Serious Crime Bill [HL]

I am grateful to all noble Lords who have tried to assist me in untangling what remains a difficult part of the Bill. As the noble Lord, Lord Thomas of Gresford, said, this amendment addresses a serious change, because one would be saying to the court that intent did not matter. Reasonableness would be addressed first, but intent must not be taken into account. As I said earlier, having heard the Minister’s argument last week about dispatch with intent, I am prepared to consider that as perhaps an appropriate approach. However, if I am to accept that, I must be assured that the Bill will be so watertight and clear in its construction that the decisions by the High Court would be appropriate. In this clause we are imposing on the High Court a difficult task; in fact, throughout this part of the Bill, courts are perhaps asked to do things that one would not normally ask. It has been said previously how wonderful they all are, but it is not for Parliament to give them impossible tasks. I hear exactly what the Minister said; she thinks, first, that there should be a general test of reasonableness—there must be a proportionate response. However, the tenor of her argument is that that provision overrides some individual rights. The noble Baroness says no, but she was arguing that there must be a reasonable and proportionate response to prevent the further commission of an offence or to prevent any offence, because some people have not been shown to have committed any offence in the past, and therefore it is proportionate to say that one will ignore intent. That may be an argument that we ultimately accept, and I thank my noble friend Lady Carnegy for her intervention about agitation, which was an important matter. Between now and Report, one needs to look at whether the current definition in subsections (2)(b) and (3)(b) is satisfactory. I may not want to return to Amendments Nos. 42 and 45, but I am still concerned about Amendments Nos. 43 and 46, which specifically address the other aspect of a person’s mental state at the time. The Minister very carefully said to the Committee that reference to mental state is a reference to intention; but later, in a further explanation, she expanded that by saying that it also covers knowledge and recklessness. However, that is not apparent at the moment. Because this is new in construct and it is a civil burden of proof, I should like to look at it carefully between now and Report. I should certainly also be grateful if I could discuss it at a meeting with the noble Baroness. Because this issue has not been thought appropriate for consultation—perhaps for very good reasons—it is right that I talk to the organisations that represent at their core those with learning difficulties or mental health problems so that they can be reassured. I give way to the noble Lord, Lord Thomas.