Clause 5
Serious Crime Bill [Lords]
9:00 am
Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel and South Downs, Conservative)
I agree with my right hon. and learned Friend that it is very early in the morning to be considering such legalistic matters, particularly when some of us do not have his great legal expertise. Nevertheless, I think that he has drawn attention to an important matter relating to the Bill.
I would particularly like to focus on clause 5(3) and its relationship with the amendment that my right hon. and learned Friend proposed to subsection (2). As we know, a person does not have to have committed or even been convicted of a serious offence to be eligible for a serious crime prevention order; they can receive an order if their conduct was likely to facilitate such an offence. In an earlier discussion on the measure, my right hon. and learned Friend expressed his concerns about that concept of facilitation and the extent to which it broadens the application of the measure. However, an additional concern is that the definition of conduct under clause 39, which is the interpretation clause of part 1, can “include omission and statements.” Clause 5(3) states that a court must ignore the person’s intentions. In other words, he does not actually have to intend to facilitate a serious offence or even believethat his actions would do so. Effectively, therefore, clause 5(3) creates an offence of strict liability.
A defence is provided in the sense that clause 5(3)(a) reverses the burden of proof. We must consider the extent to which it is acceptable that someone who has not committed a serious offence, but whose conduct is said merely to have facilitated the offence—