Serious Crime Bill [HL]

moved Amendment No. 3: 3: Clause 1 , page 1, line 10, at end insert ““; and (c) it is satisfied that it is not possible to prosecute the person for a criminal offence.”” The noble Lord said: The amendment has been grouped with Amendments Nos. 5 and 9 and would restrict the ability to make serious crime prevention orders in situations where the High Court was satisfied that it would not be possible to prosecute a person for a criminal offence. It would require criminal investigations to be continued following the making of an order, with a view to a criminal prosecution. We suspect that serious crime prevention orders would become an unacceptable legal shortcut and make it possible to punish individuals without the administrative inconvenience of fair trials and due criminal process. The government response is that that is not the aim, and they argue that these orders are needed to deal with cases where a criminal prosecution would not be possible, and that the orders are therefore the only options. In the debate of 7 February the Minister said, "““I know that in the press coverage of the publication of the Bill there has been much mistaken comment about these orders being a way for law enforcement agencies to get around troublesome prosecutions. I assure the House that that is not the intention””.—[Official Report, 7/02/07; col. 729.]" That assurance is not a sufficient guarantee. Nothing in the Bill would prevent a serious crime prevention order being used as an alternative in cases where a criminal prosecution would be entirely possible but where it was thought either to be too troublesome due to the fair-trial hurdles that would need to be crossed or not to provide a sufficiently broad range of remedies. The predecessors of these orders, ASBOs and control orders, which the noble and learned Lord, Lord Lloyd, mentioned, demonstrate the need for express safeguards to be included in the Bill. It has been common for ASBOs to be used as an easier alternative to a criminal prosecution, because it is more straightforward to collect and rely on hearsay evidence. Parliament was similarly concerned that control orders would be used as an easy alternative to criminal prosecutions for those involved in terrorism, and insisted that a provision be included in the Prevention of Terrorism Act 2005 that required the possibility of a criminal prosecution to be considered before a control order was made and for a criminal investigation to be continued following the making of the order. Notwithstanding that provision, it appears that incomplete consideration has been given to the possibility of prosecutions prior to the making of control orders. That was one of the reasons why the High Court decided on 16 February that the Home Secretary had exceeded his powers under the PTA 2005 and, therefore, quashed the control order. There is every reason to fear that the ability to deal with a serious crime by using an order will remove the incentive to pursue a criminal prosecution. Our amendment would ensure that that was not the effect of serious crime prevention orders and would thereby safeguard the Government’s intention, expressed by the noble Baroness, Lady Scotland. The amendment would require the High Court to be satisfied that a person could not be prosecuted before making a serious crime prevention order and that all appropriate lines of criminal investigation were pursued diligently following the making of an order. I beg to move.