Criminal Justice and Immigration Bill

My Lords, I and several other noble Lords have notified our intention to oppose the Question that Clause 148 should stand part of the Bill. However, as the noble Lord, Lord Thomas of Gresford, has introduced his amendments with some general reflections on violent offender orders, this seems an appropriate moment for me to make my contribution. That will save the Committee from the awful threat of having two debates on the same issue. I, too, have been in receipt of a letter from the noble Lord, Lord West of Spithead, in which he has set out seven separate points that he intends to convert into amendments to the Bill at the Report stage. When the noble Lord replies, I will be most interested to know to what extent the list is now set in stone and to what extent it is representative of continuous thinking by the Home Office about the issues that are addressed. I hope it is the latter. Although it goes some way towards meeting some of our criticisms, it in no way meets all of them. It is probably worth putting these orders in the context of what the law is at the moment. As I understand it, the law is divided between those who are convicted of violent offences with a maximum penalty of less than 10 years and those who are convicted of a serious specified offence with a maximum penalty of 10 years or more. In the case of those convicted of violent offences with a maximum penalty of less than 10 years, they must be given an extended sentence which comprises the appropriate custodial sentence for their offence and an extended period. They will be eligible to apply to the parole board for release at the half-way point of a custodial term and, if refused, released automatically at the end of the custodial period. Once released, offenders are subject to licence supervision for an extended period of up to eight years for sexual offences and five years for violent offences. Those convicted of a serious specified offence with a maximum penalty of 10 years or more must be given an indefinite sentence of imprisonment for public protection. They will be given a minimum term during which they will not be able to apply for release. After that point they will not be released until the parole board considers that it is safe to do so. Its overriding concern when making the release decision is, of course, public protection. Once released, they will be on licence for a minimum of 10 years. After that point, they may apply again to the parole board for the termination of their licence. This sentence is similar to life imprisonment, although it differs in that the offender will not necessarily be on licence for life. So where does the violent offender order fit in? I would say in very rare cases. There seem to be three sets of circumstances in which a violent offender order might be relevant: where someone is identified by the process of analysing risk as capable of a violent offence but who has not received a public protection sentence; or someone who was not regarded as sufficiently dangerous at the time of conviction; or because the offence was committed before the introduction of the new offences that I have just outlined in April 2005. I would be most interested to know from the Minister, in general terms, how many people he thinks these orders might affect. As the noble Lord, Lord Thomas of Gresford, has said, these orders are classifiable as preventive civil measures; they are there to protect the public from the risk of future serious crime. They are civil orders, but their breach would be a criminal offence. As the noble Lord, Lord Thomas of Gresford, rightly says, they are in the tradition of ASBOs, non-molestation orders, control orders and serious crime prevention orders. The biggest single problem with the orders is that they are simply, under the terms of Clause 148, not properly targeted. They are not targeted at a particular category of person, as the noble Lord, Lord Thomas, has said, nor is there any indication in the Bill of the types of prohibitions, restrictions or conditions that would apply to someone under an order. That is in stark contrast to the control order system, for example, where the kinds of restrictions that are capable of being placed on an individual are set out in considerable detail in the Bill. I note with interest that point seven in the Minister’s letter says: "““We will set out on the face of the Bill an indicative list of conditions which could be imposed as part of an Order or an interim Order””." I take that to mean that it is the Government’s intention to bring forward an amendment on Report that seeks to meet at least some of the criticisms I have just made. That is crucial to us. I would find it difficult to see how the Opposition could contemplate supporting measures of this sort unless it was clear in the Bill what types of restraint a particular individual would face. There is a second issue: the question of criminal due process. I believe that the Government set great store by a case called McCann concerning ASBOs, in which the Appellate Committee of your Lordships’ House decided that ASBOs did not attract the full protection of Article 6 of the European Convention on Human Rights, in the sense that they did not give rise to the protections normally afforded to a defendant in a criminal court. However, they concluded that the normal civil protections are available. I suggest to the Minister that it would be hazardous for the Government to place too much weight on that case with regard to violent offender orders. In my view, these orders raise very different considerations from ASBOs. In particular, to obtain a violent offender order there already has to have been criminal conduct. That is not the case for ASBOs. Accordingly, there must be a good chance that violent offender orders will attract all the fair-trial guarantees. I would like to see that reflected in the Bill. In any event, whether violent offender orders attract the civil protections or the criminal protections, the Appellate Committee concluded that the appropriate test, the burden of proof, should be ““beyond reasonable doubt””. Again, although that is already the law, I would be much happier if that were reflected in the Bill. The way in which the hearings on violent offender orders are conducted also gives rise—on my part, at any rate—to some concern. I understand that the proceedings will be on the basis of what I still call affidavit evidence, although I think it has a more modern description now. Where you are restricting the freedom of the individual, evidence should be capable of being tested by cross-examination. I urge the Minister to think hard about that when he brings forward his amendments on Report. It may not be appropriate to put that in an amendment, but I would welcome an undertaking from him that the rules of procedure in the courts will be adapted to ensure that that happens. One of the things we have learnt from ASBOs—and of course a high percentage of them are breached—is that the broader the order, the more likely the breach. I therefore urge the Minister, if we end up with these orders in the Bill when it finally becomes law, to cast the legislation in such a way that the orders are well targeted, not only because I think that is right in terms of the liberty of the individual but because they will be much more successful in achieving their objective.