Serious Crime Bill [Lords]

To put beyond reasonable doubt what I am saying, the civil court, in making its judgment about such matters, should take into account the case of McCann in the House of Lords. I am not a lawyer, but every time I raise the issue everybody says to me, ““Well you ought to read the House of Lords judgment on this.”” That is what I am told by barristers and lawyers everywhere—““Read the House of Lords judgment. The House of Lords is the highest court in the land. It will inform the decisions that courts make.”” That is exactly what I am doing. I am saying that the courts of the land—the civil courts in this case—should apply the case of McCann in determining what standard of proof they should apply when considering serious crime prevention orders. No doubt much more eminent lawyers than me—since I am not one anyway—use the words ““virtually indistinguishable””. If those words can be used by the House of Lords, which is the highest court of the land, it seems appropriate that I, too, should use the word ““virtually””, which is what I have done. If it is the intention of the hon. Member for Taunton to make the applicable standard ““beyond reasonable doubt””, the House of Lords has already done that, so the amendment is unnecessary and I hope that he will feel able to withdraw it. Amendments Nos. 75 and 76 appear to go to the same end, so I hope that the hon. Member for Hornchurch (James Brokenshire) will not feel the need to press them. On amendments Nos. 65 and 66, let me make clear one important point. The Government are dedicated to ensuring that those who commit serious crimes are quickly detected, effectively brought to trial and punished appropriately. However, amendments Nos. 65 and 66 misunderstand the role that the orders can play. There will not be a direct choice for the Director of Public Prosecutions—or any of the other applicant authorities, for that matter—between pursuing a prosecution, which is punitive, and seeking an order, which is preventive. Orders can be sought independently of, before, alongside or after a prosecution. They will be sought at whatever point in time there is a harm that can be best and most effectively prevented by the imposition of reasonable and proportionate conditions. That does not affect the primacy of prosecution for those who have committed serious crimes. Indeed, one of the reasons why we have chosen the applicant authorities that we have, in this part of the Bill, is precisely because they are the best placed to make an assessment of the most appropriate course of action in any particular set of circumstances. For those reasons, I must resist the amendments. Amendments Nos. 77 and 78 seek to amend the provision in clause 1(3), and the similar provision for orders in the Crown Court in clause 19, in order to change the word ““appropriate”” to the term ““necessary and proportionate””. The provisions set out the test that the court must apply when deciding on the terms to include in an order. Placing a requirement on the court to act proportionately is unnecessary because it simply reflects a principle by which the court will already abide in making the orders. There is no need to tell the High Court in legislation to be proportionate. As for a requirement for the terms of an order to be necessary, we believe that we have set the standard in clause 1(3), and later in clause 19(5), at the right level. That is because we have struck the right balance in requiring the test to be sufficiently tough to ensure that an order will be proportionate but not so tough that it can never be met. For those reasons, I am afraid that I must resist the amendments. The hon. Member for Taunton (Mr. Browne) has tabled amendments Nos. 67 and 72. They cover subjects that we debated at some length in Committee, and I have not changed my mind since that debate. We have provided a schedule to show the large majority of the offences in relation to which the use of these orders would be appropriate. Also, within the framework of the schedule, we have provided a discretion for the High Court—or, as the case may be, the Crown Court—to treat an offence as serious if, in the circumstances of the case before it, which we cannot know or foresee, it considers the offence to be serious enough to be treated as if it were specified in the schedule. It is important that we do not fetter the discretion of the courts to adapt to the constant changes around them by looking at the context of an offence and making a fully informed and reasoned decision as to whether it would be appropriate for that offence to attract an order. Let me give the House an example of why this discretion is necessary. We do not consider it appropriate to include offences against the person, such as assault or murder, in the schedule because they are not suitable for attracting an order in all circumstances. So, I am sure that we can all agree that, when a person assaults another in a simple fight in a pub, these orders would be completely inappropriate. However, when someone has routinely used violence to intimidate and maintain a reign of terror in an area, he might be an appropriate candidate for an order, after serving his sentence, if there is evidence that an order would prevent such crimes from being committed again. It is the circumstances in which these types of offence are committed that determine whether or not an order is appropriate. The person best placed to make that decision will be the judge sitting in the High Court. On amendments Nos. 73 and 74, I would like to point out that, in drafting the Bill, we wanted to ensure that any actions of the proposed subject which were reasonable in the circumstances could not be used as the basis for an SCPO. So, for example, there is no doubt that an employee of PC World facilitates serious crime when he sells Mr. X a computer which Mr. X later uses to commit a massive fraud. Mr. X could not commit the crime without that computer. However, to say that the employee should be able to be the subject of an SCPO for those actions would be ludicrous. As a result, we have clause 4(2)(a) and 4(3)(a), which mean that any action which the proposed subject can show is reasonable cannot form the basis for an SCPO. The intent behind the amendments seems to be to force the applicant authority instead to have to show that the actions were unreasonable.