Criminal Justice and Immigration Bill

20:15:00

House again in Committee.

[Amendments Nos. 145 and 146 not moved.]

[Amendment No. 147 had been withdrawn from the Marshalled List.]

[Amendments Nos. 148 and 148A not moved.]

Clauses 130 to 141 agreed to.

Schedules 28 and 29 agreed to.

Clauses 142 to 147 agreed to.

Clause 148 [Violent offender orders]:

Lord Thomas of Gresford
moved Amendment No. 149:

149: Clause 148, page 106, line 34, leave out “the public” and insert “a person or specified persons”

The noble Lord said: Earlier my head was full of blasphemy law and the other matters we have been discussing today, but at around a quarter to one I received a letter from the noble Lord which indicated that very considerable changes are being made to this part of the Bill, covering violent offender orders. As was pointed out earlier, the Bill started its progress last July and has been with us in this House for a number of months, but only now have we received these concessions which have the effect of agreeing to some of the amendments we have proposed, but disagreeing with others. Noble Lords should note that I shall speak to Amendment No. 149A, also tabled in the name of my noble friend Lord Wallace, as well as the other amendments in this group.

Not only has Amendment No. 149A been agreed to, it has been improved upon because the Government are prepared to limit the extent of a violent offender order to five years. The same can be said for the provisions in Clause 149 and therefore to other amendments addressing the clauses in this part of the Bill, but we shall come on to debate those later. However, some of our amendments have not been agreed, and I shall address my remarks to them.

As Clause 148(1) points out:

“A violent offender order is an order made in respect of a qualifying offender which … contains such prohibitions, restrictions or conditions as the court making the order considers necessary for the purpose of protecting the public from the risk of serious violent harm”.

Amendment No. 149 addresses the wording on the basis that a violent offender order should not be made generally to the public, but to a person or in respect of,

“a person or specified persons”.

Our position is that making an order which simply protects the public from the risk of serious violent harm is far too wide. Similarly, Amendment No. 150 addresses subsection (2), which states:

“For the purposes of this Part any reference to protecting the public from the risk of serious violent harm caused by a person is a reference to protecting … the public in the United Kingdom”.

Nothing could go wider than that.

One has to go back to where these clauses came from. A violent offender order is essentially a civil order that derives from the civil procedure which enabled a court order to be made in respect of very specific harm against a particular person. We have been through various manifestations of this type of order. They started off as anti-social behaviour orders, subsequently developed into control orders and on to serious crime orders. Now we come to an order which is made in the widest possible terms, one that seeks to protect,

“the public from the risk of serious violent harm caused by a person”,

where “the public” means the whole of the United Kingdom. Amendment No. 150 would limit that in the way I have indicated. Amendments Nos. 151 and 152 are consequential to the attempt that we are engaged in here to limit the orders in this way. I beg to move.

The Earl of Onslow
When we were talking earlier about blasphemy, the noble Baroness, Lady Andrews, prayed in aid the wisdom of the Joint Select Committee on Human Rights. That wisdom is represented in the Chamber today by myself and the noble Baroness, Lady Stern. I sincerely hope that the noble Lord, Lord West, will also take note of the wisdom of the Joint Select Committee on Human Rights on these particular matters, over which we had very considerable doubts.

We doubted whether the power to make violent offender orders is defined with sufficient precision to satisfy the law; we doubted whether violent offender orders met the fairness requirements of Article 6 of the European Convention on Human Rights; and we doubted whether the Bill contained sufficient safeguards to ensure that an individual is not retrospectively punished for an offence committed before the Act came into force.

We are unhappy that the violent offender orders lack legal certainty. We notice that Clause 148 provides the court with an entirely open-ended discretion as to the type of prohibitions, restrictions or conditions that it may attach to an order. In our opinion, violent offender orders should provide the requisite degree of legal certainty. The Bill should be amended to provide, at the very least, an indicative list of the types of prohibitions, conditions or restrictions which may be imposed, although we consider that it would be more appropriate and offer greater protection of individual rights if an exhaustive list was provided.

We also think that before a violent offender order is imposed—which is, in effect, a criminal sanction—the standards of criminal proof should be applied. Otherwise they provide an ability to double punish someone on suspicion of the way in which they might behave and because someone thinks they might do something wrong. I thought that we had habeas corpus and common law to protect us and that we were supposed not to be convicted except by due process of law. Thinking that someone may or may not be guilty of an offence or is likely to commit another offence of a type for which he has already been punished is not in the best traditions—or any of the traditions—of English law.

I hope that we can make the Government think much more than they have about the letter which I received at about 2.30 pm today, although admittedly it was dated 3 March. The Government have come up with a paltry set of amendments which do not address the problems on which some of us have spent a little time in trying to grasp their complexity. This is yet another example of the Government’s cack-handed and high-handed intention to undermine the rule of law and the liberty of the subject. I sincerely hope we make major inroads into this whole process. I would like to see it abolished altogether.

I apologise to the Lord Speaker for entering in an absent-minded way and walking about the Chamber while she was addressing your Lordships. I apologise to her.

Lord Kingsland
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.

20:30:00

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.

Lord West of Spithead
I was speaking to the first three amendments; the noble Lord, Lord Kingsland, has gone rather wider than that. Indeed, one wonders whether we should have gone on to Clause 168 stand part. I show my lack of knowledge of procedure. Should I answer on those amendments first, or go more broadly?

Lord Kingsland
I apologise for embarrassing the Minister. I was trying to save the Committee time, because I am essentially covering the same themes as the noble Lord, Lord Thomas. The Minister should proceed in the way that is most comfortable for him. He can move from the particular to the general or vice versa; we will be equally delighted.

Lord West of Spithead
I thank the noble Lord for his International Code Flag “Uniform”, which means “You are running into danger”. I might start with the general, which I hope will facilitate the discussion, and then go into the particular.

Serious violence is one of the greatest challenges that we face in contemporary society; it blights lives like no other crime. I know that we are all aware of that. It causes terrible suffering not just to victims but to their families and contributes to higher levels of fear within the community. The Government, working with the police and others, have brought about significant reductions in violent crime during the past 10 years. I know that people dispute figures, but I asked for some examples. In 1997, there were 2,184,000 incidents of violence with injury, which is a pretty horrifying total. Last year, there were 1,207,000, which is still an awfully high number, but a huge reduction. Similarly, I can quote other figures. Woundings are down from 804,000 to 578,000. Those are big reductions, but we are not complacent and we know that there is much to do.

There is no doubt that public perceptions are very different from that, and just because they are perceptions does not mean that they are not important. Such perceptions, partly fuelled by media reporting, have an impact on the quality of life of law-abiding citizens. There is no doubt that they inspire fear. In areas where I have lived in London I have seen that that fear exists. The fear is very real and needs to be addressed.

It is precisely for that reason that on 18 February we published an action plan setting out how we intended to achieve further reductions in serious violence in the future. Our vision is simple. We feel that we have to save lives, and we think that this plan will save lives, reduce harm and protect the public. One can have long discussions and arguments about how people have got into a position where they are committing these criminal acts. We show great sympathy for them and look after them as we should, because they may have suffered in how they have been brought up; but these are often issues within their family life and are not necessarily a matter for government, whereas protecting law-abiding citizens is. Violent offender orders are a key commitment within this plan, and I shall set out why.

As has been said, the violent offender orders are civil preventive orders. Their principal aim is to protect the public from the most dangerous violent offenders who still present a risk of causing serious violent harm and who are not being managed. Although there are a number of ways in which we manage them, these orders are yet another arrow in our quiver. The orders are not punitive and not intended as an additional punishment. We can debate that, but that is how we perceive them. Instead, they acknowledge the importance of risk management.

The Earl of Onslow
How can the Minister say that they are not punitive if they subject people to curfew? I am not arguing that people should not be punished, and of course I am not arguing that the public should not be protected from violence, but to say that locking somebody up for 12 hours a day is not punitive stretches the bounds of imagination beyond the imagination of Walt Disney.

Lord West of Spithead
The noble Earl raises a good point, but we do not know exactly what the conditions will be. The condition might not be that people are locked up; it might be that they are not to go into a certain area. We will list those conditions.

Lord Thomas of Gresford
The Minister, if I understood him correctly, said that the conditions would not be punitive or an additional punishment. Is he saying that because he knows that if they were an additional punishment, they would be in breach of Article 7 of the European Convention on Human Rights, which provides:

“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”?
 

To add at the end of a period of imprisonment and licence thereafter a series of restrictions and conditions which could be described as punitive would be adding to the punishment and in breach of Article 7. Is the Minister saying that the orders will not be punitive just to get round that provision?

Lord West of Spithead
I am not saying it just to get round that provision; I am saying that they are not necessarily punitive. I can think of a case in an area where I lived in north London where it would have been very handy for a chap who was causing immense trouble and difficulty in the road concerned not to have been allowed to go into it. That would not have been punitive, but it would have made people in that road considerably safer.

The Earl of Onslow
The point is that the chap to whom the noble Lord referred is committing a crime; so charge him with that crime and punish him by due process of law. That is what those of us who are ad idem on this issue believe. People should be punished for breach of the law and we should not just add on and tack on.

Lord Thomas of Gresford
The perennial problem with this type of order is that you create a personal criminal code for an individual. You say, “You can't go into this street. You can't go into that park. You can't meet with X” based on hearsay evidence and civil procedure. If he does go into the road or the pub or meet with someone else, then under these provisions it is a crime, just as it would be if he breached a condition of an ASBO. You are acting punitively. You are imposing criminal sanctions on a person for a breach of something that is not a crime for anyone else in the population. That is the problem. There is a real flaw in these orders.

20:45:00

Baroness Stern
I hope the Minister does not mind having to remember so many interventions at once. I got the impression from what he was saying that he is not yet clear about what the restrictions will be. In this very helpful letter—everyone remembers the moment they received their copy; I got mine at 2.47 pm today—it is suggested that an amendment to the Bill at Report will include a list of restrictions that could be imposed on those subject to these orders. The Joint Committee on Human Rights feels very strongly that the restrictions must be in the Bill and must be debated so that those who are subject to them can have some sort of certainty. When are we likely to see these restrictions—so that the Joint Committee on Human Rights can look at them and see how far they satisfy the need for people to know what might happen to them, and so that we can be satisfied they are proportionate?

Lord West of Spithead
A number of points have been raised. I still do not believe that the orders are punitive. It is not a criminal sanction. In reply to the noble Earl, Lord Onslow, it is not always possible to prosecute people when they are causing real concern, fear and almost terror in an area. I know that from an area in north London where I lived and saw for myself what one individual could do in one street. It was all right for a big chap like me because I could confront him, but some of the other people could not. It was very difficult to pin something on him that the police could charge him with. That is what these orders will do. There is no doubt that large numbers of people in this country feel very threatened and worried because of this sort of behaviour. That is what this provision is aiming at.

In reply to the noble Baroness, we aim to produce an indicative list of the sorts of sanctions at Report. I hope that I will answer some of the other questions as I move through the brief.

The provision is based on the risk that these people present to the public. It is not a simple concept—it is difficult, complex and dynamic. It is extremely difficult to predict and manage, but that is not an excuse to do nothing. We cannot wait until that risk presents itself in the form of serious violence. We can stop violent attacks occurring and recurring by doing this.

Lord Thomas of Gresford
With the greatest respect, I must say that the letter I have in my hand, which I received at 12.45, says:

“We will set out on the face of the Bill that a Violent Offender Order should only be made to protect the public from any current risk of serious physical or psychological harm”—
 

—not a risk that may emerge in the future, but a current risk.

Lord West of Spithead
That is absolutely right. That is the risk that I am talking about. It is a current risk and it will be assessed by magistrates and the judiciary. I have great faith in their common sense in applying sensible rules to make sure that they are looking after the public. One of the strengths of our judiciary and magistrates is that they can do that. That is how this will be done. Violent offender orders will allow us to do that by enabling the court to impose prohibitions—which as I said will be listed—or conditions on an individual for the purposes of public protection.

Baroness Howe of Idlicote
I hope that the noble Lord will forgive me, but I am trying to understand this. The nearest I can get to it is a conditional discharge. I speak as a former magistrate. Someone who receives a conditional discharge must have committed an offence. The aim of giving a conditional discharge is to try to ensure that the offender does not do something that is likely to result in them receiving a real sentence. Are we talking about there not being enough police to go into an area if they hear about problems and wait there until they can arrest someone for an offence? I find this very difficult to understand. Perhaps the Minister can describe the conditions that he has experienced in north London that would merit this measure.

Lord West of Spithead
I had hoped that the noble Baroness would have understood from my earlier remarks how this measure works. You can be in a situation where someone is acting in a very threatening and worrying manner but they do not do anything that enables the police to arrest them and charge them. Indeed, sometimes they can damage cars—

The Earl of Onslow
Damaging a car is a criminal offence. In a civilised society you should not say, “We think you might commit a violent offence although we can’t prove it but don’t go to the pub on Tuesday”, or, “Stay in your semi-detached villa in Ealing from 3 o’clock in the morning till 3 o’clock in the afternoon”. That is not law; it is just whimsical.

Lord West of Spithead
I fear that that shows a lack of understanding of what goes on in some parts of the country and in some inner cities. It is extremely difficult to prove that somebody has done something that may, none the less, be highly intimidating to the people in that area. That is what—

The Archbishop of York
If I am in a pub and somebody behaves in a threatening manner, and people can testify to that fact, and the criminal law says that you should not behave in that manner in a public place, somebody is committing an offence. The Minister says that these orders are not meant to be punitive, so he is already ducking the question that the purpose of punishment is—in my terms—to elicit penitence. So you are not going to punish anybody; rather, you are saying, “We’ll hold you back but the police should not come in because this is a difficult matter”. Am I hearing the Minister right? I am not so sure that we want orders. What we actually want is for the criminal law—after all, this is called the Criminal Justice and Immigration Bill—to determine whether a crime has been committed. Either a crime has been committed or it has not. If it has not been committed, for heaven’s sake what are these orders for?

Lord West of Spithead
We are talking about going into a pub and people saying that a crime has been committed and being prepared to talk about it. However, I am afraid that there are areas in our country where people will not do that. People will not come forward, as they are scared. Yet one knows exactly who the individuals are who are causing this problem and posing a great risk to others. That is what these measures are aimed at.

Baroness Stern
I am sorry to interrupt but it is very important that we try to get to the bottom of this. The Minister talked a lot about what goes on in north London. Another thing that goes on is that certain groups of people do not like other groups of people. Some people say, “There are three black boys there and I find that threatening”. Will that be reason enough to make an order, because those people happen to be young, they happen to be black, they laugh and shout and when you walk past you think that they are talking about you when of course they are not because they are talking about something else? Is there not a very real danger in what the Minister is trying to sell us that it simply becomes a way of trying to deal with community tensions rather than trying to resolve them? Is there not a danger that one may criminalise one segment of the population? Does the Minister accept that we risk that happening?

Lord West of Spithead
I do not accept that at all. That is not what the measure is aimed at. It is aimed at people who have previously committed violent offences. The situation is then looked at and subjected to a risk assessment by magistrates. Generally, I have a lot of faith in magistrates; perhaps it is because I have been at sea for many years, but I have a lot of faith in their common sense.

The Earl of Onslow
The noble Lord said that, because someone has committed a violent offence before, we are going to impose another restriction on them. That is double jeopardy in anybody’s book. It is punishing people a second time around and that is plumb against the European Convention on Human Rights and, above all, against English judicial tradition.

Lord West of Spithead
We accept that in relation to domestic violence and that is the basis on which we are approaching this. It certainly will not pick up people who are just making a noise and doing things like that. We are all used to that; those things happen. It is for people on whom a proper risk assessment has been done and who are considered a real risk to the public. This is not going to be done to lots of people. It is another arrow in the quiver to deal with that small group of people whom we cannot control in any other way. One of the main roles of government is to protect the people and I believe that this measure will do that. I am afraid that there are areas of our inner cities and other parts of the country where people are terrified of others acting in certain ways. This is a way of protecting them. It is up to magistrates to use their experience and common sense to assess the risk and the level of conditions to be used, although we are giving indicative conditions. I have faith in their ability to do that sensibly.

The noble Lord, Lord Kingsland, asked why we need violent offender orders when we have public protection sentences. We intend violent offender orders to build on and to complement other public protection measures. As I said, they are another arrow in the quiver. I agree that they are not perfect, but they will provide a further tool to ensure the ongoing protection of the public from the most dangerous violent offenders who are considered to pose a risk of serious violent harm. The judiciary will have to assess that risk. In particular, violent offender orders will address certain current gaps in the risk management arrangements. I shall set out those gaps, which may answer some of the questions.

First, as the Committee will be aware, the public protection sentences were not introduced until 4 April 2005. That means that there is no provision for the ongoing risk management of violent offenders sentenced prior to that date. Secondly, since the introduction of public protection sentences, the point at which an individual comes to the end of their licence period varies according to the type of sentence that an individual was given for the original qualifying offence. In all cases, there could be a point at which an individual’s sentence for the qualifying offence has expired or been revoked but his or her behaviour has since come to the attention of the police or other authorities as being sufficiently high risk to require further management or supervision. Finally, because risk is such a dynamic concept, there may be times when individuals who were not considered dangerous enough to warrant an indeterminate or extended sentence at the point of conviction are later considered to pose a risk of serious violent harm to the public and to themselves.

Having identified those gaps in risk management arrangements, we cannot ignore them. We have a duty to ensure the protection of the public from serious violent harm. Violent offender orders are an important tool in achieving that. The orders closely mirror other civil preventive orders, particularly sexual offences prevention orders, which have proved to be a highly valued tool for managing the risks posed by sex offenders and have been welcomed by public protection agencies and local communities.

The time has come for us to acknowledge the important role that civil orders play in the protection of our public. They reduce harm and reassure communities that the Government place the protection of the public at the heart of everything that they do. That reassurance and change of perception are extremely important, because fear erodes the quality of life for a considerable number of our people.

As violent offender orders have progressed through Parliament, we have listened carefully to the points raised in the other place and by experts in the field, including the Standing Committee for Youth Justice and the Joint Committee on Human Rights. We thank the Joint Committee on Human Rights for its input; it is important and we have looked at it. In the light of the concerns that have been raised, we have written to noble Lords, who will have received my letter at varying times. I am most impressed at the precision of that, which is slightly better than the tactical UHF circuits in Her Majesty’s warships. I was getting the timing precisely to the minute, which was most impressive.

21:00:00

The amendments will make seven separate changes to Part 9. First, we will set out in the Bill an indicative list of the conditions that could be imposed as part of an order or interim order, in the same way as for serious crime prevention orders. Secondly, we will provide that interim violent offender orders should be made only where there is clear evidence to support the case for a full violent offender order. This will be on the basis of prima facie evidence, or similar. Thirdly, we will provide that interim violent offender orders are non-renewable, while lifting the current four-week limit on their duration. Fourthly, we will provide for the applicant and the offender to have the right to be heard during the making of an order. Fifthly, we will exclude under-18s. Sixthly, we will introduce a maximum length of time, namely five years, for which orders can be imposed unless renewed. Finally, we will specify more clearly in the Bill that violent offender orders can be used only to protect the public from a current risk of serious violent harm.

That is a comprehensive package of changes, which addresses the legitimate concerns that have been raised. I can see that people feel very strongly about this, and we have considered carefully how to address some of those concerns in our amendments, which cover a large number of them. We cannot leave the public exposed to any known risk of serious harm, and there is a real risk of that. This is aimed at plugging that gap. As a Government, we should do everything in our power to protect the public and reduce serious violence. Without doubt, violent offender orders reduce fear, and I believe that they will also save some lives. That in itself is worth doing.

The amendments in this group were to do with protecting a specific named person or named persons from the risk of violent harm. As noble Lords will be aware, the purpose of the violent offender orders is to provide a means of continuously protecting the public from the most dangerous violent offenders. Violent offender orders will only ever be made on the basis of an up-to-date risk assessment. The noble Lord, Lord Thomas of Gresford, stressed that this risk will sometimes be targeted at a known specific individual, which is correct; that is a much easier case. However, this will not always be the case. Sometimes the risk will be targeted at a group of individuals, for example in the case of hate-related violence. In the Bill, for example, we have already considered the need to protect lesbian and gay people from the dangers of incitement to hatred and the violence that this can lead to. In some cases, it will simply not be possible to predict any individual target and it will be more general. Let me make it clear that just because the risk of violence is not focused on one specific member of the public, it does not mean that the risk does not exist.

Over the past few years, we have all read in the press about numerous unpremeditated violent attacks against innocent members of the public, some of which have been quite ghastly and obscene—the press loves reporting those. The victims of such attacks were not targeted in advance by their attackers and it would not have been possible to predict their specific risk of victimisation. It is precisely these attacks that prove that we must be able to protect the wider public from the risk of violent harm. Violent offender orders, as currently provided for, allow us to do this by enabling the court to place restrictions on an individual, where needed, to protect the public as a whole from the risk of serious violent harm.

We have a duty to protect the public. It would be irresponsible and inappropriate to narrow the scope of violent offender orders. They must be available to protect both specific individuals and the wider public. I therefore ask the noble Lord to withdraw his amendment.

Baroness Stern
I would be grateful for some help. As I understand it, people are going to be risk-assessed and then an order will be applied for. However, the risk assessment will not be triggered by the fact that they have done anything violent, because if they had they would be charged with a violent offence. Can the noble Lord tell us how someone will know that the person is a risk when that person will not have done anything that they could be charged with? Perhaps I can make myself clearer: on what basis will someone trigger the process that leads to them being put up for an order?

Lord West of Spithead
It is quite difficult to give exact examples, but let us say that the police witness someone drinking excessively and acting in a slightly strange manner to members of the public. The local bar manager reports to the police that this man has been highly abusive to the manager on a regular basis and to customers on a number of occasions. The man has made threats to people, none of whom is willing to say anything to the police about it, because they are too scared. The barman feels that his family and his—

Baroness Falkner of Margravine
I really do not want to add to the noble Lord’s woes and the hour is late, but—and there is always a “but”—what is really alarming about that example is the numbers that might potentially be involved. I wonder whether, in choosing that as something that might be illustrative of where these orders will apply, the Government have done any research on what their citizens get up to on a Saturday night in our urban city centres. Do the Government have any idea, regarding the behaviour that the noble Lord is describing, of how many people this might apply to, not least young women?

Lord West of Spithead
The noble Baroness raises a very good point. These orders, which will go through a list of assessments, will be looked at by the judiciary and then be applied, will probably number about 100 a year. That is the sort of number that we are looking at. I could go into the centre of lots of towns—I dare not mention one, because it will no doubt appear in the media—and find several hundreds, if not thousands, of people behaving in ways that I would find slightly extraordinary. We are looking here at people who are a real risk to the public. That is what we are aiming at and that is why the risk assessment is done.

As I said, I have faith in the common sense of our judiciary and others to make this assessment. If this saves just a few lives, it is worth doing. If it makes our public feel safer, it is worth doing. That is why it is important. Our assessment is about 100 people a year. It is yet another arrow in our quiver of different ways in which we can tackle this problem. There is no one easy answer, I am afraid. We are actually reducing the number of violent crimes, but violent crime remains an appalling thing and is a blight on large areas of our inner cities. This measure will do something to tackle that.

Lord Thomas of Gresford
It is helpful to look at the situation that is envisaged. The person against whom the order has been made has been convicted of one of the specified offences set out in Clause 148(3), which are serious offences. He will have served his sentence, he will have served the period of licence thereafter and then he is to be risk-assessed. By whom? Clause 150 states:

“A chief officer of police may by complaint to a magistrates’ court apply for a violent offender order to be made in respect of”,
 

the particular person. The officer can make that application if,

“the person has, since the appropriate date, acted in such a way as to give reasonable cause to believe that it is necessary for a violent offender order to be made in respect of that person”.

So the risk assessment initially comes, presumably, from the police. However, Clause 150(5) states:

“The Secretary of State may by order make provision … for applications under this section to be made by such persons or bodies as are specified or described in the order”.
 

Therefore, the Secretary of State can, by order, extend the risk assessment from the police presumably to the probation officer and possibly to the local vicar or perhaps some other organisation. We have been talking a lot about bailiffs. Perhaps a bailiff will come within an order of this sort and be able to make an application and a risk assessment.

The person applying for the order will then take the evidence that he has gathered, possibly from people who will not come forward to give the evidence themselves because they are too frightened to come forward. A policeman will say, “I’ve spoken to A, B and C, and they have told me that this lad is living down the road. He’s a Muslim. They don’t like him and they’re afraid of what he’s going to do. I am putting this in front of you, Mr Magistrate, for you to become a risk assessor”. It will not be a case of magistrates deciding guilt or innocence, which of course is what they have done since the beginning of time in this country; they will now become risk assessors. The policeman will then say, “The evidence that I bring forward is not being given by people in person but in statements or on a piece of paper, and we’re not saying who produced it, so no one can investigate whether the original complainant has a grudge against the individual concerned”—

The Earl of Onslow
Perhaps I may interrupt the noble Lord. Is it not also true that there is no possibility of testing this evidence by cross-examination?

Lord Thomas of Gresford
Precisely. It may be that an order is made on ordinary evidence called before the magistrates’ court, but that is not the idea. The idea is to use the civil procedure so that the rules of civil evidence, which include hearsay, can be relied on. The magistrate sits there as the risk assessor and under Clause 148, which we are considering, he can make such prohibitions, restrictions or conditions as he thinks necessary. At the moment, there is absolutely no limit on that. We are promised indicative conditions by the noble Lord but not an exhaustive list. Therefore, the magistrate, as the risk assessor, has to ask himself, “How do I cope with dealing with this particular person, against whom so many neighbours speak?”. The answer is that he makes a wide order, and he is entitled to do so because a magistrate can pass such prohibitions, restrictions or conditions in the order as he,

“considers necessary for the purpose of protecting the public”.

The public are defined as,

“the public in the United Kingdom”.

Therefore, he is being asked to protect not the people in the street in north London in which the noble Lord lives or a particular individual but the public in the United Kingdom. How can that magistrate, who is trying to become a risk assessor, make an order that will impose a restriction or condition in relation to all the public in the United Kingdom without making it so broad that inevitably it will be broken? The subject of the order will not be allowed to go outside his neighbourhood because he might attack someone in Scotland.

The purpose of my amendment is to limit the scope of the order to a specific individual or number of individuals so that at least there will be something concrete for the magistrate to grasp on to and he will be able to devise a set of personal rules for the individual that possibly can be obeyed. Imposing conditions and restrictions that relate to everyone in the United Kingdom is so wide as to be impossible to maintain. That is what we are on about here.

What is more, according to the noble Lord, those conditions and restrictions are not to be punitive or additional punishment, even though a person will go to prison if he breaks them. The fact that he is not allowed to go into a pub or down the street or get on a train and go somewhere else in the United Kingdom is not punitive or additional punishment. The whole system that is envisaged is illogical, unjust and unfair. 

Clearly, we have to see what sort of amendments the Government will produce on Report, based on today’s letter. I plead with the Minister not to give us things just before we walk into the Chamber, expecting us to pick up instantly what is being proposed and giving us no time to consult others, to have discussions among ourselves or to have cross-party discussions. Please at least give us proper notice of what the Government intend. The Bill is not new and it has been strung together from the very beginning. I mentioned at Second Reading the 200 clauses and amendments placed before the House of Commons on Report when there was no possibility of debating more than a fraction of them. The same thing is happening to us. We are given not a list of amendments but intentions of the Government just before we walk into the Chamber. I hope that we will know what the Government have definitely in mind long before we get to Report stage. Having got that off my chest, I beg leave to withdraw the amendment. 

Amendment, by leave, withdrawn.

21:15:00

Lord Thomas of Gresford
moved Amendment No. 149A:

149A: Clause 148, page 106, line 36, after “years” insert “, and not more than 10 years,”

The noble Lord said: This amendment features in one of the points made by the noble Lord in his letter. I understand that instead of,

“not more than 10 years”,

his intention is to say “not more than five years”. I will be glad to hear that from the Dispatch Box. For that purpose only, I beg to move.

Lord West of Spithead
As I have already explained in the context of the debate on the previous amendment, these orders are intended to protect the public. We know that risk is a difficult issue, and we have had a certain amount of debate about that. I am surprised that the noble Lord, Lord Thomas of Gresford, seems not to have as much feeling of magistrates’ ability to undertake this task as I thought he might. They already carry out exactly this task with ASBOs and sexual offences prevention orders, and they are the risk assessors. I think they will be very good at it. They will deal with the small number of people who are very high risk.

We know that this risk will present itself in different ways and at different times. We have imposed a minimum length of two years for every violent offender order to ensure that the risk of serious violence can be managed and reduced. After this two-year period, we believe that the court is best placed to assess, on an individual basis, the most appropriate length of order. We accept, however, that there is a case for an upper limit, given that the risk posed by a person subject to a violent offender order will change over time. Accordingly, we propose to table an amendment on Report that provides for a maximum length of five years. It will remain open to the police to apply to renew an order if circumstances should justify that. It will, of course, be for the court to decide whether an extension is indeed warranted.

I apologise for the short notice of my written notification. I was keen to get a written notification out to people so that they could see this, rather than just mentioning it on my feet, on the Floor of the House. I hope that I did the right thing, or perhaps I should just have mentioned it on the Floor of the House. I am not sure what the normal procedure is. I thought that, in that way, I would at least give the Committee some advance notice. On the basis of what I have said about the five years, I ask the noble Lord to withdraw his amendment.

The Earl of Onslow
I am pleased that the period has been reduced from 10 to five years. It is totally fair to thank the noble Lord for the letter, as opposed to just telling us on his feet, but the letter still could have arrived earlier.

Surely, if you are going to renew the order after five years, it means that the chap has done something wrong, otherwise you would not want to renew it. So, if he has done something wrong, he is either going to get put inside for breach of an order—sent to prison without fair trial—or he will be tried for a crime and sentenced, which is how most of us would like it to be, rather than this general power to lock people up without due process of law. However, if he has done nothing it probably shows that the order was not necessary in the first place.

Lord West of Spithead
The noble Earl, Lord Onslow, raises a good point. It might show that. It might show that the order actually had some beneficial effect for him because he realised that he had to keep within certain conditions, like not going into an area where historically he had always done things. It could be taken either way.

I agree entirely that the best thing for someone who is a thug and a danger and that sort of thing is to prosecute him properly and put him behind bars. I could not agree more. However, it is not always that easy. That is the problem.

Lord Thomas of Gresford
I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 150 to 152 not moved.]

Clause 148 agreed to.

Clause 149 [Qualifying offenders]:

Lord Thomas of Gresford
moved Amendment No. 153:

153: Clause 149, page 107, line 12, after “person” insert “aged 18 years or above”

The noble Lord said: Again, this is another matter where the noble Lord, in his letter today, has been good enough to tell us that he will accept that these orders should not apply to people under the age of 18 years. I wait to hear confirmation from the Minister at the Dispatch Box and beg to move.

Lord Bassam of Brighton
The noble Lord raises the issue of the effect of the orders on those under the age of 18. I confirm that we will table such amendments.

We cannot overlook the fact that a small number of serious and violent offenders will be under the age of 18 and, perhaps even more significantly, that the majority of these young people may pose a risk of serious violent harm to other young people, whom the Government have a duty to protect. However, let me make it clear that it is for these reasons that we still believe that violent offender orders should in principle apply to both adults and young people.

We acknowledge that, in practice, most young offenders convicted of a serious violent offence, who are therefore potential candidates for violent offender orders, will be 18 or over by the time they would have completed their sentence for one of the trigger offences. We are therefore content, for the time being, to limit the application of Part 9 to adult violent offenders and review the position in a few years’ time, once the violent offender order approach has bedded in. It is always wise to reflect on how these things are working, just as we do from time to time with ASBOs and, no doubt, will do with other similarly structured orders. We give a commitment to table government amendments on Report, and I hope that the noble Lord, having heard that, will see fit to withdraw his amendment.

Baroness Stern
Can the Minister confirm that he said that it was not the Government’s intention to make such orders available to under-18s for the time being? Does he therefore mean that the Bill be open-ended in that some procedure can be brought in, perhaps by negative resolution, which will enable it to be extended to under-18s at a later date? Or is it absolutely clear that it will not apply to under-18s? I think that the Committee would be happy to know that.

Lord Bassam of Brighton
No, we would have to bring forward new legislation, as I understand it, to capture the under-18 age group. I am saying that we do not rule that out. If this works well, as we believe it will, then, when we have reviewed the situation some way down the line, we would be foolish to deny  ourselves access to an order that has merit. I know that, in the debates that we have had this evening, the Committee has not expressed great confidence in this. We obviously have a difference of view; we can see the merit at this stage in having the age of 18 as a cut-off point. However, I am sure that even opponents of this approach would concede that if, in the future, as far as they are concerned it is shown to be effective, we would be negligent in our duty as a Government if we did not further reflect on the position.

Lord Thomas of Gresford
I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford
moved Amendment No. 153A:

153A: Clause 149, page 107, line 13, at beginning insert “Subject to subsection (4A) below,”

The noble Lord said: Amendments Nos. 153A and 153B are paving amendments for Amendment No. 153C, which is included in this group. In Clause 149, a qualifying offender is identified as,

“a person within subsection (2) or (4)”.

Subsection (2) deals with a person who,

“has been convicted of a specified offence and given a custodial sentence of at least 12 months”,

or who has been found to be insane or under a disability and could not be convicted of the offence. Subsection (4) deals with a conviction in a country outside England and Wales and again relates to a conviction for a period of imprisonment of at least 12 months.

The purpose of the amendments is to put a limit on that. For example, a person who had been in prison for a period and released and for whom the period of licence, if any, had come to an end, should not, at a distance of 11, 12 or 15 years thereafter, be made the subject of a violent offender order. There should be a 10-year limitation from the date of completion of a sentence under subsection (2); a 10-year limitation from discharge from a hospital order or a supervision order under subsection (3); and a 10-year limitation from the completion of a sentence in a country outside England and Wales under subsection (4). The purpose of the amendments is to insert as subsection (4A) the provision that your Lordships can see in the amendment as drafted:

“A person is not within subsection (2) or (4) if … the custodial sentence referred to in subsection (2)(a) or (4)(a) was completed more than ten years prior to the date of application for a violent offender order; or … the relevant order in subsection (3)(a) or (b) was rescinded or otherwise terminated more than ten years prior to the date of application”.

We think it essential that there be some limitation. If 10 years have gone by since the date of release without any need for a violent offender order to be applied for, we respectfully suggest that it is too late, unjust and unfair to make a violent offender order at a much later date. I beg to move.

Lord Bassam of Brighton
I apologise for being slightly slow in getting to my feet; I was expecting rather more interest in this than was the case. The noble Lord, Lord Thomas of Gresford, has explained his amendment very ably, as ever. The effect of the amendment would be that a violent offender order could not be imposed on an individual convicted of a specified offence or found not guilty by reason of insanity or disability more than 10 years previously even if they were considered to pose a risk of serious violent harm in the present day. As we explained when addressing this issue, the primary aim of the violent offender order is to protect the public from the risk of serious violent harm.

I am sure that noble Lords will accept that risk is a dynamic concept. In some cases an individual may commit a violent crime once but then never present a risk of serious violent harm again. In other cases an individual's risk level may fluctuate over time. We know that there is no one-size-fits-all approach to risk management. Management and supervision must instead always be targeted on the specific risk, the risky individual and the context within which they are behaving.

It is precisely that issue that the noble Lord, Lord Thomas of Gresford, seeks to explore through the amendments. The Government's view of the matter is very simple and straightforward. Should a violent offender order be imposed in respect of an individual who was convicted of an offence more than 10 years ago, but who is considered still to pose a risk of serious violent harm in the present day? Absolutely; that is vital for public protection. However, should a violent offender order be imposed in respect of an individual who was convicted of an offence more than 10 years ago but who has lived a totally blameless life since? Absolutely not, in terms of public protection.

The Earl of Onslow
If he has not been convicted of an offence, he has lived a completely innocent life. Is the noble Lord not aware that an Englishman is innocent until proven guilty? That is a principle of English law which has been established even at kindergarten level. A man who has not been convicted for 10 years is blameless, period.

Lord Thomas of Gresford
The amendment addresses not the period of 10 years from the date of conviction, but 10 years from the date of release—the completion of the sentence. That may also include a period of licence after the physical imprisonment has ceased. So we are looking well into the future, long after that person has left prison or hospital, or had his supervision order discharged. As the noble Earl said, surely there comes a time when a person is entitled to say, “I have led a blameless life since my release from prison 10 years ago”. We cannot then go through the risk assessment process that I outlined, getting the local policeman to collect a few names and produce them before the magistrate to ask him to make one of these orders. It is only fair and just that there should be a limitation. There are limitations in almost every other field, apart from the actual commission of crime.

21:30:00

Lord Bassam of Brighton
I am grateful to the noble Lord, Lord Thomas, for his clarification. I understand the point. Of course the noble Earl, Lord Onslow, makes a reasonable point: if people have been leading blameless lives, clearly the order is not appropriate for them.

I will be rather more sympathetic in my conclusion than was assumed from my introduction, but we need to run through these arguments. The violent offender order will be imposed only on the basis of an up-to-date risk assessment—that goes back to my point about fluidity and the need for a targeted and better focused risk assessment—and only when the risk of an individual is considered to be sufficiently high as to warrant further management or supervision. Noble Lords will need to attend to that point.

In recognition of the dynamic nature of risk, we are unwilling to restrict absolutely the definition of a qualifying offender to those who have offended within the past 10 years. To do that would mean that we were unable to manage and supervise individuals who we know are capable of committing a serious violent offence and who still present a risk of serious violent harm. It would be highly inappropriate knowingly to leave the public exposed to such a risk.

I recognise that noble Lords are concerned to ensure that violent offender orders are applied fairly—I recognise the importance of that point; the noble Earl, Lord Onslow, has made it patently clear to all of us several times this evening—and only when an individual’s risk level in the present day is such that further management or supervision is required, is essential, one could argue.

I assure the Committee that we share that concern and believe that the provisions as they stand would achieve that aim. However, we take seriously noble Lords’ views on this matter. I certainly recognise that the need for an up-to-date risk assessment may not be as clear as it could be in the Bill. I therefore undertake to table an amendment on Report that will put this requirement beyond doubt. Although we may not go as far as noble Lord seeks to go in this amendment, we have attempted to move some way in the direction of noble Lords’ argument, and for those reasons I hope that the noble Lord, Lord Thomas, will feel able on reflection to withdraw his amendment.

Lord Thomas of Gresford
I shall adopt the words of Lord Asquith and wait and see. I want to see that amendment well in time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 153B and 153C not moved.]

Clause 149 agreed to.

Clause 150 agreed to.

Clause 151 [Making of violent offender orders]:

The Earl of Onslow
moved Amendment No. 154:

154: Clause 151, page 109, line 3, after “satisfied” insert “beyond reasonable doubt”

The noble Earl said: This is another amendment that has been produced by the clever people behind the scenes of the Joint Committee on Human Rights. Through it, we are asking to eliminate the present legal uncertainty. With this amendment and the subsequent one, Amendment No. 155, we hope that guilt must be proved beyond all reasonable doubt—a nice old fashioned, traditional English judicial safeguard—and that the suspect, or the chap who we think will disturb noble Lords’ sleep, will have the right to contest the evidence and say that all those people who have been chatting about him behind his back in the pub are telling lies, because people chatting behind people’s backs in pubs frequently tell lies, or exaggerate or get it wrong. Criminal sanctions should in no circumstances be applied to anyone without a proper trial and without guilt being established beyond all reasonable doubt. That is so deeply embedded in our civilisation and our culture that to do anything else would be to derogate from all our history. In those circumstances, I sincerely hope that the Minister will accept my amendment. As I say that, I am absolutely convinced that he will not. I beg to move.

Baroness Stern
I support the amendments of the noble Earl, my colleague on the Joint Committee on Human Rights, which attempt to set out what the Joint Committee on Human Rights would feel is the minimum standard to be applied before conditions are applied to someone that restrict that person’s liberty. Although the noble Lord, Lord West, does not think that the conditions are punitive, most of us might feel that they were if they were to be imposed on us, because it is hard to imagine what restrictions on liberty could be imposed that were not punitive. In those circumstances, it is appropriate that the person who will lose some aspects of his liberty has a right to various elements of a fair trial.

When the Minister replies, will he tell us a little more about the risk assessment process that has been mentioned a number of times? As far as I am aware, there are a number of risk assessment tools, none of which has very great validity. They are useful, but one could not say any more than that. If the Government are proceeding on the basis of risk assessment tools then the amendment proposed by the noble Earl is particularly important, because the risk assessment tools have flaws that could lead to great injustice. It would be very helpful to hear more on how the Government see this process of risk assessment and how some elements of due process can be introduced to protect the individual.

Lord Judd
I gladly support the amendment proposed by the noble Earl, Lord Onslow, and the noble Baroness, Lady Stern. This is another example of where we have to ask ourselves firmly whether we want a society that is about liberty and justice or whether we are drifting towards an authoritarian society in which those principles no longer fully apply. The provision to which this amendment refers is a serious infringement of liberty and a great interference with the individual, and it should not be lightly entered into. For those reasons, this amendment is important and I hope that my noble friends will take it seriously and respond appropriately.

Baroness Howe of Idlicote
I, too, should like to ask more about this amendment. Unless the Minister can tell us that these orders are subject to “beyond reasonable  doubt”, which is the test that applies in criminal charges, this completely different group of offences or alleged restrictions—I do not know what they are called—is not subject to the normal test that would be applied in most courts. That worries me a lot.

Lord West of Spithead
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.

21:45:00

Lord Thomas of Gresford
Do I understand the Minister to say that the evidence given by a witness could not be challenged by the person against whom the order is made? Surely that is an immediate breach of Article 6 of the convention covering fair trial. How can that be?

In any event, perhaps I may make this point. The Minister said that the purpose of the order may be to protect the offender himself. That does not appear in the Bill. The court has to be satisfied that the conditions in subsection (2) are met, the second of which is that he has,

“acted in such a way as to make it necessary to make a violent offender order for the purpose of protecting the public”.

It has nothing to do with protecting him.

So what does the court have to be satisfied about? It has to be satisfied about action; about what he has done. The only way in which it can be satisfied about action—what he has done—is on the basis of evidence, and the evidence must surely be capable of being challenged by the person against whom the order is made, otherwise an appearance in an adversarial hearing, as the noble Lord said, is meaningless. Then the court has to be satisfied that it is necessary to make the order and that the purpose of making the order is to protect the public, again using the wide expression that I have already criticised.

I totally support the amendments that have been tabled by the noble Earl and supported all round the Committee. I am sure that we will be discussing this matter further.

The Archbishop of York
I can understand anti-social behaviour orders being seen as some kind of civil law application, but the violent offender orders offer the possibility of creating offences. The unbelievable phrase “danger to the public” has been used, but I prefer “individuals or persons”, which is more realistic than “the public”. The standard that should always apply as regards the possible commission of an offence is that of the ordinary person on the old Clapham omnibus saying, “I am satisfied beyond reasonable doubt that a particular crime has been committed”. I find it difficult to simply say that we are going to use the civil standard when this person could be violent and commit terrible crimes .

Another thing I find difficult is what I call pre-emptive possibilities being put into legislation and the presumption that a person may commit a violent crime because someone has said X, Y and Z. This country has always run away from that kind of thing. If a crime has been committed, you would like the offender to be before these people, and simple threatening behaviour and language could be dealt with as a civil case, but here we are talking about the likelihood of endangering individuals and persons, and I do not understand why it should be dealt with as such. It might be because of a refusal to accept that the order has a punitive effect within it and so the Government are saying that it is not really within the criminal ambit.

For the sake of protecting the person who may be under the order and the persons or individuals who may be subjected to violent acts, I find myself persuaded that we must have a standard of beyond reasonable doubt, otherwise you can catch out many people.

Our doubt is not about magistrates but about the veracity of the evidence. There are people who can speak with great conviction and tell everyone, even under oath, that X, Y and Z happened; that is why in the courts of this land many people end up not being found guilty because of the veracity of the evidence. In Uganda, there was a terrible case I was trying, where the prosecutor simply said, “You must be guilty because Uganda has 11 million people, and they are not in the dock”. What kind of evidence is that?

It may seem more sophisticated using the civil standard but I, for one, question whether it will ensure the veracity of the evidence that we want to rely on. I am not satisfied. By simply saying, “The court must be satisfied”, you are putting magistrates under unnecessary strain. Let them be very clear what the evidence is and let them decide according to the standard. They know that people will come forward and say things. Is the Minister not aware that there are people who will say anything because they happen not to like your face?

Lord Mayhew of Twysden
I wonder whether the Minister can help me in my state of characteristic confusion. He said a few minutes ago that he will bring forward proposals that will provide the opportunity for P to appear before the court, but he sets his face against giving him the opportunity to cross-examine witnesses because that would be intimidating. The overarching requirement of the clause, however, is that the magistrates’ court shall be satisfied that conditions that are relevant are established. How can it be satisfied it is not allowed to hear the evidence of the complainant tested? And how can it be tested if cross-examination is not permitted?

Lord West of Spithead
To answer the noble and learned Lord, Lord Mayhew, first, the evidence that I was talking about that can be used in the application was hearsay evidence. That is indirect evidence, as noble Lords well know. For example, a police officer has evidence from a number of individuals whom he has talked to. Normally, where he has evidence additionally from the Probation Service, prison services, local government and so on, he and those agencies will be allowed to be cross-examined but the individuals who have been spoken to will not be able to be cross-examined because they will probably not be willing to appear in court. That was what was meant. Clearly the police officers can be cross-examined. The prison services, probation services and all the other local government agencies can also be cross-examined in court as the matter is being investigated. That is how the magistrates will be able to come up with their conclusion.

We all know of cases of mindless violence where people who have been identified as individuals who we should perhaps have been aware were a real danger to society have indeed gone on and killed people. Those cases are constantly being referred to in the media. This is aimed at stopping those things happening. It is not a case of three or four people in the local pub saying, “We don’t like Billy”; “Right, let’s get him”.

The Earl of Onslow
That is exactly what the Minister said. In the debate he said that people in the pub will complain to the landlord about being beaten up. He is now saying that is not the case. Which is it? Will pub gossip be taken into account or not?

Lord West of Spithead
I was taken slightly out of context there. The evidence will not just be gossip. I have said on a number of occasions—about seven, in fact; I wrote it down—that this will be to do with probation services, prison services and local government as well as all these other things. That is the basis on which the magistrates will take decisions. Perhaps this shows my simplicity, but I believe that if a magistrate were presented with mere gossip, he would jolly well say, “I’m bloody well not going to do this”. That would be my reaction if some defaulter came up before me, and I think they have enough common sense to do that.

As I have said, this is not the tidiest or nicest measure, but it is an additional arrow in our quiver that will help make the public safer and reassure them. There are a large number of people out there who are frightened of violent offences, even though we have reduced such offences dramatically, and therefore it is important to do this.

Lord Thomas of Gresford
I am sure that magistrates frequently address the police in the terms the Minister has referred to, although I have not personally heard it.

Suppose that a policeman comes into the witness box and says, “I’ve got statements. I have interviewed three people, and they say this is a dangerous man”; the defendant says, “But I’m a Muslim. I’m living in a white neighbourhood, and everyone hates me around there”, and that is put to the policeman. Where do we go from there? Do we ask them to go back and check that there is no racial or religious prejudice involved, or whether they have had a quarrel about the dog or the amount of noise coming from someone’s house? How is the individual who will be subject to these restrictions able to get justice when he cannot actually challenge the witnesses?

I have just been at a case in the Old Bailey where every witness gave evidence from behind a curtain with a voice modulator so that we could not hear how they sounded unless we put on earphones, which were not available—obviously—to the defendant in the dock. There are ways in which these things can be handled which are accepted as part of the tradition of justice in our courts. It is not necessary to bring forward these civil orders in order to rely on hearsay  evidence from witnesses who are not prepared to go to court under any circumstances, however well protected, to make their allegations in person and be challenged about them.

22:00:00

The Earl of Onslow
Let us have a crack at looking at the McCann case. In the Joint Committee, we considered that violent offender orders were not the same as ASBOs, and therefore that the McCann case probably did not apply. When the Minister said, “something bloody something”, I thought, “That’s Jolly Jack Tar talking if nothing else, not a government Minister”, but it definitely lightened the proceedings.

During the past 10 or 20 years, we have had a problem with police and what can be classed as “the usual suspects”. We have had a problem, certainly in two IRA cases, where the police thought that they had got the right sort of person, and even the criminal level of proof was established. But that was because of what can be called “the usual suspects”. So that part is not good enough. The Minister’s defence of there being no need for witnesses reminded me of a certain piece of land on the edge of a Caribbean island where people are seen in shackles wearing orange suits; in other words, it sounded like the Guantanamo Bay answer.

I am afraid that the Government’s response to the amendment has not even begun to be satisfactory. I hope we can come back to it on Report—and that the orders will be taken out of the Bill, because they offend me, the most reverend Primate, the Tory Front Bench and the Liberal Front Bench. The lovely noble Baroness, Lady Stern, is waving from the back, as is the noble Lord, Lord Judd. In other words, they offend absolutely everybody except the Government. That is a thoroughly unsatisfactory way to make law. It is time that the Government realised that we have had habeas corpus, trial by jury, the glory of common law and the protection of the innocent, and that we have not locked people up. They must stop behaving as if that tradition is alien to us. On that sour note, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 155 not moved.]

Clause 151 agreed to.

Clause 152 agreed to.

Lord Bassam of Brighton
I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at 10.04 pm.