Serious Crime Bill [HL]

Although my name is not down to the proposal that Clause 1 should not stand part of the Bill, my noble friend Lord Dholakia has suggested that I might be the person to speak to it. Before I begin, I should do two things. First, I declare an interest: I am the chair of the council of Justice, an organisation which submitted a briefing on the Second Reading of the Bill, although it has not as yet submitted a further brief on the Committee stage. Secondly, I speak on this occasion for myself and not on behalf of my party. It is an important distinction to make on this occasion because I shall be making certain suggestions which have arisen in my mind as a result of the meeting that the Minister arranged last night. I have therefore not had a chance to clear them properly with my noble friend. I spoke on this part of the Bill on Second Reading. As I said then, and say again today, it is no answer to the problem that serious crime prevention orders will be made by judges who will act reasonably. We should not create laws that create scope for injustice and rely on the judiciary to apply those laws with moderation. I believe that Part 1 as it stands is incompatible with the rule of law and with the basic principles of our criminal justice system. However, I want to be constructive. I understand the objectives at which the Government are aiming and I want to see whether it is possible to suggest acceptable ways in which those objectives could be achieved. I have no great problem in principle with imposing SCPOs on conviction for serious offences, provided that the SCPO is limited—I would want it to be limited in the Bill—to orders that are necessary and proportionate. An SCPO in those circumstances could be regarded as part of the sentence. It is the same principle as imposing a driving ban on a defendant charged with dangerous driving, in addition to a fine or prison sentence, and perhaps more directly similar to placing someone on a sex offenders register, with the effect that that has on the chance to obtain certain kinds of employment. I have more problems with imposing SCPOs after a conviction by a foreign court, but those problems could be overcome, and I do not think this is the time or place for considering how that might be done. The real problem arises where there has been no conviction because imposing significant restrictions on the liberty of people who have not been convicted of any crime is not acceptable. This potentially goes far beyond the extent of the football ban. The only comparable circumstance is that of control orders under the terrorism legislation, for which there is a much stronger case because it is the aim of some terrorists to commit mass murder. This provision contravenes the basic principles of our legal system. We are facing a real and increasing danger of ASBO-creep; that is, the use of civil orders to evade jury trial and the need for proof beyond reasonable doubt. Is there any alternative? There may be. The briefing the Minister arranged yesterday was very interesting. I think she has the Chatham House rule the wrong way round because it says that you can tell the world what was said at the meeting but not who said it. She has applied it the other way round. We know, therefore, that the director of SOCA was there, accompanied by one of his very senior colleagues. It became apparent that they were concerned in particular with the activities of people who assist organised crime without necessarily being parties to that crime. We have been given some examples of the way in which that might happen. The noble Lord, Lord Lucas, gave an example in relation to drug dealing. Another similar example, which I feel happy to give, as it was used as an example yesterday, is that the legislation would include, for instance, an owner who lets a property that a tenant uses as a greenhouse for growing cannabis, where the owner chooses not to go round to see what is happening there. These are all cases in which, under the existing law, there could be no prosecution because the individual was merely providing facilities, was not part of any actual criminal act and was not part of the conspiracy—no doubt having taken great care not to be so. Facilitating criminal activity by providing goods or services or the use of property should itself be capable of becoming a criminal offence. There is a clear precedent for making such conduct an offence; that is, in connection with the law relating to money laundering. One has only to look at Part 7 of the Proceeds of Crime Act 2002, one of the most powerful weapons against organised crime. It provides that if a defendant knows or suspects, or has grounds for knowing or suspecting, that money which he is handling is the proceeds of crime, he commits a criminal offence if he does not report it. That would need some modification but I do not think that would be very difficult. If the defendant provides goods, services or property to be used for the facilitation of a serious criminal offence, and if the defendant knows, suspects or has reasonable grounds for knowing or suspecting that the goods, services or property are to be used for that purpose, then that should be a crime—either if it is known when the person enters into the transaction or if he becomes aware of it at a later date and fails to notify the police. That provision would be a great improvement on the present proposals because the creation of such an offence means that it would be criminal procedure which had to be used in order to obtain a conviction. It would mean imposing criminal penalties on a conviction which could include a serious crime prevention order. I believe it will have every bit as strong a deterrent effect on the facilitation of crime as the Bill now does, and it avoids the creeping threat to the rule of law from the use of civil procedure to impose criminal penalties. I invite the Government to consider this alternative way of dealing with the issue. I recognise that it is impossible to rewrite Part 1 between now and Report, but it could be removed from the Bill and the Government could then either enact the rest of the Bill or, if they are able to move quickly enough, introduce a new Part 1 when the Bill gets to the House of Commons. Part 1, in its present form certainly, should not be allowed to remain in the Bill and should be dealt with appropriately on Report.