Serious Crime Bill [HL]

I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, for their helpful indications on how they propose to deal with this matter. Before dealing with the specific amendments, it may be helpful if I explain why we have decided to deal with the mental health element and the mental element as we have. That may elucidate the position in a way which I hope the noble Baroness and the noble Lord will find helpful. The Bill is drafted as it is—with no mental element included in the court's consideration of whether a person has facilitated serious crime or has acted in a way that was likely to facilitate it—for this reason. It is expressly stated in Clause 1 that the orders will be granted by the court only when they will prevent the harm caused by serious crime. That prevention willbe occasioned by terms that are reasonable and proportionate. In that context, there will be instances when the need to prevent this considerable harm will mean that an order would be appropriate where it would be almost impossible to show the suggested element of intention or recklessness; for example, where a person who owns a string of lodging houses that have been found on several occasions to contain individualswho have been trafficked or smuggled, with the accommodation paid for by others. A first option for law enforcement might be to approach the owner and make him aware of the problem. But when it continued to happen he could potentially successfully argue that he had no knowledge that these people were being trafficked or smuggled, and so could not have the requisite element of intention. Similarly, with a large number of people coming and going, he could argue that he had neither the ability nor the time to check closely each person. In such a situation it would be difficult to prove an element of recklessness if the person could argue that he had no means of checking whether the person was or was not an illegal immigrant. Therefore, an order which required the owner to provide law enforcement for a limited period with a list of those staying in the houses, or where people’s stay was paid for by a third party, would be a reasonable and proportionate response to prevent those houses being used as stepping stones on the way to people trafficking. It is sad to reflect that there are those who simply do not care for what purpose their property or services are used. In those circumstances it must be right to assist the prevention of crime by imposing on them a reasonable and proportionate contribution to making sure that these offences are not committed again. Secondly, it would be inappropriate to import into a civil order concepts of intention and recklessness, which are essentially criminal in nature. Finally, and perhaps most importantly, Amendments Nos. 42 and 45 in particular, but also all the other amendments in the grouping, should be looked at in the context of Clause 4(2)(a) and (3)(a), which the Committee debated on the previous occasion. They provide that any action which the potential subject of the order can show was reasonable cannot constitute either facilitating, or acting in a way which was likely to facilitate, serious crime for the purposes of this legislation. This provides a very strong safeguard to ensure that those who act reasonably can never be the subject of an order. The noble Baroness properly raises the issue of those who may lack capacity and may not be able to understand. That is why we come back to the reasonableness issue. I am sure that these issues would be raised. If the authority bringing the order did not have the sense to do that, I am relatively confident that the judiciary would. We need to think about how these orders would be used. There is a high threshold for the authority to meet. We and they would prefer to work with individuals on a consensual basis because many good citizens, once they are apprised of a difficulty, are more than happy to respond in a wholly proper way. For those reasons we do not think that the changes that the noble Baroness seeks are necessary. Because we did not think that they were necessary we did not consult the mental health charities. The noble Baroness will know that if the measure did have an impact we would have done so. We hope that the noble Lord and the noble Baroness will be satisfied and agree with us that the way in which the measure is structured provides the safeguards that both they and we wish to see.