Clause 83

Criminal Justice and Immigration Bill – in a Public Bill Committee am 5:00 pm ar 27 Tachwedd 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Violent offender orders

Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

I beg to move amendment No. 325, in clause 83, page 57, line 20, leave out ‘the public’ and insert ‘a person or specified persons’.

Photo of Edward O'Hara Edward O'Hara Llafur, Knowsley South

With this it will be convenient to discuss the following: Amendment No. 326, in clause 83, page 57, leave out lines 26 and 27 and insert

‘any specified members of the public in the United Kingdom’.

Clause stand part.

Amendment No. 327, in clause 86, page 59, line 35, leave out ‘the public’ and insert

‘a person or specified persons’.

Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

My amendments are probing amendments, although they are a little radical. At least one of them would wipe out clauses 83 to 102, which I thought might appeal to my hon. Friend the Whip, as well as to other members of the Committee, because it would save time.

I want the Government to justify and explain how they will use violent offender orders. As with earlier amendments, I tabled these on behalf of Liberty, which has raised several concerns. It is not that I am trying to get rid of violent offender orders, but Liberty has made the case that non-molestation orders could be used as an alternative approach. However, that amendment has not been chosen for discussion, although it will be part of the package of proposals that I shall be speaking about.

Photo of David Heath David Heath Shadow Leader of the House of Commons

The hon. Gentleman knows that I agree that the extension of non-molestation orders might prove an acceptable alternative to, or substitute for, the clause. Does he agree that it would be helpful if the Minister could say whether the Government even considered such a proposal before they drafted this new class of order, which seems to many of us superfluous?

Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

The point has been made and I hope that, when the Government respond in the clause stand part debate, they will at least say how they view the non-molestation order.

The proposed violent offender orders continue the trend of creating civil orders, a breach of which would become a criminal offence. I share Liberty’s view that the orders could become too broad in their application and breach some of the conventions that we are rightly tied up to. Liberty also makes the point that, if the order is too broad, it is more likely to be breached. A person can get caught up in just too many things, instead of the order covering something specific so they know where they are. It said that extraordinary scope will be available for the imposition of restrictions on individual freedom under the clause.

Liberty is saying that the order is unnecessary in some ways because the Criminal Justice Act 2003 provides for anyone convicted of specified offences, punishable by more than 10 years’ imprisonment—violent offences—will be given an indefinite period of imprisonment for public protection and, once released from prison, will be on licence for a minimum of 10 more years. After that, they can apply to the Parole Board for termination of the licence, but the Parole Board might not decide to do so if it regards the person as such a risk. If it does not do so, the person would still be subject to conditions and to recall. The necessity of the orders is in question.

I should like a response from the Under-Secretary about a good point that Liberty makes about retrospection. It seems that, at least initially, the orders could be used retrospectively. Prisoners coming out of prison who were sentenced under the old system may suddenly find orders applied to them under this legislation. That would be a retrospective application of the provision. Again, that could put us in breach of our international legal obligations. Will the Under-Secretary say something about whether that is the intention? That may be justified, but I am not entering the argument on that point: I am just saying that there are problems with retrospection, if that is what is intended.

Liberty says that the provision raises the possibility of the order being applied for at any time and thinks it more appropriate for there to be a window of time, particularly when a licence is coming under review. That is the time for the orders to be applied for, if they are going to be in place at all. There should not be an open-ended approach, meaning that they could be applied for at any time.

Liberty also says that the danger with the orders lies in a risk assessment taking place that identifies someone as being a “risk of serious harm”, without needing to identify a particular person or persons that they are a risk to. That is where the non-molestation orders would come into play, because they would specify the individual. However, the provision becomes too broad, in Liberty’s view, when it relates to risk to the public.

I have mentioned Liberty’s main points as succinctly as I can. There are questions on this set of clauses for the Under-Secretary to respond to.

Photo of David Burrowes David Burrowes Shadow Minister (Justice) 5:15, 27 Tachwedd 2007

I shall also speak to clause stand part. I endorse the comments of the hon. Member for Leyton and Wanstead, particularly in relation to seeking vainly, on one hand, to restrict the breadth of the order, while  on the other hand—although a particular amendment was not selected—seeking to remove it completely from the Bill. On both those counts, I endorse his approach.

On 20 April 2006, the then Home Secretary indicated that there was a strong case for the introduction of violent offender orders along the same lines that have proved effective for sex offenders. The issue is primarily whether that strong case exists. Certainly, a long and extended family of civil orders is being built up, whether they be banning orders, ASBOs, sex offender prevention orders, foreign travel orders, risk of sexual harm orders or control orders. Indeed, it may be more appropriate to follow the title of the Home Office review with a rebalancing the criminal justice system in favour of the law-abiding majority order. Perhaps that would be the best way of grouping everything.

The key question is whether the provision is needed. The hon. Members for Leyton and Wanstead and for Somerton and Frome, made the point that there are public protection offences on the statute book: the Criminal Justice Act 2003, the non-molestation orders in the Family Law Act 1996 and the Domestic Violence, Crime and Victims Act 2004 all contain elements of public protection.

Many respondents to the Government’s review were sceptical about the need to legislate, but how do the Government aim to deal with the perceived problem? Their response appears to be inconsistent. On the one hand, they say that there remain gaps into which some offenders may fall. The Government say:

“For example, some may have been convicted of a schedule 15 offence before April 2005 and therefore not eligible for the public protection sentences. Others may not have been assessed as sufficiently dangerous at conviction, but their risk has increased since that time.”

I therefore invite the Minister to state clearly how many people fall into the gap that needs to be plugged. The indication is that as a result of the provision, there would be some 100 orders each year. Of those 100 in the gap, how many would not have been party to the conviction rate before April 2005?

Further on, the Government’s response suggests that there is a gap in public protection sentences. It talks the language of a sentence—indeed, of a punitive sanction and a criminal sentence. However, further on, it makes it clear that

“a Violent Offender Order is not a punishment but a civil preventative measure.”

It continues:

“The VOO is not imposed as an additional punishment for a Schedule 15 offence,” despite the Government saying that they needed to plug the gap in public protection sentences. Even at the early stage of their response to the public consultation, there appears to be inconsistency about the nature of the order, which perhaps is inherent when one seeks to bring in a civil order in a quasi-criminal manner.

The clause mirrors other civil orders. Indeed, one could enter the debate during the passage of the Serious Crime Act 2007 into the record, sit down and carry on. That would be an easy but perhaps too brief way of doing it, and we would not go to the depths and lengths to which my hon. Friends, with great consideration, dealt with that Act.

I highlight three points. The hon. Member for Leyton and Wanstead made the point about the order applying at any time. The concern is that the order will be applied for, not at the conclusion of the sentence, when it has had its true effect, in order to determine whether there is a continuing public risk at the appropriate time, but at any time. The court will be able to determine the issue before the sentence has had an effect, which suggests that the violent offender order will at best add unnecessarily to a criminal sanction, and at worse circumvent and undermine the criminal justice process. That process is the crucial part of the order, and the one that raises most concerns.

The Minister will no doubt want to emphasise time and again that the provision is preventive not punitive, but subsection 1(a) states that the order

“contains such prohibitions, restrictions or conditions as the court making the order considers necessary.”

The conditions and examples of those prohibitions, restrictions or requirements were made explicit in the 2007 Act, so will the Minister explain why they are not made explicit in the violent offender order aspect of this Bill? Those requirements could affect an individual’s working arrangements, communication and association with others, access to and use of certain premises, travel, financial property, and business dealings or holdings. The liberty of such an offender could be circumscribed.

I do not want to go into too much detail about the preventive and punitive elements of the debate, but perhaps the orders could be made in line with community orders, which can contain preventive and punitive elements, but which are nevertheless dealt with in the criminal courts and with appropriate burdens of proof. No doubt we will return to that matter during our discussions on amendments Nos. 364 and 365 when we can debate the appropriate burden of proof—whether it is a civil or criminal burden.

Key to the process are the length of orders, which have no time limit that could be renewed indefinitely, and the resources needed to make such an order effective. It has been indicated that the police will be responsible for applying for, monitoring and enforcing an order. That will place a burden upon the police’s existing activities. Will the Minister confirm whether existing resources will be made available to deal with the effectiveness of such orders?

The bottom line is that there is no convincing evidence that the orders are necessary. Certainly some violent offenders are prevalent after sentencing and the public need protecting from them. However, the focus should be on ensuring that the criminal sanctions and sentences are effective and that the public are fully protected, rather than on establishing new legislative processes that blur the distinctions between the civil and criminal fields and between fundamental rights.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I shall be brief because the hon. Members for Leyton and Wanstead and for Enfield, Southgate have covered most of the points that I wished to raise.

Liberal Democrat Members have had long-term anxieties about the proliferation of injunctions against future offending. This is just the latest example of the way in which increasingly the Government see such injunctions as a means of reducing offending without having recourse  to the criminal courts. It is hard to see their justification, because other measures are available. I repeat my request to the Minister concerning new clause 52, which was not selected for debate, but it is relevant to the clause stand part debate because it would provide an alternative way in which to address a problem identified—presumably—by the Government. However, it would do so by using existing laws and by extending provisions that are already on the statute book, and without increasing—yet again—the number of effectively non-criminal sanctions available for dealing with criminal behaviour, which is what most concerns us. Has the Minister considered that option, or indeed any other options? What is the distinctive nature of the new orders that makes them preferable to alternative disposals, available through existing practice or the courts, when dealing with those who break the law? What is wrong with the old-fashioned method of indicting them and letting a jury and a court determine the correct disposal?

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I thank the Committee for continuing with the constructive way in which it deliberated the Bill this morning. From the start, I accept that there is a difference between the Government and the hon. Members for Somerton and Frome and for Enfield, Southgate. I do not try to minimise it. All I want to do is to put the Government’s case and the alternative point of view in respect of the use of civil orders. I preface my comments with that because there is a very real difference—I understand that—but it is important to make the case again for the use of civil orders, notwithstanding the difference between us.

If we consider the use of civil orders—antisocial behaviour orders are the ones most often referred to—I think that generally speaking they have been successful. In fact, the cry about the use of civil orders in my and other people’s constituencies is not that we should not have them because they are civil orders but that they want more of them. They do not argue about whether antisocial behaviour orders are civil or criminal orders. They just see them as a useful way to control antisocial behaviour.

Similarly, football banning orders have been hugely successful in controlling behaviour, and they are civil orders. Sexual offences prevention orders—again, very successful—control sex offenders. Civil orders make a real difference to preventing harm in our communities and, therefore, to protecting the public.

The hon. Member for Enfield, Southgate mentioned again the debate that we had on the Serious Crime Act 2007. If people read it, they will find that it, too, involved a clash of views, opinions and deeply held beliefs. None the less, views and opinions were logically argued and, in the end, tested with a vote. People disagreed. The serious crime prevention orders that were passed during that Bill are another example of a civil order that we think will prevent crime.

The hon. Gentleman says, “The Minister will no doubt say that the orders are not punishments for past offences but preventive measures.” Of course that is the case that I will make. We are not saying that somebody who is a qualifying offender should be punished again for an offence that they committed. We are saying that if the chief police officer thinks that by going to the court  he can prevent harm that may occur in the future, either to an individual—I shall come to the points made by my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome—or to the public, making this measure available to the courts, where there is a right of appeal, will be of benefit to the community.

In answer to the hon. Member for Enfield, Southgate, we expect about 100 such orders a year. We are not sure exactly what the breakdown of the orders is, but that is our best estimate at present.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 5:30, 27 Tachwedd 2007

Subsection (3) sets out the specified offences: manslaughter, offences under the Offences against the Person Act 1861, wounding with intent to cause grievous bodily harm, malicious wounding and attempted murder. If the Minister does not think that those offences either under common law or under statute are not sufficient to prevent people from committing those crimes, why does he think that the imposition of a violent offender order will have any more effect?

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

The argument is that the specified offences laid out in subsection (3) are the offences for the purposes of the order. People will have been punished for those offences through the criminal justice system. They will have been given prison sentences and perhaps allowed out on licence at the end of their prison sentences, depending on what happened. To qualify, the offender must have committed one of the specified offences, but this is not about punishing those offenders. Of course, it is about deterring people from committing such crimes, but the orders are for people who, in the eyes of the court, still pose a risk to others when the various punishments that they have been given for committing those offences have finished. The hon. and learned Gentleman will know that violent offender orders cannot be enforced while offenders are subject to a punishment imposed by a court. I reiterate that these offenders will already have been punished for committing a specified offence; the measures are about preventing future harm.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

It is probably entirely my fault, but I do not think that the Minister quite understood my question. Let us assume, as we must, that the specified offender has committed a specified offence in the past. On that basis, he is brought within the remit of the violent offender order system, and the court, if it is satisfied that it should do so, can impose certain restrictions on his movement and with whom he may associate. If he is sufficiently careless or mindless of the law, or knowledgeable about the law and prepared to breach it, to the extent that he will commit a specified offence, and has in the past, why do the Government think that he will pay the slightest attention to a violent offender order that seeks to prevent him from going to a particular address or associating with certain people?

If someone is minded to commit one of the serious offences in subsection (3), he will not be bothered by a violent offender order. The Government will fill our prisons with people who have breached these orders, as has happened with ASBOs. A great many people have been sent to prison for up to five years for breaching ASBOs, not because they fall under the categories in  subsection (3), but because they are mentally ill, alcoholics or substance abusers. Such people have social or other issues that need to be dealt with, but not necessarily by a term of imprisonment. That is a different issue, but the same principle applies.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I did understand the hon. and learned Gentleman’s point, and apologise if I did not answer it particularly well. I thought that I was explaining that the court would make a judgment on whether making someone who has been found guilty of a specified offence subject to an order under subsection (1) would prevent future harm and protect the public. That is why we have made the breach of such an order a criminal offence. If someone breaches a violent offender order, they could be subject to a term of imprisonment of up to five years.

I suggest that whether or not someone has been found guilty of a specified offence, if a court told them that they could not associate with certain people or go to a certain place because the court believed that they might cause harm to an individual or others, they would take note of that order if they were threatened with imprisonment if they did not. I take the hon. and learned Gentleman’s point about filling up the prisons, however. We think that a small number—about 100 people—might breach orders and be subject to a term of imprisonment, but that is a price worth paying to protect the public from certain individuals.

On the point made by my hon. Friend the Member for Leyton and Wanstead, the conditions linked to a violent offender order will always be linked with the specific risk posed by the individual. They will be a matter for the courts to determine, and of course they will need to be proportionate as the court will have to act in a way that is consistent with the Human Rights Act. The procedure will be exactly the same as that which operates for a whole range of other civil orders that the Government have introduced, whether antisocial behaviour orders or others.

The problem with just using non-molestation orders instead of violent offender orders would be that they can be used only to protect named individuals or individuals known to the person in question. Non-molestation orders may therefore not be able to protect individuals not known to the person subject to the order. Of course, non-molestation orders do not apply to the public. A person who is made the subject of a violent offender order will be someone who is believed to be a danger to the public. In that respect, a non-molestation order would not be appropriate and could not be used. I loved what my hon. Friend the Member for Leyton and Wanstead said—it was a bit of a radical proposal. I think that it was the nuclear option. He wanted the whole of part 8 struck out of the Bill.

Violent offender orders are intended to build on and complement other public protection measures, including determinate extended and indeterminate sentences, which were introduced in the Criminal Justice Act 2003. Whereas those measures are applied at the point of sentencing, the principal aim of the violent offender order is to protect the public from the most dangerous violent offenders who still present a risk of serious, violent harm at the end of their sentences, when there is no other risk management mechanism in place. We are introducing the orders to manage the risk of the most  serious violent offenders, who fall into three main categories: individuals who were sentenced for a serious violent offence prior to the introduction of public protection measures in April 2005; individuals whose risk level was not considered high enough to warrant an indeterminate or extended sentence at the point of conviction, but who are now deemed to be at risk of causing serious violent harm, and individuals whose determinate extended or indeterminate sentences for a qualifying offence has expired but whose behaviour has come to the attention of the police as being high-risk. By closing those current gaps in supervision, violent offender orders will be an essential risk management tool in addition to existing public protection measures.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

The Minister refers to gaps in supervision. Is it not true that the genesis of the violent offender order was the tragic John Monckton case, which caused great concern across the House and among the general public? The response to that was the initiative of the order. Is not the gap in supervision the result of a gap not in legislation but in the resources going to the probation service to enable the proper face-to-face supervision that the public and victims should ordinarily get through a sentence imposed by a court? Should not the focus be on proper supervision, licence provision and the like in sentencing, rather than on extra legislation?

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I have tried to make the point that violent offender orders are supposed to be used where there is no other supervisory arrangement available. They are to fill that gap——for when somebody has finished their sentence, licence conditions are over and there is nothing else left with which to supervise or look after somebody. There will be a violent offender order when a chief police officer believes that an individual poses a risk, and takes the matter to the court. It will be when everything else has finished and there is nothing else left. There may be some people who are convicted offenders, who have committed specific offences and who have acted in a way that suggests that they may pose a danger to other individuals or to the public. This provision fills that gap and that is why we have introduced these violent offender orders.

Photo of David Burrowes David Burrowes Shadow Minister (Justice) 5:45, 27 Tachwedd 2007

I hear the point that it is about when supervision has ended, but is not the issue less about the fact that the supervision period has ended than that the quality of supervision is lacking? We need to look at how, within the time available, we can have higher-quality and properly carried out supervision. That brings us back to the Monckton case where that supervision was identified as lacking. We need to deal with that gap, rather than saying that the time has ended for licensed supervision, and moving on to another order.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

That is a reasonable point—we must ensure that any supervisory arrangements that are in place for somebody who poses a risk are of high quality. It is a fair point, and one that we are all determined to improve on. However, when the period of licensed supervision is over, there is a gap. Therefore, whatever the quality of supervision—and one would hope that it would be such that in future there will be fewer people who pose a risk when it is finished—there  still may be a problem with some individuals. The violent offender order is designed to fill that gap. I take the hon. Gentleman’s point, but it does not mean that violent offender orders are not necessary in any circumstances.

We have consulted a wide range of stakeholders in drafting the provisions and violent offender orders have received broad support. They are intended to protect the general public, or any particular member of the public, from the risk of serious physical or psychological harm caused by an individual committing one or more specified serious offences. The orders will be made on the basis of an up-to-date assessment of risk at the end of an individual’s sentence. Violent offender orders will enable the court to impose negative requirements, such as prohibitions, restrictions or conditions. The conditions of an order will be determined on the basis of risk, and imposed only when a court is satisfied that they are necessary to manage the behaviour of an individual in order to protect the public from the risk of serious violent harm. A violent offender order will be effective for at least two years, unless it is deemed appropriate to renew or discharge it before this time.

I repeat that I do not believe that non-molestation orders are an adequate substitute for violent offender orders. Non-molestation orders can be made by courts to protect an individual from molestation by a known person. That person must essentially be within the family sphere. The individual requiring protection will always be connected to the offender, for example a current or former spouse, cohabitant or relative child. The key point is that non-molestation orders must be used specifically to protect named persons. Currently, they can only be only be applied for by the person that is at risk of harm or on their behalf by a person who is associated with the offender. My hon. Friend the Member for Leyton and Wanstead suggests that a chief police officer should be able to apply to court for a non-molestation order for the benefit of an individual. There are undoubtedly wider benefits to such an amendment, particularly as it would mean that additional protection could be granted to individuals who are either unwilling or unable to apply for a non-molestation order themselves—for example, when an individual is too afraid to apply for an order.

I say to my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome that while the non-molestation order is not something that could be used instead of a violent offender order, the point made by the hon. Member for Somerton and Frome about others being able to apply for non-molestation orders is an idea that could be explored further. It is an extremely valid point and something that I am willing to look at to see how it could be taken forward.

The purpose of the violent offender order is to provide a means of continuously protecting the public from the most dangerous violent offenders who still present a high risk at the end of their sentence. It would be used when there are no other means for public protection authorities to manage that risk.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

The Minister says that breaches of the order would lead to some 20 additional prison places being required, but the National Association of Probation Officers estimates that around 3,000 additional places will be required in any one year. There is a big difference  between 20 and 3,000, so is not an independent assessment of the provisions necessary to clarify accurately the potential increase in the prison population to provide confidence that there is capacity to deal with violent offender orders? The point also relates generally to other parts of the Bill.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

There is a huge discrepancy, as the hon. Gentleman said. We used the template of sexual offences prevention orders to guide us, and we made the best estimate. The idea is not for someone to breach the orders. They are preventive orders and I do not believe that many people will breach them, but we must have a sanction. We have used our best estimate and other civil orders to guide us. We estimate that 100 such orders might be made, requiring approximately 20 prison places. We will continue to keep the matter under review.

I have told my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome that I want to look at the idea of who can apply for non-molestation orders, and I hope that my hon. Friend will withdraw his amendment.

Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

Notwithstanding the nuclear nature of one of the amendments, they are probing amendments, and provided an opportunity to discuss violent offender orders and their implications. I am grateful to the Minister for his explanation. I am also grateful to the Minister for agreeing to explore the possibility of extending non-molestation orders and who can apply for them. I am pleased that he picked up that point. I noted that the Minister said that the provisions of the order imposed will be specific and proportionate. That will fall to the authorities, and it is important that they take that on board.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Obviously, we intend to issue guidance on clause 83(1)(a), and it will make it clear that the orders must be proportionate. My other point is that the courts must act in a way that is consistent with human rights legislation.

Photo of Harry Cohen Harry Cohen Llafur, Leyton and Wanstead

I appreciate that as well. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Motion made, and Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 7.

Rhif adran 5 Nimrod Review — Statement — Clause 83

Ie: 9 MPs

Na: 7 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly agreed to.

Clause 83 ordered to stand part of the Bill.