Criminal Justice and Immigration Bill

Just to reassure the noble Earl, Lord Onslow, let me say that it takes a great deal to disturb my sleep, so this is not perhaps something that particularly worries me. However, risk of violence worries a number of people in our society. As I have said, perceptions are very important. As regards how this is dealt with, the police are the lead agencies. They liaise with probation and prison services, local authorities, if necessary, and other agencies. However, the courts make the judgments. Magistrates are the risk assessors. They will be used to making similar judgments, because they make them already in respect of ASBOs and sexual offences prevention orders. As I have said a number of times, I am confident that our magistrates can properly make the right and sensible decisions for this limited number of orders—our assessment is about 100 a year—for people who are particularly dangerous and are a real risk, which is why they are brought before the courts to be looked at in that way. The noble Baroness, Lady Stern, asked how risk is assessed. We use the offender assessment system, Risk Matrix 2000. I agree that that is not by any means perfect, but, within the courts, on the basis of all the evidence, a sensible risk assessment can be made. I have faith in those people not to apply this in a draconian and rather stupid way. They will do it sensibly and it is best to let people do that. In the military, we call it ““mission command””; we say roughly what we want and we let people get on and do it. I believe that they will be able to do that. Violent offender orders are civil orders designed to protect the public from fear of violent harm. They are preventive and not punitive. I know that there is some debate about that, but that is how I see them. The conditions that we put down will show that. They seek to manage risk, not to further punish the individual. They are not just to look after people’s safety or public safety, but to look after the individual involved, because if he gets it wrong he will end up back in prison. It gives him a chance perhaps to take the right actions to prevent that from happening. Put simply, they are civil orders and the civil standard of proof should apply. I am sure that noble Lords are only too aware that the issue of the standard of proof is not simple. There have already been numerous debates on whether the criminal standard should apply to other civil orders, the most recent of which was in relation to serious crime prevention orders. However, this issue has also been considered in detail in relation to anti-social behaviour orders and sexual offences prevention orders. When claiming that the criminal standard should apply to violent offender orders, people frequently refer to the McCann ruling in the case of anti-social behaviour orders. In fact, the ruling concluded that ASBOs were civil orders but perhaps most significantly that the civil standard of proof is not a static one and should be used flexibly, depending on the seriousness of the allegations made against the individual. Where serious allegations are involved, such as those that the courts will be considering when making these violent offender orders, the applicable standard will be virtually indistinguishable from the criminal standard of ““beyond reasonable doubt””—in effect, a quasi-criminal standard. However, the criminal standard of proof has never been set out in legislation for the simple reason that it would be undesirable and potentially confusing to apply a criminal standard to a civil matter in legislation. This interpretation has also been applied to sexual offences prevention orders and serious crime prevention orders. In the latter case, we took it one step further and chose to specify the civil standard in the Bill, although we expect that in practice the courts will also adopt the quasi-criminal standard. Violent offender orders as currently provided for allow the courts to adopt the same approach as that for anti-social behaviour orders, sexual offences prevention orders and serious crime prevention orders. This means that in practice courts apply the quasi-criminal standard in relation to an individual’s past behaviour and require that there is sufficiently robust evidence that an individual has acted in a way that would warrant a violent offender order. As I have said, consideration of whether an order is actually deemed necessary in the present day would be a court judgment, and we intend to make this very clear in guidance. Parliament has already accepted that the civil standard of proof can apply for other civil orders, as it can be applied flexibly. I urge the Committee to accept that the same reasoning should apply to violent offender orders. It is absolutely essential that violent offender orders are applied sensibly and appropriately while protecting the public from the risk of serious violent harm. On this basis, I understand the recommendation that there should be a full adversarial hearing before a violent offender order is made in respect of an individual. Moreover, I agree completely that an individual in respect of whom a violent offender order is being made should be given the opportunity to be heard during the proceedings. However, I have grave concerns about giving the same individual the opportunity to cross-examine the witnesses, and I shall set out why. Violent offender orders are intended for the most dangerous offenders—only around 100 a year. For a violent offender order to be considered necessary, an individual must have demonstrated that they pose a risk of serious violent harm to an individual member of the public or the wider public. It is extremely likely that any witness to the existence of such a risk would object to being cross-examined, which may result in individuals being unwilling to give evidence of any sort. I am sure that that could easily be the case. A further concern is that the witness may well be the same person who is being intimidated and harassed and is in danger of serious violent harm. It would therefore be a highly traumatic and frightening experience for that individual to be cross-examined and I do not think that it would be a good idea. However, I agree that the individual in respect of whom an application is being made should be given the opportunity to be heard at the point of application alongside the applicant, and I will bring forward an amendment on Report to address this. I therefore ask the noble Earl to withdraw his amendment.