Clause 5
Serious Crime Bill [Lords]
9:00 am
Douglas Hogg (Sleaford and North Hykeham, Conservative)
Thank you very much, Mr. Bercow. Nine o’clock is an awfully early hour for me—I am not used to this. However, I have to get my mind round it. I am trying to remember what I was seeking to do when I drafted the amendments. I think that I remember.
The group has a twofold purpose. The first is to delete subsection (2) with the object of striking outthe facilitator as somebody who is caught by the provisions. Secondly and differently, subsection (2)(b) will direct the court to ignore what lawyers would describe as the mens rea. For the purposes of Hansard, it is mens rea, not “mens rear”. That mistake has sometimes occurred. As I have just been to a puppy show, it is all the more likely to occur, but that is by the by—[Laughter.] It is 9 o’clock, Mr. Bercow, I am so sorry. The purpose is to direct the court to the ordinary standards of mens rea.
I will deal with the two proposals, seriously. First, I have very grave doubts about the question of catching the facilitator as a matter of principle, which I have spoken of before, because the facilitator is not necessarily committing a criminal offence known to the law. He or she might commit such an offence because facilitation may amount to aiding and abetting and could be part of a conspiracy. I concede that, as a matter of law, the facilitator might be a person who is committing a substantive offence under existing law, but that is not necessarily so.
I am uneasy about including the facilitator as somebody who can be caught by the full ambit ofthe serious crime prevention orders, especiallywhen the concepts of intentional and wilful acts are not incorporated as necessary preconditions to the facilitator being caught, as is now the case, which is why I want to remove the facilitator from the scope of the order-making powers. That is the first of the purposes reflected in the group of amendments. If I cannot win on that, I would like to direct the court to have regard to the mental state of the facilitator when determining whether it is right to make the necessary or allowed orders.