Serious Crime Bill [HL]

My Lords, I realise that we did not go into the detail of this amendment when we discussed this clause in Committee, for which I apologise. I also apologise that the issue seems to have slipped through the net among all the other issues that the noble Baroness and I have tried to address. Perhaps I may take the opportunity to explain why such an amendment would be unwelcome. The clause is drafted with separate references to the intentions of the subject and, "““any other aspect of his mental state””." For the reasons I set out in some detail in Committee, we do not want the applicant authorities for these orders to have to prove that the proposed subject has a particular mental state such as intention when deciding whether they have acted in a way that has facilitated or was likely to facilitate serious crime. Clause 1 expressly sets out that these orders can be granted only where they are preventative of serious crime. The terms of the order must be reasonable and proportionate, and in this context there will be instances when the need to prevent considerable harm will mean that an order is appropriate where it would be almost impossible to show an element of intention or other mental state such as recklessness. The effect of the amendments would be to remove the reference to other aspects of his mental state. If the court is to ignore the proposed subject’s intentions at the time, it would seem odd that it should be ableto take into account those elements of his mentalstate which would fall outside ““intention”” such as recklessness or knowledge. Further, while the court will ignore the mental state of the proposed subject, it will also ignore any action which the proposed subject can show was reasonable. As I outlined earlier when discussing the process for the making of these orders, the court will make an order only where the applicant authority has proved that the proposed subject has been involved in serious crime, where the applicant can convince the High Court that the order is necessary to prevent, restrict or disrupt further such involvement, and where the terms of the order are reasonable and proportionate. Within this context, we do not think it would be appropriate for the court to be able to take into account, for example, whether the proposed subject was reckless as to their involvement in serious crime. We must, therefore, resist the amendments. However, I am grateful to the noble Baroness for her patience because it has given me an opportunity to explain why her concern here is not merited and why her amendments would undermine what I know both she and I seek to achieve.