Clause
19
Discharge
of
orders
Question
proposed, That the clause stand part of the
Bill.
Mr.
Hogg:
I shall make a number of specific points. Once
again, we see an imbalance between the powers of the relevant applicant
authority and the powers of the person who is the subject of the order.
In the case of the relevant authority, there is no need for there to be
any change of circumstance, whereas in the case of the
subject of the order there is. I rather doubt whether the applicant
authority will be making any applications to discharge the orders save
as the result of some bargain made between the person who is the
subject of the order and the applicant authority.
I can contemplate a deal being
done between someone deemed to be a criminal who is already the subject
of an order, and the applicant authority. The deal would be something
like this: “If you give us information, we will go to the court
and apply to discharge the order.” Whether that is a good thing
or a bad thing depends on the transparency of the deal. I rather
suspect that neither the court nor the rest of us would learn about the
nature of the deal. While in some circumstances I might applaud the
deal, I am by no means willing to say that I would do so in all
circumstances.
Let me
repeat what I said before in this Committee. Once public authorities
are given power it is always abused. It is a fundamental law of public
law. All power, once given to officials, is always at some stage or
other abused. This Committee, as representative of the House as a
whole, has to be very conscious of that.
I am aware, as I reminded
myself of the grouping under clause 10, that we have already debated my
amendment No. 115, which was intended to set out criteria as to the
considerations which the subject of the order would have to establish
in order to prove that the discharge order should be made. The problem
about the clause as it is currently formulated is that there is no
indication of what the applicant has to prove, other than a change in
circumstances. Once a change in circumstances has been established, it
is left at large as to the criteria that the courts should adopt. I
personally find that rather undesirable. I should have thought it
highly desirable that the Bill should say what considerations the court
should adopt.
There is
a slightly different point. What is the meaning of the
phrase,
“a change of
circumstances affecting the
order”?
What is the
position where the applicant says, “I have turned over a new
leaf”? That is the point made by the hon. Member for Taunton. Is
a person who says, “I have turned over a new leaf” a
person who can say that there has been a change of circumstances
affecting the order? I do not know the answer to that. But it is rather
important. If the applicant can say that he comes within that rubric,
this is a form of appeal against the order once made. If not, if we are
dealing with a technical matter only—for instance, “I no
longer wish to use this particular mobile telephone, but I would like
to use another one,” or, “I do not want to use this bank
account; may I use another?”—it is a very limited right
to apply for a discharge of the order. I would welcome guidance from
the Minister on the meaning to be given to the phrase
“change of circumstances affecting
the order”.
In short, is
it an opportunity for people who have turned over a new leaf and who
want to lead a new life to ask for the order to be lifted? As I said, I
would like to see the criteria to be adopted by the court set out in
the Bill.
Mr.
Coaker:
I was not going to speak on clause 19 because many
of the arguments have already been rehearsed. However, the point raised
by the right hon. and learned Member for Sleaford and North Hykeham
about someone saying that they have turned over a new leaf is
important. Someone saying that they had turned over a new leaf would
not of itself be sufficient for the court, as the right hon. and
learned Gentleman will concede. If the person who was the subject of
the order could demonstrate his new circumstances to the court and show
how he had changed, the court might be able to consider it, but a
person saying simply that he had turned over a new leaf would not be
enough. The court would have to hear the evidence that the respondent
wanted to present in order to determine whether he had turned over a
new
leaf.
Mr.
Hogg:
The Minister makes a rather important statement. He
will know that the courts are entitled to consider ministerial
statements when determining the interpretation of statutes. I
understand plainly what he says—that the applicant has to
produce evidence to show that he has turned over a new leaf. That is
wholly and utterly right. I accept that. However, he also says that if
the applicant can do that and the court is satisfied, as a matter of
fact, that he has turned over a new leaf, the change of circumstances
provision is established and the court can discharge the
order.
Mr.
Coaker:
Only if it is relevant to the conditions imposed
under the serious crime prevention order. The subject of such an order
can say, “I have turned over a new leaf. I can demonstrate to
the court how I have changed in the following ways—A, B, C,
D.” The court may be satisfied that the conditions that led to
the imposition of the order are no longer relevant because of that
change. That is something that the court can consider—I see that
the right hon. and learned Gentleman is nodding. I realise that he is
not saying this, but a statement saying that someone had turned over a
new leaf would not be sufficient. I therefore hope that the clause will
stand
part.
Question put
and agreed to.
Clause 19 ordered to stand
part of the Bill.
Clause
20
Orders
by Crown court on
conviction
Mr.
Hogg:
I beg to move amendment No. 121, in
clause 20, page 12, line 44, leave
out from ‘concerned;’ to the end of line 1 on page
13.
The amendment is
small, but I suggest that it is surprisingly important. It would delete
the provision contained in subsection (7)(b), namely that an order can
be made by the Crown court in addition to an order “discharging
the person conditionally”. I do not want to go into too much
detail, but my wish to delete that paragraph goes back to an earlier
debate and the question of what offences should be caught or classified
as serious offences.
The Committee
may remember that I had suggested that the penalty was a good way of
identifying those offences that should be treated as serious crimes
under the Bill. One thing is absolutely plain: in the generality
of cases, a person who has been conditionally discharged is being
treated extraordinarily leniently. It inevitably follows that an
offence that attracts a conditional discharge can in no sense, in
ordinary language, be considered serious. It is almost the least penal
of punishments that can be imposed. An absolute discharge is probably
the least penal, but a conditional discharge is the second least penal
or oppressive. By
including that provision, we are enabling the Crown court to impose a
pretty draconian order—we come to the arguments about clause
6—in respect of somebody where the offence, as determined by the
nature of the penalty, is by definition pretty trivial. I do not like
the feel of that one little bit, especially when one considers the
renewal provisions that we have debated already. On any view, I would
say that subsection (7)(b) should be cut out of the
Bill.
James
Brokenshire:
I support the amendment. In this context, we
have to look back at what has been said about the reason for seeking
serious crime prevention orders. I referred earlier to the fact that we
have been told that, in essence, it is anticipated that only 30
applications for serious crime prevention orders would be made a year.
We have been told that the intent would be to use them for the
“Mr. Bigs”—in other words, a small,
narrowly defined group of serious offenders. In considering the Bill
and how it is framed, it is appropriate to consider not only the types
of offences that are specified in schedule 1 as denoting seriousness
for the purposes of the Bill, but the range of punishment that might be
available.
My right
hon. and learned Friend has focused on the point about conditional
discharges. It would seem strange that one of those 30 orders against a
Mr. Big would apply to someone who had received a
conditional discharge, because that would suggest that the court did
not regard the offence as serious in that context. My right hon. and
learned Friend has made a persuasive case and therefore certainly has
my support from the Front Bench in pursuing the
amendment.
Jeremy
Wright:
Briefly, I, too, would like to support the
amendment that my right hon. and learned Friend the Member for Sleaford
and North Hykeham has moved, for the reasons given by him and, from the
Front Bench, by my hon. Friend the Member for Hornchurch.
A substantial imbalance would
be created if subsection (7)(b) were to remain in the Bill, because
somebody receiving a conditional discharge can receive such an order in
consequence of a criminal conviction only if either their involvement
in the offence was minimal or their personal circumstances were so
remarkable that that was thought to be the appropriate decision in the
case. In either situation, for that to be the criminal penalty and for
a civil order placing extraordinarily onerous restrictions then to be
imposed would give the lie to the argument that the provisions are only
preventive and not punitive, and that they are designed purely to
ensure that those with a serious and detailed involvement either in a
previous commission of serious crime or in a likely future one need to
be controlled. Those are not the individuals who are likely to be
subject to such an order. If the Minister were to
insist on retaining the provision in the Bill, I suspect that his other
arguments would be substantially
undermined.
Mr.
Coaker:
It is fair to say that 30 was an approximate
figure for the number of orders that we thought might be used by the
courts in any one year. Of that figure, I do not expect that many would
be used on the back of a conditional discharge.
However, one could foresee a
situation in which it might be useful for the courts to have the power
to impose a serious crime prevention order, should they believe that to
be appropriate in the circumstances. For example, suppose someone who
is a serious criminal has been convicted of a serious offence, however
defined—in schedule 1 or at the court’s
discretion—but is too ill or old to go to prison. In those
circumstances, people are sometimes given conditional discharges, even
though they have committed serious
offences.
12.30
pm
In
that situation, it might be that a serious crime prevention order could
be given to the individual concerned. The person could communicate, so
one could make them the subject of a serious crime prevention order by
saying that there will be restrictions on their communication. That is
one example of a situation in which such an order might be appropriate.
There might well be others. A conditional discharge is sometimes given
to somebody who is found guilty of a serious offence. In those
circumstances, the court ought to have the ability to use a serious
crime prevention order if it thinks it appropriate.
Jeremy
Wright:
I suspect that, in the circumstances that the
Minister has described, it is far more likely that the criminal court
would impose a suspended sentence rather than a conditional discharge,
which is a wholly different response to such a
situation.
Mr.
Coaker:
The court might well give a suspended sentence,
but, with respect, I am talking about a situation in which it gives a
conditional discharge. I take the hon. Gentleman’s point that
the court might well give a suspended sentence. Given that I have
conceded that point, however, he must concede that it might also give a
conditional discharge, in which case a serious crime prevention order
would be
appropriate.
James
Brokenshire:
Will the Minister contemplate the fact that
under the amendment, it would be open to the court to acknowledge that,
if a conditional discharge order was given, a serious crime prevention
order would not be applicable? Will he weigh that as a factor in
determining what an appropriate sentence would
be?
Mr.
Coaker:
My understanding of the amendment is that it would
make it impossible for the Crown court to make an order where somebody
has been made the subject of a conditional discharge. That is
absolutely the point of the amendment. With respect to the hon.
Gentleman, that is the point of disagreement. I think that there might
be circumstances in which a serious crime prevention order should be
available to the court where somebody has been conditionally
discharged.
Subsection
(7) is drafted to show that the orders are not a form of punishment and
that they must be viewed separately from the disposal that the court
makes in relation to a person who has been found guilty of a serious
offence. The court may impose an order only in addition to the
punishment that it hands down for the offence, or in addition to a
conditional discharge. That is an important point of principle: in this
area, as in others, the orders are not designed as an alternative to
the criminal process of prosecution and punishment.
The practical effect of the
amendment, which is the effect that I believe the right hon. and
learned Member for Sleaford and North Hykeham is trying to achieve,
would be to ensure that an order would not be available to the court
where its disposal was a conditional discharge. I do not agree with
that; the proposed subject of the order might have been conditionally
discharged, but would also have just been found guilty of a serious
offence. Notwithstanding the fact that the court has considered it
expedient to issue a conditional discharge, it should be open to the
court to put in place a reasonable, proportionate order, if it
considers that such an order would protect the public by preventing,
restricting or disrupting the subject’s involvement in serious
crime. For those reasons, I hope that the right hon. and learned
Gentleman will withdraw his amendment.
Mr.
Hogg:
I wonder whether we can see a way forward here. I
like to be collegiate occasionally. The Minister is wrong when he says
that the orders are not intended as an alternative to prosecution. We
know full well that they are; page 31 of the White Paper makes that
wholly
plain.
Mr.
Coaker:
We discussed this in the previous sitting. It is
actually the Green Paper. Whatever it says, we are discussing the Bill.
I have made it quite clear, as does the Bill, that we do not see the
orders as an alternative to
prosecution.
Mr.
Hogg:
If it waddles like a duck, looks like a duck and
sounds like a duck, it is a duck. This legislation is an alternative to
prosecution because it sounds like a duck, waddles like a duck and
looks like a duck—and it has been described as a duck in
previous publications. It is a duck.
I am perfectly willing to
accept that the Minister has made a valid, though narrow, point in
relation to conditional discharge. I can see that it is a theoretical
possibility that there are individuals who are so ill or so old that
they are unlikely to go out and commit serious offences, but who might
make suggestions to third parties who do so. I hope that he, in turn,
will accept that this provision is a creeping mechanism that allows
serious orders to be made in respect of fairly trivial
matters—each of us has a point.
There is a way forward. I
suggest that the Minister amend the Bill on Report so as to include the
concept that the court has made a conditional discharge by reason of
some personal circumstance associated with the person who is the
subject of the conditional discharge. We can talk about whether there
should be specific reference to old age, sickness, or anything else. I
accept that his point has merit, so if he were to ring
fence the concept in order to reflect it, he would
find me extraordinarily collegiate. On that basis, I beg to ask leave
to withdraw the amendment.
Amendment, by leave,
withdrawn.
Question proposed, That
the clause stand part of the Bill.
Mr.
Coaker:
In constructive spirit in which this Committee has
been conducted, I can tell the right hon. and learned Gentleman that I
have heard what he has said and we will consider his points—I
meant to say that when we were debating the amendment. I am not making
any commitment, but I thank the hon. Gentleman for trusting me to do
that.
Question put and agreed to.
Clause 20
ordered to stand part of the Bill.
Clauses 21 to 23 ordered to
stand part of the
Bill.
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