Clause 5
Serious Crime Bill [Lords]
9:00 am
Douglas Hogg (Sleaford and North Hykeham, Conservative)
Forgive me, but I think that that point reinforces my argument. I am perfectly prepared to accept that that is true in the case of the McCann judgment, although I have studied it not on the question of strict liability, but on the question of the standard of criminal proof. I am perfectly willing to accept that the hon. Gentleman is right. I do not like cases of strict liability. They are better than cases of absolute liability, but not much.
Let us say that the proof of antisocial behaviour for an ASBO is strict liability. First, I do not like it. It is a proposition that I do not wish to extend to serious crime prevention orders, especially as their scope is much greater than the ordinary ASBO—they are referred to colloquially as super-ASBOs. The ordinary ASBO is relatively tame in contrast to the powers contained in clause 6. I do not wish to impose strict liability. That is exactly what I am arguing against, notwithstanding the fact that the Lords may have approved it in McCann. We are the House of Commons. We have a right to set the law for the courts to interpret, and it is interpreted in accordance with the corrections we give, subject to the convention on human rights.
I want to provide that, before the order can be made, the court must have regard for knowledge, intention and motive. It must have regard for at least knowledge and intention—I think motive, too. Otherwise there is strict liability. The effect of my amendment would be to strike out the part of the clause that directs the court to ignore those considerations, and incorporate them, if necessary, as preconditions. I might not persuade the Committee, but that is another matter. I believe that that is what we ought to do and if we do not do it here, I hope that it will be done in another place.