Serious Crime Bill [HL]

My Lords, I endorse the sentiments expressed by my noble friend Lord Goodhart. Perhaps I may say how delighted and pleased we are to see the noble Baroness, Lady Scotland, in her usual place. I thank her for introducing the Bill. Those are about all the good things that I will say for now, but there are many issues that we will need to tease out in Committee. Two days ago I had the pleasure of a very informal chat with the noble Lord, Lord Peston, in the Library. The conversation turned to the Serious Crime Bill. We both agreed that there was a basic flaw in the way in which the Bill is framed. Nowhere is there a clear definition of ““serious crime””. We have a category of crimes that are identified as serious. I will name a few: drug, people and arms trafficking; prostitution and child sex; money laundering, fraud, corruption and bribery; counterfeiting; blackmail; intellectual property offences; and environmental offences. The first question for the Minister is: if there is no definition of serious crime, where is the threshold at which a crime becomes a serious crime? When is a serious crime downgraded to a not-so-serious crime? Schedule 1 to the Bill lists serious offences. That is helpful, but what will Joe Public make of that schedule? A number of noble Lords have talked about the issue of seriousness in relation to paragraph 11(1), which refers to, "““fishing for salmon, trout or freshwater fish with prohibited implements””." If I were an angler, that would be a very serious matter, but how do you convince people in our inner-city areas that robbery with violence or gun crimes are less serious than a fishing expedition? No one would dispute that serious and organised crime must be tackled. That is a common understanding among us. Such crime blights the lives of law-abiding citizens, and prevention and detection must be at the heart of any legislation. Equally, we must ensure that no criminals benefit from it. For those reasons, we want the Serious and Organised Crime Agency to succeed. We do not dispute that Parliament should ensure that the law enforcement agencies have all the tools necessary to eradicate crime, but, in doing so, we must tread very carefully on matters of rights and liberties. My noble friend Lord Goodhart spelt out the dangers. I was delighted to listen to the noble Lord, Lord Dear, with his vast experience of policing matters and of a number of major investigations that he has led. His experience is so vital that we should take serious note of what he says about Part 1. That is the advantage that we have in the House of Lords, compared with the people in the Commons; we have people with vast experience on the issue that we are dealing with and, if we do not take their advice, we do so at our peril. Part 1 introduces a new serious crime prevention order, which would take the form of a civil injunction, a breach of which would be a criminal offence. The proposal is similar in its construction to the current sex offender order, which can be used to place restrictions on someone previously convicted or cautioned for sexual offences who is behaving in a way that is preparatory to committing a further offence. For example, if someone with a history of sexual offending against children has started hanging around near school playgrounds—which is not in itself a substantive offence or an attempt to commit an offence—a court can pass a sex offender order requiring him to refrain from doing so. That is a reasonable power, which can be of obvious value in preventing crime, provided that it is used appropriately and proportionately. Under the Bill, for a crime prevention order to be imposed, an offender must previously have been involved in serious crime; he or she must now be behaving in a manner likely to facilitate further serious crime; and the court must consider that the restriction that it imposes will prevent the offender’s involvement in further serious crime. However, the scope of the provision is drawn very widely. In particular, the Bill is vague about what activity counts as serious crime. As I said, Schedule 1 contains a list of offences, but they include offences such as fraud, which range very widely in seriousness. Particularly disturbingly, Clause 2(2)(b) also allows courts to pass a crime prevention order on people with previous offences that are not specified in the schedule but which, "““the court considers to be sufficiently serious to be treated ... as if it were so specified””." In other words, the court can regard any offence that it likes as serious. That is an Alice in Wonderland definition; it is effectively saying that words can mean whatever the courts want them to mean. That is an unacceptably wide degree of discretion to give courts in relation to powers that could potentially be used to impose significant restrictions on the liberty of individuals who have not been convicted of a new offence. This is where we need to take serious note of the Constitution Committee’s report on the Bill—a point well stressed by my noble friend Lord Goodhart. Many noble Lords have commented on matters relating to serious crime prevention orders and, in particular, about the far-reaching restrictions that may be placed on a person against whom no criminal proceedings have been instituted. The Government’s strategy to defeat organised crime now goes beyond intelligent policing and law enforcement provision. The Bill now introduces measures to prevent crime from happening in the first place. Have the Government quantified the resources, both financial and administrative, that are required to deal with this area of offences? At present, nearly 10 young persons a week are sent to prison for breach of ASBOs. What will be the impact on the prison population if that trend continues with the so-called adult ASBO orders? Part 2 abolishes the offence of incitement and replaces it with two new offences: one of intentionally encouraging or assisting crime; and one of encouraging or assisting crime believing that an offence will be committed. In principle, that is a welcome provision, which will both clarify the law and remedy a lack of logic in the current common-law provision. Currently, someone who encourages another person to commit a crime is guilty of an offence, even if the other person does not in fact commit the offence, but someone who actively assists another person to commit an offence does not commit an offence if the other party does not in fact go on to commit the crime. There is an obvious lack of logic in treating words of encouragement as more serious than the deed of actually helping someone to commit a crime—for example, by giving another person an instrument for them to use in a burglary or an assault. The newly formulated offences proposed in the Bill, which are based on recommendations by the Law Commission, would make the law more logical and consistent. They are limited to circumstances in which the individual either intends a crime to be committed or assists someone to commit a crime believing that it will be committed. The Government have wisely retreated from the idea of defining the mental element in the offence more widely than the Law Commission recommended, which they were considering at one point. Although the detail of the provision will be scrutinised carefully in Committee, the overall shape of Part 2 seems to be reasonable and any lingering doubts could be resolved in Committee. Part 3 contains a range of measures on the provision of information for the purpose of preventing and detecting fraud. It also transfers various functions of the Assets Recovery Agency. I need not go into that, because generally that organisation has had a record of failure in recovering assets. Let us hope that SOCA will achieve better results than the ones that we have had so far. To sum up, the Bill contains some measures that, if used appropriately, could play a legitimate and useful part in tackling serious crime. However, some aspects of the Bill, particularly Part 1, contain wide and loose definitions, not least of serious crime itself, which must be clarified and, where necessary, restricted before this legislation reaches the statute book. If that is not done, the Bill is heading for serious trouble during its further stages in this House.