Serious Crime Bill [HL]

moved Amendment No. 42: 42: Clause 4 , page 5, line 3, leave out paragraph (b) The noble Baroness said: I shall speak also to Amendments Nos. 43, 45 and 46. They probe the relevance of a person’s mental state to the ability of a court to impose a serious crime prevention order on them. They ask the Government to define what is meant by the term, "““any other aspect of his mental state””." It is not made clear in the Explanatory Notes. Clause 4 appears to treat those with mental incapacity or mental ill health inappropriately. It supplements Clauses 2 and 3 and contains further provisions for a situation where a third party is accused of facilitating the commission of a serious crime by another person—in some circumstances, even where that offence is not committed. The Committee will recall that the facilitator may find himself—despite Jack Straw’s announcement last week, I shall continue to refer to ““himself”” to savethe time of the Committee—made the subject of a serious crime prevention order that can seriously constrain his professional and personal life. Clause 4(2) provides for the occasions when a person is accused of facilitating a serious crime thatis committed, whereas subsection (3) relates to occasions when the respondent conducts himself in a way that is likely to facilitate the commission of a serious offence even when it is not then committed. Subsections (2) and (3) appear at first reading to give respite to a third party who is carrying on an honest business or other activity and does not intend to facilitate serious crime. On the Bill’s first day in Committee, the Minister was keen to assure the Committee that innocent third parties should not in any way face difficulties as a result of the operation of Part 1. The clause requires the court to ignore any act that the respondent or defendant—whatever one wantsto call them—can show was reasonable in the circumstances. As ever, I would much prefer to avoid the adoption of the reverse burden of proof, which can be objectionable. It looks as though worse is to come, because both subsections (2) and (3) are subjected to the further requirement that the court must ignore the intentions and other aspects of the mental state of the respondent at the time of the act in question—not ““may””, but ““must””, ignore those other aspects. On the first day in Committee, we debated at length the question of intent. Although I am still uneasy about the Government’s position, I have read Hansard since then and I am prepared to review my initial scepticism. There may be some need for amendment and improvement; I am looking closely at that. The problem is that the injunction in Clause 4, that the court must ignore the person’s mental state, does appear extraordinary. The Explanatory Notes, at paragraph 26, explicitly state: "““This means that it does not matter if the respondent did not, for example, intend to facilitate the commission of a serious offence, or had no knowledge that he was conducting himself in a way that was likely to facilitate serious crime””." It would appear that, as a consequence, the court would be required to ignore a person’s mental health or mental incapacity; otherwise what does ““mental state”” mean? I do not believe that the Government's intention would be to treat those with mental ill health or mental incapacity in that way. If it is the Government’s intention—I notice that the Minister shakes her head and says it is not—I would wish the Government to say why they thought that it was a proportionate way of proceeding. In drafting this part of the Bill, did the Government consult organisations that are expert on matters of mental health and mental capacity? If so, which ones, and what was their response? Additionally, do the Government intend that this provision could or would prevent the court taking into account the fact that a person had been subject to duress; so there was no question of mental incapacity or mental ill health, but perhaps they had been subject to duress and were in a mental state of fear when they conducted themselves in a way that the Government believe is enough to make them a likely subject for a serious crime prevention order? I ask the question against the background that the Court of Appeal recently made decisions in another field, immigration and asylum law, regarding the impact of someone being in a state of fear. I would be interested to see how that will impact on the provisions in this clause. On the point about ““mental state”” as a term in this clause, can the Minister tell us what other precedent there is for statute requiring a court to ignore a person's mental state? On the technicalities of my amendments, Amendments Nos. 42 and 45 simply remove paragraph (b) entirely from subsections (2) and (3) and the other two amendments remove the references to, "““any other aspect of his mental state””." I beg to move.