual has to be intentionally or knowingly involved in facilitating the commission of a crime; he has only to do something that is likely to facilitate it; therefore, he can have done it without any fault on his part at all. The court must then have reasonable grounds to believe that the order would protect the public by preventing or restricting an individual’s involvement in serious crime in this country. Again, it is important to note that that can be any serious crime, not only offences of the same kind as the court believes the individual has already been involved in. The Minister’s response to that criticism is that serious criminals are nothing if not flexible or diverse, and a drug smuggler may switch to people-smuggling. Criminal ingenuity is nothing new, but in this Bill we have committed ourselves for the first time to the proposition that if you have committed one crime you should be deemed highly likely to commit other sorts of crime, although they are not even of the same kind. A serious crime may be one of those offences listed in Schedule 1, many of which are obviously serious and some of which could be serious or could be trivial. As other noble Lords have said, others seem almost inevitably trivial, although someone such as the noble Lord, Lord Kimball, would think that fishing with a prohibited implement was probably a much more serious crime than murder, treason or rape. However, a serious crime may also be—and this, one would have thought, will raise the eyebrows of most people used to the criminal law—any other offence that the court considers to be sufficiently serious to be treated as if it were on the list. Therefore, the Government accept that the court will have very wide discretion in deciding what fulfils the test, and the person in question may have no knowledge when he was thought to be going to commit or facilitate a crime that it was one that brought him within the legislation. When the court has decided that the two requirements have been fulfilled, it can make an order containing any prohibition, restriction, requirement or other term as it thinks appropriate for protecting the public by restricting that person's involvement in any type of serious crime. As has been said, the Bill gives examples of the kind of provision that can be made but does not impose any limit. Extremely wide-ranging examples have been read out, but that does not mean that they cannot range even wider. I come to perhaps the most amazing provision of all: you are not to do anything that a police officer tells you that you are not to do. A police officer can say, ““You are not to go out of the house the whole weekend and you are not to allow anyone to visit you””. It can be said that that provision might be set aside. None the less, it will be there unless and until somebody succeeds in having it set aside. It seemed to everyone on the committee that these provisions are a major departure from the basic principle of English common law, whereby the criminal law is the only mechanism to punish criminal activity and the civil law can grant an injunction only on a claim by an individual who has already been injuriously affected by the defendant’s wrong, and then only to prevent a repetition of that wrong. It is true that there has already been some erosion of that general principle in football banning orders and in ASBOs, but in our view the Bill goes a long way further and wider than anything which has gone before. It is not for the committee to decide whether the policy of the Bill is necessary, justifiable or desirable. We merely draw the House’s attention to the fact that it seems to constitute a major change to the principles of our constitution, and a change that, we suggest, the House may wish to consider very carefully.