Serious Crime Bill [HL]

My Lords, we discussed these amendments in Committee and I do not want to tire the House by repeating everything that I said then. However, I appreciate why the noble Baroness, Lady Anelay, has tabled them again, and I hope that my earlier explanations of the practical process for dealing with these orders will have reassured her as to our intention. The noble Baroness asked about deputy High Court judges. I should declare myself both as a recorder and as being ticketed to sit as a deputy High Court judge. We have worked hard with the judiciary and the Judicial Studies Board throughout the process of implementing the legislation to try to assess the training requirements for ensuring that there is sufficient capacity in the High Court to deal with the limited number of orders that will be sought. The noble Baroness will know that deputies are used judiciously to meet need. The noble Baroness spoke about consistency. High Court judges will have regard to one another’s decisions and to whether offences should be treated as being sufficiently serious as to fall within Schedule 1. There will also be opportunities for appeals. The Court of Appeal’s decisions will be binding on the High Court and Crown Court judges. However, whether an offence that is not in Schedule 1 should attract an SCPO is likely to depend on the circumstances of a particular case. We do not intend to create an order that can be used against all offenders. Orders will target those who are engaged in serious criminal behaviour that causes real harm to people. That is why the noble Baroness was right to remind the House when we were talking about Amendment No. 1 that it is expected that about 30 of these orders will be made per year. The discretion on conviction of the High Court or the Crown Court to treat offences other than those that appear in Schedule 1 as serious offences is important. It is necessary to ensure that the courts can impose an order where it is appropriate and where the order will prevent harm to the public. We have sought to include in Schedule 1 a list that sets out the majority of offences in which we believe serious criminals engage. However—I know that the noble Lord, Lord Dear, will have had great experience of this—it is very difficult to constrain what serious criminals will choose to do from time to time. They constantly look to adapt their operations to avoid innovative approaches by law enforcement agencies when they become aware of them. Senior law enforcement figures have described this to me as““the criminal market””. As soon as law enforcement agencies are able to make involvement in an area of the market too high risk, serious criminals do exactly what a good businessman would do and diversify. With that in mind, we think that it is not a good idea to restrict the ability of our senior judiciary to identify and deal with serious criminal behaviour reasonably and within the bounds of convention rights. The provision does not create uncertainty. A framework is provided by virtue of the way in which Clause 2(2) is structured. It provides clearly that it will be for the court to determine whether a serious offence has been committed and that, for it to doso, the offence must be specified, or fall within a description specified, in Part 1 of Schedule 1, or must be, as Clause 2(2)(b) states, "““one which, in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified””." This is not saying to the court, ““You can go off ona frolic of your own””. This is the framework, andthe court would have to justify why it came to the conclusion that the offence should, in the particular circumstances of the case, be so specified, bearing in mind the nature and the mischief that the order seeks to address. It would be inappropriate to include offences such as assault in Schedule 1, as we do not want these orders to be available against all forms of assault. However, when, for example, the assault is being used to extort money, as a part of a pattern of serious criminal behaviour, we should be able to use these orders. The schedule provides certainty as to the majority of the offences to which we intend these orders to apply. It also provides the guidance necessary for the courts in exercising their discretion; they can treat an offence as serious for the purposes of the orders only if they consider, in the circumstances of the case, that it is sufficiently serious to be treated as if it were specified in the schedule. The offences in the schedule provide the court with guidance as to what is ““sufficiently serious””. We believe that the approach of the schedule in providing a significant element of certainty and guidance, teamed with a limited discretion, which will be exercised by the senior judiciary, provides an appropriate and effective means of defining what constitutes a serious offence for the purposes of these orders. As a result, we resist these amendments. I hope that I have been able to say enough to satisfy noble Lords that the concern that they have, properly, about how the powers will be used is not actually based on sound evidence. We believe that the powers will be proportionate and appropriately targeted and honed by the court in a way that will enable us to see justice done both for the individual and for those upstanding members of the community who are badly affected by serious crime.