Serious Crime Bill [HL]

My Lords, I welcome the Minister back to her place on the Front Bench after what I understand was her recent bereavement. Certainly the government Front Bench is much the weaker without her. I declare an interest as the chair of Justice, an organisation which has submitted a brief for the Second Reading. It is an important declaration because, although I do not speak on behalf of Justice, it is in large part because of my position in that organisation that I have decided to speak today. What we have feared for a long time is now happening. Like the noble and learned Lord, Lord Lloyd of Berwick, I shall speak only on Part 1 of the Bill. The noble and learned Lord made an extraordinary speech, virtually every single word of which I agree with. We are now facing the fact that the Government’s use of civil penalties as a substitute for criminal convictions will rise to an unacceptable level under the Bill. We started with ASBOs in the Crime and Disorder Act 1988. An argument can be made for ASBOs; in effect, they are similar to civil injunctions for harassment or nuisance, which victims could have obtained but they were deterred by costs and the possibility of revenge attacks by the person against whom they sought the injunction. As my noble friend Lord Thomas of Gresford said, in practice, ASBOs are not working nearly as well as originally expected. The Government moved on from ASBOs to control orders under the Prevention of Terrorism Act 2005. We on these Benches accepted, with great reluctance, control orders in principle, although we did not accept the methods by which they are imposed. We accepted them because the aims of modern terrorists include the mass murder of ordinary people, and we see that as a unique case. Part 1 pushes the boundaries of civil penalties further still—far too far. Under Clause 1, a serious crime prevention order can be made if the court is satisfied that, "““a person has been involved in serious crime””," and the court has reasonable grounds to believe that the order will disrupt future involvement of that person in further serious crime. Does that mean that the person in question must have been previously convicted of a serious crime? Plainly not. Under Clause 2(1)(c), it is enough that the person, "““has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed)””." The clause does not even require an intention to facilitate the crime. The civil standard of proof applies for an SCPO. So what is a ““serious crime””, specified in Schedule 1? As the noble Baroness, Lady Anelay, pointed out, armed robbery is not a specified serious offence, but Schedule 1 includes, "““fishing for salmon, trout or freshwater fish with prohibited implements””." It also includes such desperate crimes as, "““making, importing or distributing an illicit recording””." That is, of course, a dishonest way of making money but hardly a threat to the public; indeed, many members of the public are all too eager to benefit from that offence. There is also a catch-all provision that allows the court to treat any offence as serious if, in the circumstances of the case, it considers it, "““to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified””." What can be restricted by the order? Under Clause 5, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out, absolutely anything can be restricted. It includes, just as examples, the persons with whom the subject communicates or associates, the means by which he does so and the premises to which the subject has access. Most surprisingly of all, it includes the place where the subject may live. The subject may be forced into internal exile. It restricts travel, not just abroad but within the United Kingdom. The subject may be required to answer questions from law enforcement officers on any subject. Although that requirement is, in general, subject to the exclusion of answering questions that involve self-incrimination, the exclusion does not apply in one particular case: where officers are investigating a possible breach of an SCPO. The subject of that order must reply, even if the replies would incriminate him in the breach of the order. A breach carries a penalty of up to five years. On top of all that, it is far from certain that SCPOs will be effective. As I mentioned, the civil standard of proof applies. I entirely accept, as the noble Baroness pointed out in her letter to the Constitution Committee, that the civil standard is flexible and not always just the simple balance of probabilities. That is clear, for example, from the decision of the Appellate Committee of your Lordships’ House in the McCann case of 2003. As the Law Society brief points out, in ASBO cases the courts now apply a standard close to the criminal standard. If the same principle applies to SCPOs, however, as clearly it will, their use will be limited to cases where a criminal prosecution would be likely to succeed and in those cases should be used. I know it is not the intention of the Government, but there is an inevitable danger that the prosecution, faced with a case where a criminal conviction is not absolutely certain, will seek a restrictive SCPO as an alternative because there will be a slightly lower standard of proof, no jury and the ability to rely on hearsay evidence. Even if SCPOs might work, would they be justified? They impose restrictions on people because of what they may do in the future not what they have done. I recognise that that might be legitimate as part of the sentencing process; that is to say, where there has been sentencing following the commission of a crime. That is part of the reason for imposing longer sentences for re-offenders. But here we have a power to impose restrictions of any kind on people who have not been found guilty of any relevant crime, on the basis of a belief—which, admittedly, must be a reasonable belief—that that person is likely to be involved in future offences which the court considers serious or which are on the list of serious offences. When, in a prosecution, one is looking at the possibility of future conduct, there can never be anything approaching certainty about what that conduct might be. It is not a case of saying, ““on the balance of probabilities””; it just has to be a reasonable suspicion. What are we doing here? Part 1 is the most authoritarian legislation I have ever seen promulgated in the United Kingdom in peacetime. It is a law worthy of an authoritarian state such as Belarus; it is not worthy of the United Kingdom. Restrictions on liberty as extensive as those possible under the Bill should be applied only on the basis of a criminal conviction. SCPOs are very similar to control orders, the only difference being that they are made by a judge rather than by the Home Secretary and are then judicially reviewed by judges. Control orders were, as I said, introduced to inhibit terrorist mass murder. There is no justification for extending them to the entire criminal justice system, which is what the Bill will do. The Government say that all this is okay because SCPOs will be made by judges who will act reasonably; they will be aware of the impact of the Human Rights Act and will apply it. That is true, but it is not an answer. We should not create laws which enlarge the scope for injustice and rely on the judiciary to apply them with moderation. What we want are just laws, not the just application of unjust laws. That would be contrary to the rule of law. Part 1 is, I believe, incompatible with the basic principles of the criminal justice system, which have existed in this country for centuries, and it is incompatible with the rule of law. I would like to think that the Minister, who had a very distinguished career at the Bar, is as aware as I am of the fundamental defects of Part 1. It should be removed from the Bill lock, stock and barrel.