Serious Crime Bill [HL]

There are some internal inconsistencies in these amendments, but I took it that this amendment and the earlier one were probing, so maybe the inconsistencies can be viewed in that context. The amendments reflect a fundamental misunderstanding of the purposes behind the Bill and how it will work in practice. Nothing proposed in legislation alters the role of the applicant authorities in deciding whether prosecution should be sought against an individual. The Government are committed to ensuring that those who commit serious crimes are caught and punished, and it is very clear from discussing these matters with the Serious Organised Crime Agency that it shares that view. Part of its business is to take out and restrict the activity of serious criminals and make it more difficult for them to perpetrate their crimes. Nothing in these orders is to do with punishment. The purpose, as I have tried to make clear in earlier debates, is preventative, and Amendments Nos. 3 and 5 would mean that, before being able to consider an order to prevent future harm to the public, the applicant authorities would have to seek prosecutions against the persons concerned for every crime they had ever committed. Your Lordships will know that in making decisions the prosecution may often decide that a particular crime could be prosecuted but in the public interest it would not be appropriate under the circumstances. This judgment process remains unchanged by this Bill. However, irrespective of whether a prosecution has been or will be sought, the Bill leaves it open to the applicant authority to seek to demonstrate to the High Court that a person has been involved in serious crime and that the proposed terms of an order will prevent, restrict or disrupt involvement in serious crime. One knows that on occasion some very complex cases take a very long time to come to court, and it may be necessary and appropriate for the agency to apply to the court in the interim for orders to restrict the activity that the criminal could participate in while that time frame prevails. The decision whether to prosecute an individual and the decision whether to apply for an order to prevent harm to the public are two completely separate issues based on different criteria. For that reason it would be inappropriate to restrict the ability of the High Court to impose a reasonable and proportionate means of preventing harm simply because a prosecution for an offence has not been sought for a legitimate reason. I have some sympathy with the intention behind Amendment No. 9. It sets out expressly that the making of an order is without prejudice to any criminal investigation and that, once an order has been made, the investigation of the subject of an order must continue to be pursued. Appropriate prosecution of the people who have committed serious crimes will always be desirable, and these orders do not rule out that possibility. As I said, the orders will be preventive and will be used as part of the criminal lifetime management of those engaged in serious crime. They may prevent harm while investigations are ongoing or they may help to stop a person re-engaging in serious crime after they have been convicted and have served a sentence. At Second Reading, the noble Lord, Lord Dear, gave us a very graphic example of some of those cases and of how long they can take to come to fruition and go before the courts. The making of an order will not rule out the possibility of a criminal investigation continuing but we do not believe that there is any need to say so expressly, as in paragraph (a) of the amendment. As for paragraph (b), we do not think that it is appropriate to require law enforcement to continue to pursue an investigation. We believe that it is more appropriate to give law enforcement officials discretion to manage each case based on its facts. For those reasons, I hope that the noble Lord will see that there is great sense in approaching this matter in the way that I have just described.