Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I beg to move amendment 82, in clause 63, page 37, line 31, leave out subsection (4).

Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss the following: amendment 443, in clause 63, page 37, line 34, leave out subsection (5).

Amendment 444, in clause 63, page 37, line 37, leave out subsection (6).

Amendment 83, in clause 63, page 37, line 40, leave out paragraph (b).

Amendment 445, in clause 63, page 38, line 9, leave out subsection (9).

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

Again, the debate can be reasonably short. Our amendments are intended to extract from the Government some understanding of the thinking behind the age limits and the composition of gangs. In case anyone gets over-excited, the amendments are probing.

The Government are providing that, for the purposes of the clause, those who commit qualifying offences or are suspected of committing qualifying offences—gang members—should be between the ages of 11 and 30. The applications can be made if—going to subsection (9), which is affected by amendment 445—the qualifying offence is committed by two or more persons.

Why did the Government choose those age limits— 11 at the younger end and 30 at the older end? The right hon. Member for Knowsley, North and Sefton, East and the Minister may have constituency experience of unattractive people misconducting themselves in gangs who may be over the age of 30. They may be egging youngsters on, as gang leaders who are off the balance sheet and careful enough not to be seen on the ground but who, none the less, may be the controlling minds of such gangs. I appreciate that if a person is under the age of 11, they are close to the age of absence of criminal responsibility under the law. None the less, I think that the Government may shut themselves out of an avenue if they think that the regime under clause 61 and the following clauses is a good one. The age group will be limited to between 11 and 30, albeit that I accept that most gangs are probably of that age group; certainly, when I have visited prisons—I think, 50 or so in the past two and a half to three years—most of the residents who are there for gangland-related offences are of that age group.

Tim Boswell (Daventry, Conservative)

Does my hon. and learned Friend agree that it is a problem where before the order is made, it has to appear that the majority of persons in the group are in the age group? Given that there is unlikely to be any formal, let alone recorded, structure, it will put a difficult evidential test to work out how many people there were, and who was the numerator and who was the denominator.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

My hon. Friend has described the problem much more neatly than me. He has enabled me to cut short my remarks by some measure, which is a happy thing for the hon. Member for Wrexham. The Whips  could be submariners—the silent service. Occasionally they pop up above the surface and fire off something, and the hon. Member for Wrexham has just done that. Returning to my point, my hon. Friend and I have described the issue, which now requires an explanation from the Government.

On a further point, I may be misleading myself that I have properly read subsection (9), but I want to be sure that, where it states that the qualifying offence must be committed by two or more persons, it is sufficient for the purposes of subsection (2), which will give the JP the power to make an order if they are satisfied that there are reasonable grounds for believing that the relevant conditions in subsections (3) to (8) have been satisfied by one person. It may be that it is too early in the morning for my brain to engage properly with the matter, but I need to have the numbers sorted out. Does the court need only to be satisfied that one person has committed a relevant offence—albeit that they are a member of a gang of two or more—or is there something else that I have missed through my lack of acuity?

David Howarth (Cambridge, Liberal Democrat)

I have little to add to what the hon. and learned Gentleman has said, except to point out that his last point relates to the failure of the Government to take on the whole reform of the law on murder. Dealing with secondary parties to murder was originally part of the Law Commission’s task, and the Government have abandoned that effort—although, given the reaction to the commission’s proposals, perhaps it is not quite as surprising as what else happened.

Like the hon. Member for Daventry, I am slightly worried about exactly how the magistrate will approach an application where the conditions are so detailed—the person involved has to be aged at least 11, but under 30, at the time of the offence. It does not say “appears to be” or “would, on reasonable grounds, we believe to be”; it says “are”, which seems too precise. Although subsection (2) will allow a JP to make such an order, if they are satisfied that there are reasonable grounds for believing that the conditions are fulfilled, the conditions tend to be precise, rather than slightly vaguer, which would be more appropriate.

More than that, there is a problem with the definition of “gang”, which looks arbitrary. Why is the cut-off age 30, and not 31 or 29? To pass this on rationality grounds, the Government at least need some evidence of the nature of gang crime and the age of the people involved. Like the hon. and learned Member for Harborough, I visit prisons, and I agree with him that most of the people involved in such activity are in their 20s or younger, but some gangs, especially the more organised ones involved in drug dealing, include slightly older people. I am worried, therefore, about why the cut-off is as it is.

Jeremy Wright (Whip, Whips; Rugby & Kenilworth, Conservative)

I seek your guidance, Mr. Cook. My point relates to clause 63(8), to which no amendments have been tabled. Do you intend to conduct a stand part debate? If so, would you prefer me to raise my point then, or now?

Frank Cook (Stockton North, Labour)

I am inclined to request that any stand part comments be made at this time, because we are discussing four subsections, at least. Now is the moment, if the hon. Gentleman wants to take it.

Jeremy Wright (Whip, Whips; Rugby & Kenilworth, Conservative)

Subsection (8) deals with one of the conditions for the making of an investigation anonymity order. The first part of the subsection is perfectly straightforward and sensible: that the person in question be able to provide information of assistance. However, paragraph (b) causes me some concern, so I would be grateful for some clarification from the Minister. Paragraph (b) states that the person in question should be

“more likely than not, as a consequence of the making of the order, to provide such information.”

It is hard to conceive of an individual who might become a witness in proceedings, who would not be more persuaded to give information if given anonymity. What is the purpose of paragraph (b)? It seems to me that there are two possible approaches: the Government could say either that all those who wish to have an investigation anonymity order, in the context of the other conditions in the clause, should be able to have one, or that only those who need such an order—those who would not give the information requested without such an order—should be covered.

Tim Boswell (Daventry, Conservative)

Is not the problem with subsection (8) that it puts in place an objective test, whereas clearly it is the wishes and intentions of the potential witness that are relevant? If there is to be an objective test, will it not need to be argued over in court subsequently, because there will be no evidence either way for whether it was better? As often seems to be the case to me, as a lay person in the legal process, we could end up arguing again about whether process has been fulfilled, without making any progress on the substance of the matter.

Jeremy Wright (Whip, Whips; Rugby & Kenilworth, Conservative)

I am not sure that I agree entirely with my hon. Friend. Whatever way it is done, this is a subjective test, because it is all about whether the person in question, who could provide information, would be willing to do so, if certain conditions are fulfilled and help offered. Currently, the subsection states that the order would be available if the person would be more likely to provide information. That is a question about whether that person is more persuaded. However, it seems to me that that test could easily be met. Everyone would be more persuaded to give evidence if given anonymity. What is the utility of the subsection, therefore, and what lies behind it? Why, if they have done so, have the Government concluded that that is a better approach than saying that such orders are available only to those who would not otherwise give useful information?

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I shall try to deal with that latter point first. I am sure that the Committee will agree that it would not be desirable to spray around investigation anonymity orders willy-nilly. We all have concerns about anonymity. The purpose of subsection (3) is to make the point that if such an offer of support and assistance at an early stage persuades somebody to give evidence that might lead to a conviction for homicide in a gun-and-gang-related murder, for example, that makes it worth while to allow anonymity, which is always a compromise in the criminal justice system.

It may be that that person, because they are offered an anonymity order at an early stage, does not have to give evidence at the trial. The evidence that they offer might lead to the finding of the weapon, and forensic evidence might then be enough to tie the weapon to the individual who committed the crime. The person who comes forward, reassured by an investigation anonymity order, will not necessarily have to give evidence at the trial. They might then be able to remain anonymous, having assisted in bringing to justice a serious criminal who might not otherwise have been brought to justice. That is the purpose. We would not seek to make more investigation anonymity orders than were necessary to assist people to come forward with evidence that might help solve crimes. It is essentially a reassurance.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

There is a great deal in what both my hon. Friend the Member for Rugby and Kenilworth and the Minister have said, but there may be a confusion in the Minister’s mind. She partly answered the question, but she used the word “evidence”. The subsection uses “information”. There is a world of difference between information and evidence. That may sound overly technical, but it is clear to us that there is a real distinction.

I rather agree with my hon. Friend. If the Minister does not want to spray around investigation anonymity orders, we need higher hurdles or stricter tests in order to prevent that. Surely it would be better and in line with the Government’s policy—I think that my hon. Friend would agree—to use what I call an “unless” test rather than the balance of probabilities test outlined in subsection (8).

Under such a test, the person specified in the order would have to be able to provide information that would assist the criminal investigation, and it would have to be the case that they would not give it unless the order were made. We then come to the discussion about the distinction between information and evidence, but surely, if the Minister is right about not wanting to spray the orders around, we must not give them automatically: “All right, I’d rather have one, and then I’ll be very helpful.” We need to be disciplined about it.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I understand the point that the hon. and learned Gentleman is making. I probably did mean to say “information” rather than “evidence”. We are talking about the early stage—possibly the very early stage—of an investigation into a serious crime. Information may appear to be important evidence when it is given and end up not being important at all by the time the investigation is completed. We are talking about information that might end up as evidence. I accept that point.

In that sense, it is a matter of pragmatism for the investigators—the police, in most instances—to follow their investigatory prowess in getting what information they can in a particular set of circumstances. We can be pragmatic about it because we are discussing not trials but investigations, which might or might not lead to charges, justice being done and individuals who have committed homicide being caught. We hope that they will lead to those things, but they might not. We do not need to start applying at that early stage the kind of tough judicial test that one would expect to be met in trials.

We are trying to assist those who have information to feel able to come forward with it and give it to the police. An assurance from the police that their anonymity will be retained may facilitate that process in the circumstances of gun and knife homicide in gang-infested hotspots where we know that there is a problem. Those are particular circumstances, and we need to retain pragmatism on the part of the police. Those of us who have been involved in trials of various kinds should not become too legalistic about precisely what the test ought to be. We are simply trying to reassure those who have information that might be relevant to a gun or knife homicide in a gang-infested area, to come forward and give information that they otherwise might not provide. I believe that we should be relatively pragmatic about that.

Jeremy Wright (Whip, Whips; Rugby & Kenilworth, Conservative)

The Minister is broadening out my point beyond where I intended it to go. I am asking what subsection (8)(b) adds. I do not suggest that an investigation anonymity order should be available to everyone whenever they want it, because the rest of the clause deals with other restrictions on the issuing of such orders. It is hard to conceive of anyone who would not be more likely to give information if they have anonymity than if they do not. I wonder why we need the subsection.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

Most people might prefer to have anonymity than not have it, but there are some tough, robust characters out there—we have all met them—who are willing to come forward at any time if they feel that that will help to rid their area of what they acknowledge to be a problem. This measure might not make a difference to such individuals, who would come forward anyway. I do not believe that it is a killer one way or the other—if you will forgive the terrible pun, Mr. Cook.

Let me deal with the point made by the hon. and learned Member for Harborough who tabled the amendments, and by the hon. Member for Cambridge about the strange definition of “gang”. That is an attempt to define a gang in a way that, although it appears odd on first reading, is based on evidence and seems to work as well as any other way.

Police working in these areas know from intelligence and their own experiences what is going on and who these people are. Analysis of 770 known gang members across London, Liverpool, Manchester and Birmingham—four of the hot-spot areas where this kind of problem has taken a hold—has shown that 97 per cent. are under the age of 30. That confirms the anecdotal evidence provided by the hon. Member for Cambridge and the hon. and learned Member for Harborough, who have been visiting prisons and have noticed the ages involved. Studies indicate that their anecdotal evidence is accurate; the average age of gang members is 20.

Half the total number of gun and gang homicides are estimated to have been committed by those aged 11 to 29. A study of gun crime in Manchester showed that overall, the most serious injuries were associated with shootings in which gang members were involved. Eighty per cent. of deaths and 70 per cent. of the most serious injuries result from shootings that involved gang members. Such evidence has led us to believe that by using what appear to be somewhat strange definitions, we will catch the mischief that we intend to catch. I assure the Committee that that is based not only on anecdote and assumption, but on research and study.

The hon. and learned Gentleman made a point about numbers—two and one; I will not rehearse his point. We do not believe that it will be necessary to show that all members of a group appeared to engage in criminal activities—only a sufficient number to indicate the existence of a discernible group, which is more than one person, with at least one involved in criminal activity. That is the explanation. It is also not necessary to show that members of a group engaged in criminal activities together, as long as we can show that there is a gang and that somebody has committed an offence.

I hope that those explanations have helped, and that the hon. and learned Gentleman will be satisfied enough to withdraw his amendment.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

Yes, I will, if the Committee gives me permission to do so. The answer to this might well lie in guidelines. If that is the case, perhaps the Attorney-General or the Director of Public Prosecutions might find it appropriate to issue guidelines to the police about how to carry out these sorts of investigations.

I am always acutely conscious of the different experience in our constituencies: I have been concerned about that point for the past 10 years or so. I remember listening to the right hon. Member for Salford (Hazel Blears), who, as a Back Bencher, when we were discussing the legislation to do with antisocial behaviour orders and other related criminal offences in the 1997 Parliament, described in a speech the criminal statistics for her constituency in a fortnight. Those statistics were the same as those in my constituency for a decade. It is important that we understand the different experiences in our constituencies. The problems that affect the estates in the constituencies of the right hon. Members for Salford and for Knowsley, North and Sefton, East, and those of other hon. Members, may be rather different from those that affect the sort of estates that my hon. Friend the Member for North-West Norfolk and I represent. I am not unaware of the patchwork quilt that is England and Wales and how our different constituency experiences influence our approach to these discussions.

I gained some experience of this matter both through my practice at the Bar and through my work as a shadow Minister visiting prisons. I was told by the governor of one prison in Surrey that there was a gang in there called the DSN gang. I said, “What on earth does that mean?” He said it was the “Don’t Say Nothing” gang, which works on the streets of inner London. That gang works in prison and outside it and has controllers inside and outside. The prison authorities do their best to break up and mitigate the consequences of gangs existing inside prisons, but it is inevitable that the gangs manage to do a lot of bad work inside prison, just as they do outside.

Committee members should not think that, because Conservatives sometimes represent different places we do not understand that gangland warfare and misbehaviour are a big problem across England and Wales. We do know that and we agree with the Government that something sensible needs to be done about it. We are edging towards an agreed route down which to travel to prevent these terrible happenings occurring. I beg to ask leave to withdraw the amendment.