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The noble Baroness, Lady Anelay, suggested in her amendments that to narrow the discretion for law enforcement agencies to specify how certain provisions of an order are to be complied with would be highly desirable. We agreed with the principle behind her amendment and have worked with parliamentary counsel to draft a provision which would give effect to it. I therefore thank her for not moving her amendments in that context.
Amendment No. 28 does precisely what the noble Baroness sought, and I hope that it also provides further certainty and clarity about exactly what we intend. The amendment replaces Clause 5(5) so that it will be possible to require the subject of an order to answer questions, provide information or produce documents, with the following details specified by law enforcement agencies: the timing of such provision, production or answering; the location at which this should be undertaken; the form or manner in which it should be undertaken; and in whose company it should be undertaken. Amendment No. 29 will delete Clause 5(7) as it will no longer be necessary in those circumstances. The discretion proposed in Amendment No. 28 is important as it provides for the practicalities of providing such material to law enforcement officers.
I thank the noble Baroness for her work on this matter. I think that we have reached a position with which we are jointly happy. I thank her again for not moving her amendments earlier. I beg to move.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for moving his amendments, which I support. He referred to the fact that I did not
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It was right that Clause 5(7) should be removed. My noble and learned friend Lord Mayhew of Twysden spoke eloquently on that matter in Committee. The discretion left to law officers in the Bill as it stood before amendment was too wide. On the other hand, I recognise the importance of flexibility, as there is, in any event, when an order is made by a court. There should be an opportunity later to provide the fine detail of what somebody should do. The Governments amendment appropriately sets out the kind of activity or prohibition that a law enforcement officer should later impose. It provides the court with the power and authority to set out the range of prohibitions that should be imposed. I support the amendments.
Lord Thomas of Gresford: My Lords, we are grateful to the Government for moving so far on this issue. We were very concerned about the width of the provision in subsection (7), as my noble friend Lord Dholakia made clear in Committee. At that time, the noble Lord, Lord Bassam, came out with some very emollient words, and he has completely fulfilled the expectations that we had of him, as he normally does.
The noble Baroness said: My Lords, I moved a broader amendment in Committee and have returned to it to enable the Minister to fulfil yet another commitment. This one was given at cols. 789-790 of Hansard on 14 March. Clause 7 provides that the Secretary of State may, by order, expressly exclude the application of a serious crime prevention order to those people who fall within a specified description, but, at present, the only class of people which is specifically excluded in the Bill are those who are under the age of 18.
Paragraph 8 of the fifth report of the Delegated Powers and Regulatory Reform Committee observes that the House may wish to seek a fuller explanation of the Governments intentions for the use of this power. It notes that that the memorandum from the Home Office states that,
I asked in Committee whether the Government might consider exempting, for example, those who had a history of mental incapacity or mental illness. The noble Lord, Lord Bassam, said that he had some sympathy with my point and that he would take the amendment away for further and perhaps fuller consideration. He made a commitment to return to the House on this issue on Report. As I did not note a government amendment on the matter on todays Marshalled List, I maintained my own amendment. It invites the Minister to tell the House the results of the Governments further consideration. I beg to move.
Baroness Carnegy of Lour: My Lords, the House looks forward to hearing from the Minister, first, why she has not responded in the way that she said she would and, secondly, whether she agrees that an order could not be applied to mentally disordered people and those with a learning disability, whom the amendment would exclude. I think that those were the points that my noble friend was trying to make. I hope that she will receive a precise answer.
Baroness Scotland of Asthal: My Lords, I, too, have great sympathy with the intention behind the noble Baronesss amendment. It is vital that those who have severe mental disorders are given the necessary and appropriate treatments for their illnesses rather than simply treated in the same way as others when they come into contact with the criminal justice system. However, I hope that I will be able to explain why I am confident that the intention is met in the way in which the courts will consider the granting of an order without making provision for it in the Bill.
The noble Baroness will know that the clause provides the Secretary of State with a power to make an order that certain persons as specified in an order cannot have an order imposed on them. The reason for this is that the orders apply to organisations, including bodies corporate, partnerships and other unincorporated associations, as well as to individuals. It is not possible to say categorically that there are not, or will not be created, types of body to which it would be wrong or inappropriate to give an order.
From the evidence that we have, the courts will make judgments on whether the proposed subject was in a fit enough mental condition to be made subject to an order. If a person was severely mentally incapacitated such that he could not conduct his affairs it is very hard to see how any order could be justified. That responds to the concern expressed by
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For this reason, we believe that the amendment is unnecessary and resist it. However, I assure the noble Baroness that we went back to test out whether our confidence that this was the right way and would work was correctand we believe that it will. That is why there is no amendment from the Government speaking to the issue.
Baroness Anelay of St Johns: My Lords, I am grateful for the support of my noble friend Lady Carnegy, whose explanation clarified what I was trying to achieve very helpfully. I accept the Ministers further clarification and assurance and I beg leave to withdraw the amendment.
(3) Notwithstanding this, the rules on admissibility of evidence to be observed in such proceedings shall be the same as those observed in trials on indictment; and no person shall be required in such proceedings to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment.
The noble Lord said: My Lords, I referred earlier to the fair trial provisions, which in my view will be held to apply to proceedings of this nature. I mentioned two matters: the standard of proof and the admissibility of hearsay evidence. I start by saying that in the case of McCann the House of Lords, while holding that the civil standard of proof for ASBOs should be virtually the same as that in criminal proceedings, nevertheless permitted the use of hearsay evidence in obtaining anti-social behaviour orders. However, we are not dealing with those orders here but with serious crime, and very serious crime as set out in the schedule that we discussed a moment ago.
The two amendments propose that in the applications that will be made by prosecutors for serious crime orders, while the standard of proof should be high, in addition to that the rules as to admissibility of evidence to be observed in such proceedings shall be the same as those observed in
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The Prime Minister said in a speech to the Labour Party conference some years ago that the hearsay rule is an outdated relic of Dickenss England. That is a very surprising remark coming from that source; it is not a relic but a living principle applied in every criminal court in this country. I beg to move.
Baroness Scotland of Asthal: My Lords, we have already discussed in some detail the appropriate standard of proof for the orders and I hope that I have set out with a degree of clarity how the process of how the orders are made will operate. What I said at that point will provide some context for the discussions in relation to these amendments.
Amendments Nos. 37 and 38 would change the rules on admissibility of evidence in proceedings relating to an order from those applicable in civil proceedings to those applicable in relation to trial on indictment. What the noble Lord says is right in relation to the difference in the nature of evidence that could be used. They also provide that in proceedings for an order a person cannot be required to answer any question or produce any document that he could not be required to answer or produce at such a trial.
The court already has a comprehensive power to manage the cases and the evidence before it and will disregard anything that it considers is inappropriate to be taken into account. These are civil orders and we believe it is appropriate, therefore, that the rules of evidence which apply are the usual civil rules, rather than creating an unusual hybrid approach solely for these orders. For these reasons we resist the amendment.
There are safeguards inherent in the process that I have outlined. Specific safeguards are contained in the rules in the High Court, as the noble Lord will know. The proceedings before the High Court will be civil proceedings and all the normal rules of evidence will apply. For example, Clause 34(3)(a) makes it clear that the Crown Court will not be limited to considering evidence that would have been admissible during the criminal proceedings at which the respondent was convicted. This means that hearsay evidence will in principle be admissible during an application for a serious crime prevention order. However, adducing such evidence will be accompanied by the usual safeguards set out in the Civil Evidence Act 1995. These safeguards include the need to give notice in certain circumstances of the intention to adduce hearsay evidence; the possibility of calling the person who made the statement for cross-examination; the application of special considerations when the court determines what weight, if any, to give to the hearsay evidence; and the application of rules relating to competence and credibility.
Noble Lords can, therefore, be assured that the respondent to an application for a serious crime prevention order will be in the same position as any other person facing an application for a court order. In addition, due to the nature of the cases in which applications for serious crime prevention orders are likely to be made, it is unlikely that hearsay will be any more than a limited part of the case that will be presented to the court by the relevant applicant authority. The court is very familiar with attributing weight to evidence depending on its quality and nature. The reason for this is that often law enforcement officers will be able to give evidence of a persons activities and the purpose of those activities from their own knowledge rather than having to rely on information from members of the public. So we think that there is a very solid base here.
Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for giving me that comprehensive reply, but it does not satisfy me, as it does not recognise the criminal nature of the proceedings.
The whole purpose of the rule against hearsay is to prevent people being convicted on evidence that they cannot actually cross-examine. Hearsay means that the person on whose statement the prosecution relies cannot be cross-examined or questioned. It is apparent that under the provisions of the Bill it would be possible for a police officer, for example, or a member of the investigatory services to go into the witness box and say, I was told this by X, and there is no way in which to challenge that. The consequences on the individual facing the order are, nevertheless, severe: he can be subjected to a serious crime prevention order, which has the potential for enormous restrictions on his freedom of communication, travel and everything else. Whereas the House of Lords was prepared to accept hearsay evidence for anti-social behaviour orders, we are in a completely different league here. It is for that reason that I seek the opinion of the House on this issue.
(2) But see sections 11 to 14 (which limit the requirements that may be imposed by serious crime prevention orders in connection with answering questions, providing information or producing documents).
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