My Lords, I intend to speak also to other amendments in my name, namely Amendments 26, 27 and 28. Amendment 25 is directed at paragraph 2(2) of Schedule 1. It seeks to replace “involved in” with “convicted of”, so that new Section 1(1A) would read:
“The appropriate court in Scotland may make an order if … it is satisfied that a person has been convicted of serious crime (whether in Scotland or elsewhere): and … it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime is Scotland”.
I resist the temptation to enter the debate on whether “think” means “believe” by noticing that the “satisfied” appears in this provision.
New Section 1(5) of the Serious Crime Act 2007, which is also to be found on page 55 of the Bill, will provide that the term “appropriate court” means in Scotland the Court of Session or sheriff. As many of your Lordships will be aware, the Court of Session is the supreme civil court within Scotland. It handles civil business as opposed to handling criminal proceedings. As far as my understanding and experience go, it is not a normal part of its judicial role to make a formal ruling that an individual has committed a serious offence in Scotland. The prosecution and conviction of a person on a charge of serious crime has to take
place in a criminal court, either the High Court of Justiciary or a sheriff sitting in exercise of the criminal jurisdiction that a sheriff court has. That distinction is applicable to all aspects of new Section 2A, which is at the foot of page 55, which states:
“For the purposes of this Part, a person has been involved in serious crime in Scotland if he … has committed a serious offence in Scotland; … has facilitated the commission by another person of a serious offence in Scotland; or … has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in Scotland”.
These are all issues which, to my mind, involve alleged criminality.
If a Court of Session judge sitting in a civil court were to be involved as an “appropriate court” for the purposes of these provisions, a sheriff sitting in the sheriff court as an “appropriate court” would reasonably also be expected to be assessed as exercising the sheriff court’s civil jurisdiction. I would be grateful if the Minister could confirm that those inferences have been correctly drawn.
Thus, the terms of the additional provisions set out on this page of the Bill would allow certain judges sitting in the civil courts in Scotland to impose a serious crime prevention order in Scotland on a person who had not been convicted in criminal proceedings of any serious crime committed in Scotland or, for that matter, elsewhere.
The Law Society of Scotland has been interested in this matter for some time. Having discussed the matter with it and seen the representations that it made in response to some consultations carried out by the Scottish Ministers, I submit that the provisions relating to the roles of the “appropriate court” are inadequate. It is suggested that the judge in such a court has to be satisfied that the person in respect of whom the order is sought has been involved in serious crime. That, they maintain, should be in the criminal court.
In addition to that concern, the position of the Law Society of Scotland in this matter is that the making of a serious crime prevention order in Scotland should be based on a pre-existing conviction of a serious crime, not just on allegations that fall to be considered once the matter comes before a judge. That position is based on the consequences for a person if they are made subject to a serious crime protection order. I do not intend to go into this in huge detail, but it is perfectly obvious—looking at the provisions of the Serious Crime Act 2007—that such an order has considerable implications for a person on whom it is placed. That means that any debate in court in proceedings leading up to the making of such an order has to be such that will ensure that all aspects of the allegations made against the person who is being threatened with the imposition of an order, and equally any explanations from the person concerned, are brought before the court for its consideration.
Obviously, this is based on provisions that have applied in England for some years. The background to it, I understand, is that Scottish Ministers issued a consultation paper in September 2013 entitled Serious Crime Prevention Orders in Scotland. The consultation paper explained that Ministers wanted to consider the effectiveness of serious crime prevention orders elsewhere in the United Kingdom as part of their policy for
disrupting the activities of serious organised crime. As part of that policy, they sought to tighten the existing legislation and introduce new legislation in Scotland to make it harder for serious crime groups to operate. The Law Society of Scotland launched a response to the consultation paper. Among a number of submissions it made was one saying that a serious crime prevention order should only be made by a court in Scotland following a conviction for an offence of the person in question falling within one or a number of serious categories of crime.
After the Scottish Ministers received the various responses to their consultation paper, they announced that they would give further consideration to the options available for introducing serious crime prevention orders in Scotland. The route that the Scottish Ministers have followed has involved their requesting the United Kingdom Government to legislate to extend the provisions of Part 1 of the Serious Crime Act 2007 to Scotland. The Scottish Ministers, however, have never fully explained in public their reasons for rejecting the Law Society’s submission that no order should be granted unless the person to whom it relates has been convicted of a serious offence. The Law Society remains of the view that no order should be made unless the Lord Advocate or the police force have sought it in respect of a person to whom a conviction has already adhered. Given the restrictive nature of such orders, the Law Society remains of the view that it is unreasonable to impose such an order when an alleged offence remains unproven.
The Law Society understands that in England there have been no cases in which orders have been pronounced without a conviction against the subject of the order. They are referred to as stand-alone orders. It is fully accepted that there are not likely to be many of them were the provisions to be applied in Scotland, but if they were, in the Law Society’s opinion, they would clearly amount to an unreasonable restriction in the absence of a suitable foundation for them.
I therefore hope that the Minister will be able to accept Amendment 25 as representing the views of a very important body within the justice system in Scotland, which finds some support when one looks at the terms of Schedule 1 in its present form. Amendments 26 to 28 are there because of the content of page 55 of the Bill. If Amendment 25 is accepted, they would be of relevance. If it is refused, they become superfluous as a consequence of that decision.
In conclusion, I hope that the Minister can accept the amendments. If he can, that will be very welcome; equally, if he is unable to do so, it would be helpful if he could explain the approach that the Government have adopted to the various points raised.
At this stage, it is right that I should publicly recognise that, following Committee on the Bill, I had a very useful meeting with the noble Lord, Lord Taylor of Holbeach, for which I was very grateful, as was the Law Society when it was advised what had taken place. I beg to move.
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