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Clause 1 — Serious crime prevention orders

Orders of the Day – in the House of Commons at 8:00 pm on 22nd October 2007.

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Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs) 8:00 pm, 22nd October 2007

I beg to move amendment No. 63, in page 1, line 6, after 'satisfied', insert 'beyond reasonable doubt'.

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Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following amendments: No. 75, in line 6, after 'satisfied', insert 'so that it is sure'.

No. 65, in page 2, line 3, at end insert—

'(c) it is informed by the Director of Public Prosecutions

(i) that there is no reasonable prospect of a successful prosecution of the individual in respect of the involvement in serious crime in question, or

(ii) that such a prosecution would not be in the public interest.'.

No. 64, in line 5, after 'satisfied', insert 'beyond reasonable doubt'.

No. 76, in line 5, after 'satisfied', insert 'so that it is sure'.

No. 66, in line 9, at end insert—

'(c) it is informed by the Director of Public Prosecutions—

(i) that there is no reasonable prospect of a successful prosecution of the individual in respect of the involvement in serious crime in question, or

(ii) that such a prosecution would not be in the public interest.'.

No. 77, in line 13, leave out 'appropriate' and insert 'necessary and proportionate'.

No. 67, in clause 2, line 38, leave out from '1' to end of line 41.

No. 68, in page 3, leave out line 20.

No. 69, in line 23, leave out from 'Wales' to end of line 27.

No. 70, in clause 3, line 47, leave out from '1' to end of line 3 on page 4.

No. 71, in page 4, leave out line 27.

No. 72, in line 30, leave out from 'Ireland' to end of line 34.

No. 73, in clause 4, page 5, line 5, leave out from 'must' to end of line 9 and insert

'determine that the defendant acted unreasonably in the circumstances'.

No. 74, in line 13, leave out from 'must' to end of line 17 and insert

'determine that the defendant acted unreasonably in the circumstances'.

No. 78, in clause 19, page 12, line 34, leave out 'appropriate' and insert 'necessary and proportionate'.

Government amendments Nos. 1 to 10, 84, 12 and 13.

No. 79, in clause 35, page 25, line 20, leave out subsection (2).

No. 80, in line 25, leave out from 'is' to 'that' in line 27.

Government amendment Nos. 16 and 17.

No. 81, in schedule 1, page 56, line 27, at end insert—

'Computer Crime

13A An offence under section 1 of the Computer Misuse Act 1990 (unauthorised access to computer material).

13B An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate the commission of further offences).

13C An offence under section 3 of the Computer Misuse Act 1990 (unauthorised modification of computer material).'.

No. 82, in page 60, line 31, at end insert—

'Computer Crime

25A An offence under section 1 of the Computer Misuse Act 1990 (unauthorised access to computer material).

25B An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate the commission of further offences).

25C An offence under section 3 of the Computer Misuse Act 1990 (unauthorised modification of computer material).'.

Government amendments Nos. 22 and 47.

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Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

Most hon. Members, particularly those who sat through our extended periods in Committee, will accept that amendment No. 63 relates to the crux of this legislation—the principal reason why my party and I are uncomfortable with the Government's proposals.

The amendment has a simple purpose: to put the criminal standard of proof into the Bill. At the moment, the Government insist that serious crime prevention orders are a preventive, not punitive, measure and that therefore the civil standard of proof is appropriate. However, I remind hon. Members that the sanctions for those who fall foul of the proposals are severe indeed: people's travel can be restricted, within the United Kingdom as well as abroad, and they may also be restricted in where they can work, live and visit. Short of sending people to prison, pretty much every imaginable restriction on the liberty of the citizen may be involved, and if people fail to comply with the orders, the sanctions extend as far as a prison sentence. In some cases somebody contravening the orders might go to prison despite never having committed a criminal offence or having been found guilty according to a criminal standard of proof.

Furthermore, the orders can apply for anything up to five years—indeed, they are more draconian than that, because the five-year period is indefinitely renewable. Somebody could have a most severe restriction on their liberty for the remainder of their life without having committed a criminal offence or having been found guilty by any criminal standard of proof. The amendment addresses head-on that lack of legal certainty.

Baroness Scotland said in the other place:

"the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of 'beyond reasonable doubt' ".—[ Hansard, House of Lords, 7 February 2007; Vol. 689, c. 729.]

Let us stop for a moment, as we did in Committee, and consider that statement to ascertain whether it is satisfactory in respect of the protection of the citizen's liberty. The Baroness mentioned a "sliding scale"; that will ring alarm bells with some people straight away. She talked about the "likely"—another qualification—standard of proof being "very close" to the criminal standard. Everyone will note that she did not mention "the criminal standard", merely one "very close" to it.

The Under-Secretary of State for the Home Department, Mr. Coaker said during earlier deliberations on the Bill:

"On clause 1(1)(a), we would expect the standard of proof to be virtually identical to that for criminal proceedings" ——[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 19.]

Again, the caveat is entered: not identical, but "virtually identical". On Second Reading, the Minister for Security, Counter-Terrorism, Crime and Policing said:

"we expect that the standard of proof required in relation to the question of whether a person has been involved in serious crime will be the same as in criminal cases"—[ Hansard, 12 June 2007; Vol. 461, c. 664.]

However, that standard has not been put into the Bill; at present, according to the verbal guidance given by most Ministers, we are some way short of the criminal standard of proof. We do not know how far short we are, and it is difficult to know how the legislation will be enacted in practice, but we do know, or appear to know, that the criminal standard of proof will not have to be met for people to be subject to the restrictions on liberty and sanctions in the Bill.

To broaden my point, I shall briefly go through the scope of some of those sanctions. First, as I have mentioned, they are very wide ranging; we are not talking about a slap on the wrist. They have been called "gangster ASBOs" in tabloid parlance, although the punishment that they carry has a far greater effect than ASBOs themselves. Secondly, the sanctions are too easy as an alternative to prosecution. No one is more in favour than I am of trying to arrest and detain someone involved in crime—drawing the evidence together and putting it before a court with a jury of the person's peers. If such a person can be proved to be guilty, a criminal prosecution should be sought. However, I feel far more uncomfortable with the Bill's underlying assumption: that we essentially know who is breaking the law, but we do not have enough evidence to prove it, so we will make legislation that means that we do not have to come up with such evidence, because we can restrict those people's liberty severely without needing to prove that they have done anything wrong.

If anything, the opposite to the norm is often the case: the accused person has to demonstrate that they have not done anything wrong, rather than the other way around. A person need never have committed a crime to fall foul of the Bill, and in my party we do not regard that as a sufficient safeguard. The amendment gets to the absolute essence of the legislation, and I am keen not only to speak to it but press it to a Division so that we can try once again to put a criminal standard of proof into the Bill. I urge the Government to consider that point seriously.

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Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

The Government have sought to clarify their position on the standard of proof to be applied in considering serious crime prevention orders, but the wording of the Bill rather muddies the waters, which is why further clarity is necessary.

The starting point for the standard of proof that is to be applied in deciding whether a person has been involved in serious crime is the Government's Green Paper, "New powers against organised and financial crime", which was published in July 2006. Paragraph 3.1 states:

"The courts would be able to impose an order if they believe on the balance of probability that the subject

Has acted in a way which facilitated or was likely to facilitate the commissioning of serious crime

That the terms of the order are necessary and proportionate to prevent such harms in future."

It adds at paragraph 3.4:

"we would envisage stating on the face of the legislation that to impose an order the courts should be satisfied on the balance of probability that the test is met."

Clauses 35(2) and 36(2) are incorporated in the Bill precisely to give effect to that stated intention, as they make it clear that the standard of proof to be applied by the High Court and the Crown court is the civil standard of proof—in other words, the balance of probabilities test, or, in simple language, "Was it more likely than not?"

However, the Government have said that despite the language used in the Bill, things have moved on, and they would expect the House of Lords judgment in the case of McCann, which related to antisocial behaviour orders, to apply to serious crime prevention orders, with the effect that the aforementioned sliding scale would be adopted, incorporating something close to the criminal burden of proof. As the Minister said in Committee,

"For clarity, let me say that we expect that, with respect to clause 1(1)(a), the standard of proof, as laid out in the McCann judgment, would be virtually identical to the criminal standard of proof."

He added that

"as far as the Government are concerned, the judgment in McCann in the House of Lords will inform the practice when it comes to the implementation of serious crime prevention orders." ——[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 17-18.]

So the expectation is that the McCann judgment would apply or that it would "inform the practice". What has not been said is that that will be the practice. That is why I remain of the view that it is important, for the sake of certainty and clarity, to avoid the need for case law, and for interpretation to make this relatively simple issue clear in the Bill by way of the amendments.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Does my hon. Friend agree that when something like this is not made clear, it means either that the Government have not made up their own mind about what they want or that they do not want it to be clear? In the end, the judgment is based not on the Minister's words but on the words in the Bill. I am worried that we are instigating a procedure that is justifiable only on the basis of the normal criminal measurement of guilt, and pretending that it is almost that although it is actually something much less.

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Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

My right hon. Friend makes an extremely powerful and effective point. It is extremely strange that this simple and narrow point has not been taken on board in the language of the Bill. As the Minister will see from the amendments, it does not require a huge amount of drafting to clarify the burden of proof required to demonstrate that somebody has been engaged in or involved in serious crime. One must therefore question why there is such reluctance to take that on board and to make the changes that we believe are necessary. We think it appropriate for the situation to be made clear in the Bill, and our amendments Nos. 75, 76, 79 and 80 would give effect to that.

The Government have said throughout the passage of the Bill that the orders in part 1 are intended to be a preventive civil tool rather than a punishment. Indeed, as we have already discussed, that approach is essential to compliance with the European convention on human rights. There is little doubt, however, that these orders could be extremely wide ranging in nature and scope and be quite draconian. That point has been rehearsed on many previous occasions on Second Reading and in Committee, and I do not intend to delay the House unduly with it. However, given the need to make it clear that the powers should be used in a preventive way, it is important that this House states that the terms of the order should be "necessary and proportionate" in order to prevent the harm of serious crime. This is not about questioning the integrity of the court but about providing a clear statement of purpose which should aid compliance with article 6 of the ECHR.

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Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction) 8:15 pm, 22nd October 2007

I am glad that the hon. Gentleman added that rider. He must have suddenly realised, when he said that he hoped that the orders were proportionate, that he was suggesting by implication that the High Court—which is, as he knows, a public authority for the purposes of the Human Rights Act 1998—would be acting in a disproportionate way.

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Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

By using the word "appropriate", the Minister is suggesting that the High Court would operate in an inappropriate way; otherwise, he would not have put the word in the Bill in the first place. I do not accept his argument. For the purposes of clarity, "necessary and proportionate" sums up very clearly what we believe should be stated in the Bill.

There remains a genuine concern that the orders may be used in a way that subverts or replaces the existing criminal process. Paragraph 3.2 of the Green Paper notes:

"As with other disposals available to agencies like the FSA, those deciding whether to prosecute or pursue a civil order will need to decide which disposal is most likely to reduce harm in the long run, while taking due account of the public interest in prosecutions."

It is therefore envisaged that orders may be sought as an alternative to a prosecution. This is a road down which we must proceed with caution. Civil orders can have a part to play in combating crime, although the way in which the Government have introduced and implemented such orders in the past hardly makes the case well. The Minister has said that only about 30 such orders are intended to be issued annually and that the main target will be the Mr. Bigs, although the Green Paper talks about orders being applied to "individuals on the fringes" and "peripheral players". The point is made that if someone is caught within the ambit of the Bill, clause 4 provides a reverse burden of proof for them to show that they have acted reasonably. The problem is that we do not know how this new power will be applied in practice. Even at this late stage, if the Government are not prepared to accept the amendments, I urge them to provide for a formal mechanism to monitor and renew the orders so that they do not start to be seen as an easy option when a formal criminal prosecution could and should be made to deal with a serious criminal.

Then there are the crimes that are deemed to be serious in the first place in order for an serious crime prevention order to be considered. There is a need for certainty and clarity, and it is right that the offences regarded as serious should be stated in the Bill rather than left open for further interpretation. It seems astonishing, given the increasing threat, its interrelationship with most other criminal activity, and the level of organisation and technological sophistication that now lies behind it, that computer crime is not considered a serious crime and stated in schedule 1. That appears to be a glaring omission when one considers that fishing for salmon, trout or freshwater fish with prohibited instruments is considered under the Salmon and Freshwater Fisheries Act 1975 to be a serious offence. That implies that the Government do not regard computer-enabled cybercrime as serious or a priority.

Such crime hurts more and more people each day, with some surveys suggesting that the public feel more at risk of being the victim of an online crime than they do of any of the other, more high-profile offences. A survey by the Government-sponsored Get Safe Online website asking people of which of a series of crimes they felt most at risk in their everyday lives showed that 21 per cent. identified internet crime—higher than burglary at 16 per cent., mugging at 11 per cent. or car theft at 8 per cent. Online crime is growing fast. According to Get Safe Online, 10 per cent. of internet users were the victims of an online fraud in 2006; the average loss for each individual was £875. It is not just a matter of fraud, but of trojans, viruses and other malware that damage people's computers, as well as misusing them for botnet attacks on others. There is also identity fraud, where individuals' personal details and credit card information are harvested by clandestine means and traded as currency among criminal gangs. Such crime undermines confidence in the use of the internet as a trading platform and its role as an effective means of communicating information.

The Government are not immune from attack. The tax credits website was shut after fraudsters used security lapses to make bogus claims and steal the identities of 13,000 staff at the Department for Work and Pensions and Network Rail. It is unlikely to reopen before next year. Business has been hit hard. During the past year, 84 per cent. of large businesses are thought to have suffered a malicious security incident. The Metropolitan police estimate the average losses to a large company of an e-crime attack at anywhere between £65,000 and £130,000, rising to £1 million for a large corporate entity. Against such a background, it seems astonishing that computer-enabled crime should not be considered as serious under the Bill.

On Second Reading, the Minister for Security, Counter-Terrorism, Crime and Policing said:

"This Bill is designed to fill the gaps and lacunae that exist in the law, and its scope does not extend to every crime that, however remotely, could be construed as serious. As I said earlier, the Bill and schedules have been devised precisely to fill what we perceive to be holes in the existing legislation covering serious and organised crime."—[ Hansard, 12 June 2007; Vol. 461, c. 663.]

I would assert that not including cybercrime in the Bill creates a very big hole, as such crime is serious, organised and poses a significant threat to an increasing number of people, and it should be treated as such. Accordingly, amendments Nos. 81 and 82 would improve the Bill by inserting various offences under the Computer Misuse Act 1990 into schedule 1 to send a clear message to those intent on causing us harm that my party treats the issue extremely seriously, even if the Government do not. I will listen carefully to how the Minister responds and to his explanation of the Government's position on this issue. It is so serious that if we do not receive appropriate assurances, the matter should be pressed to a Division.

The changes proposed to the serious crime prevention orders by the Government appear largely technical in nature, and do not address the fundamental issues highlighted by us and by Mr. Browne, except for Government amendment No. 3, which deals with the appeal process. That amendment effectively clarifies the appeals process through the criminal division of the Court of Appeal and on to the supreme court, and adds language to the provisions. However, the Government have reserved an order-making power under what will be inserted as clause 24(9) and it would be helpful if the Minister clarified the use of the power, the intention behind it and how it would operate and interact with the new appeal process.

We will listen carefully to the Minister's response, but there are a number of serious issues relating to the clarity, confirmation and scope of serious crime prevention orders. Even at this late stage, I hope that the Minister will listen carefully to the significant reservations that have been raised tonight and previously, both inside and outside the House, and insert some quite simple measures to give the clarity and certainty that so many people want.

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I shall apply myself to the specific issue of certainty and clarity. When the Minister said that the tests would be virtually the same, it raised an important question. If they are virtually the same, why can they not be the same? It is no more difficult than that. I raise that question particularly because other Ministers have often suggested that they are the same. Similarly, in the discussion we had a few moments ago, all the words that I used are used by those who want greater power than they think the House would give them.

I want to explain to the Minister why I think that the issue is very serious. It has always been true that in this country the rights and freedoms of the individual have been restricted for the very best of intentions. It has always been for the highest purposes, and it has always been argued that it has to be done because of the threat of this, that or the other. Mr. Browne found that he had to say that he was not in favour of organised crime before he was allowed to go on to say why the issue he raised was so important. I hope that I do not have to say that, but we are almost put into that position, and we have been again and again. I hope that the Minister understands why it is necessary for him to be very precise. During the past 10 years, there has been a succession of Bills in which the freedom of the individual has come second by a long way in the Government's approach to such issues.

Again and again, whether about juries, the burden of proof and so on, the Government are on the side of authoritarianism. It is sad for me to find, once again, that I am arguing from a position that must be to the left of the Government's. It is increasingly confusing to people out there that the Government take views that do not start from the presumption that we have to defend people's rights. The right that we are considering is crucial.

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Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs)

Does that not show that divisions in politics nowadays are often not between left and right but between libertarians such as the right hon. Gentleman and me, and authoritarians?

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Photo of John Gummer John Gummer Conservative, Suffolk Coastal

I was trying to use good, old-fashioned language so as not to upset the Under-Secretary too much, but the hon. Gentleman may be right. The Government are the most authoritarian Administration that Britain has ever had. No historian would question that.

The hon. Member for Taunton hinted at the importance of the right that we are considering. If we and the Under-Secretary are confused, the innocent person who will inevitably be caught by the measure—I have some interest in that problem—will also be confused. At no point in the process will he or she know the protections that they have, the standard of proof that has to be produced and where the measure stands between the civil and criminal standards of proof. At different times, requirements have moved elegantly between the standards, from "virtually the same" to completely different. The required standard is likely to be informed by the decision in the McCann case.

Having been a Minister for several years, I know some of the language that civil servants pass to Ministers. The phrase, "is likely to inform" is well known to mean, "I am saying nothing whatsoever, but I want you to take it from me." It does not mean anything. "Inform" merely means that somebody, in making a decision, either takes the information into account or knows about it in order not to take it into account. It has no genuine meaning.

My problem is that the freedom of the individual is too important to rely either on the direct and clear word of a Minister without being in the Bill or—even worse—on the unclear, indirect, confusing and contradictory words of a series of Ministers. I therefore hope that hon. Members, small though the attendance is for such an important subject—all parties should bear the blame for that—will not allow the Under-Secretary to get away with officialese to cover up the fundamental threat that the measure poses to the freedom of the individual.

The Under-Secretary will get away with it because the people whom we are considering are generally rather nasty. Some are very nasty. We therefore forget that soon, at some point, somebody who is not nasty will be caught up in the provisions. The vagueness means that great injustice can be done. The House is here above all to protect people from injustice. The phraseology that we are considering does not do it. I therefore commend to hon. Members the various amendments, which would at least tighten the measure sufficiently for us to believe that we have done our historic duty in defending individuals against an authoritarian Government, whose authoritarianism is unparalleled since the days of the absolute power of the Crown.

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Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction) 8:30 pm, 22nd October 2007

In the time available, I will go through the various amendments. However, I do not propose to go through them in fine detail, not least because, as hon. Members who are present know, we have already debated them in great detail in Committee. They were also debated in equal detail in another place. However, I will first set out the Government's response to the amendments and, secondly, explain the need for the amendments that we tabled.

One of the key issues that we discussed in some detail during the Bill's passage is the appropriate standard of proof that should apply to the orders. Amendments Nos. 63, 64, 75 and 76 all touch on that. We debated those amendments at length in Committee, but I accept that hon. Members feel that the point is central to the debate. However, I hope that they will forgive me when I say that I have not changed my mind since then, and that the same arguments for not accepting the amendments continue to apply. I am afraid that I must resist them.

Clause 1 provides an effective and appropriate test to be met by the applicant authority before an order will be granted by the High Court. The test will not be easy to fulfil—and it should not be. It balances the need to protect the rights of the individual with that to protect the public from the harm that some individuals cause. That is the point to which Mr. Gummer alluded. There is always a debate about balance and where to draw the line. It is a perennial debate, which has gone on for centuries and will doubtless continue for centuries. They are not about punishing past actions, but preventing future engagement in activities that cause harm to society. For that reason, clause 1 sets out a two-part test that must be met before an order is made by the High Court. The first part of the test is a question of fact: has the proposed subject of the order been involved in serious crime in the past? The second part is a matter of judgment for the court: does it have reasonable grounds for believing that the order will prevent future harm caused by serious crime?

Amendments Nos. 63 and 64 would change the required standard of proof to be discharged in relation to the first limb of the test in clause 1 from the civil standard to the criminal standard of "beyond reasonable doubt". The appropriate standard of proof for the orders was debated at great length in Committee, as I have said, and in another place. As can be seen from the Hansard report, there was some initial confusion over what having the civil standard of proof would mean in practice. I tried to clarify that in Committee, but I will attempt to do so again.

The civil standard of proof is a flexible one—I shall come to the right hon. Gentleman's point in a moment. In the case of McCann, the House of Lords decided that for antisocial behaviour orders the standard of proof that the court should apply when deciding whether a person had acted in an antisocial manner should be the same as the criminal standard—that is, beyond reasonable doubt. To be clear, Lord Steyn said in that case:

"Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are"—

I emphasise the next word—

"virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of the magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard."

We expect similar principles to be applied in relation to orders. We expect the standard of proof in relation to whether a person has been involved in serious crime to be beyond reasonable doubt. The orders are civil orders, so it is right that the civil standard of proof should apply. As a result, I must resist the amendment.

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Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

The Minister has said that he expects that that standard will apply. Can he state categorically that it is the Government's intention that that standard should apply? That is an important but distinct point on which we would appreciate some certainty.

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

To put beyond reasonable doubt what I am saying, the civil court, in making its judgment about such matters, should take into account the case of McCann in the House of Lords. I am not a lawyer, but every time I raise the issue everybody says to me, "Well you ought to read the House of Lords judgment on this." That is what I am told by barristers and lawyers everywhere—"Read the House of Lords judgment. The House of Lords is the highest court in the land. It will inform the decisions that courts make." That is exactly what I am doing. I am saying that the courts of the land—the civil courts in this case—should apply the case of McCann in determining what standard of proof they should apply when considering serious crime prevention orders.

No doubt much more eminent lawyers than me—since I am not one anyway—use the words "virtually indistinguishable". If those words can be used by the House of Lords, which is the highest court of the land, it seems appropriate that I, too, should use the word "virtually", which is what I have done. If it is the intention of the hon. Member for Taunton to make the applicable standard "beyond reasonable doubt", the House of Lords has already done that, so the amendment is unnecessary and I hope that he will feel able to withdraw it. Amendments Nos. 75 and 76 appear to go to the same end, so I hope that James Brokenshire will not feel the need to press them.

On amendments Nos. 65 and 66, let me make clear one important point. The Government are dedicated to ensuring that those who commit serious crimes are quickly detected, effectively brought to trial and punished appropriately. However, amendments Nos. 65 and 66 misunderstand the role that the orders can play. There will not be a direct choice for the Director of Public Prosecutions—or any of the other applicant authorities, for that matter—between pursuing a prosecution, which is punitive, and seeking an order, which is preventive. Orders can be sought independently of, before, alongside or after a prosecution. They will be sought at whatever point in time there is a harm that can be best and most effectively prevented by the imposition of reasonable and proportionate conditions. That does not affect the primacy of prosecution for those who have committed serious crimes. Indeed, one of the reasons we have chosen the applicant authorities that we have, in this part of the Bill, is precisely that they are the best placed to make an assessment of the most appropriate course of action in any particular set of circumstances. For those reasons, I must resist the amendments.

Amendments Nos. 77 and 78 seek to amend clause 1(3), and the similar provision for orders in the Crown court in clause 19, in order to change the word "appropriate" to the term "necessary and proportionate". The provisions set out the test that the court must apply when deciding on the terms to include in an order. Placing a requirement on the court to act proportionately is unnecessary because it simply reflects a principle by which the court will already abide in making the orders. There is no need to tell the High Court in legislation to be proportionate. As for a requirement for the terms of an order to be necessary, we believe that we have set the standard in clause 1(3), and later in clause 19(5), at the right level. That is because we have struck the right balance in requiring the test to be sufficiently tough to ensure that an order will be proportionate but not so tough that it can never be met. For those reasons, I am afraid that I must resist the amendments.

Mr. Browne has tabled amendments Nos. 67 and 72. They cover subjects that we debated at some length in Committee, and I have not changed my mind since that debate. We have provided a schedule to show the large majority of the offences in relation to which the use of these orders would be appropriate. Also, within the framework of the schedule, we have provided a discretion for the High Court—or, as the case may be, the Crown court—to treat an offence as serious if, in the circumstances of the case before it, which we cannot know or foresee, it considers the offence to be serious enough to be treated as if it were specified in the schedule.

It is important that we do not fetter the discretion of the courts to adapt to the constant changes around them by looking at the context of an offence and making a fully informed and reasoned decision whether it would be appropriate for that offence to attract an order. Let me give the House an example of why this discretion is necessary. We do not consider it appropriate to include in the schedule offences against the person, such as assault or murder, because they are not suitable for attracting an order in all circumstances. So, I am sure that we can all agree that, when a person assaults another in a simple fight in a pub, these orders would be completely inappropriate. However, when someone has routinely used violence to intimidate and maintain a reign of terror in an area, he might be an appropriate candidate for an order, after serving his sentence, if there is evidence that an order would prevent such crimes from being committed again. It is the circumstances in which these types of offence are committed that determine whether or not an order is appropriate. The person best placed to make that decision will be the judge sitting in the High Court.

On amendments Nos. 73 and 74, I would like to point out that, in drafting the Bill, we wanted to ensure that any actions of the proposed subject which were reasonable in the circumstances could not be used as the basis for an SCPO. So, for example, there is no doubt that an employee of PC World facilitates serious crime when he sells Mr. X a computer that Mr. X later uses to commit a massive fraud. Mr. X could not commit the crime without that computer. However, to say that the employee should be the subject of an SCPO for those actions would be ludicrous. As a result, we have clause 4(2)(a) and 4(3)(a), which mean that any action that the proposed subject can show is reasonable cannot form the basis for an SCPO. The intent behind the amendments seems to be to force the applicant authority instead to have to show that the actions were unreasonable.

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Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

In that example of an employee, the Minister has said that it would be up to the employee to show that his actions were reasonable. Does he accept that that would be a somewhat perverse burden in those circumstances, should an SCPO be sought against such an individual?

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

I do not accept that, for the reasons that the hon. Gentleman knows. We have already debated that matter long and hard.

As I have said, the intent behind the amendments seems to be to force the applicant authority to show that the actions were unreasonable. Whether that is correct depends on one question: who is best placed to know the circumstances surrounding those actions and whether they are reasonable? The answer must surely be the subject. It is important to remember, though, that for this even to be an issue, the applicant authority will already have had to adduce evidence to show that the actions of the proposed subject facilitated, or were likely to facilitate, serious crime. Without having proved the existence of the element of facilitation, the question of whether the actions were reasonable would not arise. So, the proposed subject will not be asked to prove reasonableness in a vacuum; rather, they will need to show that the actions that facilitated the serious crime were reasonable. If I asked my constituents whether it was acceptable to ask someone who has been proven to have facilitated crimes such as drug trafficking or people smuggling to show that their actions were reasonable, I am confident that their answer would be the same as mine. I continue to resist the amendments for those reasons and hope that they will be not be pressed. We have already discussed at some length the civil nature of the orders and I do not propose to go into any further detail now.

Finally, on the amendments not tabled by the Government, I would like to mention amendments Nos. 81 and 82. They would add the offences contained in sections 1 to 3 of the Computer Misuse Act 1990 to the list of offences contained in schedule 1. I would like to thank hon. Gentlemen for tabling those amendments, but in consultation with law enforcement agencies and others throughout the development and passage of the Bill, no one has suggested that those offences should be included. However, the Government are firmly committed to tackling computer crime and I can see that there may be merit in including those types of offence in the schedule. I cannot accept the amendments at this time, because I would not wish to do so without consulting the computer industry and other stakeholders. However, that was precisely why we included the order-making power to add to the schedule at a later date. That aspect has been opposed, but it might be helpful in those circumstances. If I make a commitment now to consult fully on the amendments and, subject to the results of that consultation, to seek to amend the schedule by order if it proves to be appropriate, I hope that the amendments will not be pressed.

There are a number of other Government amendments, which are relatively minor and technical, and I intend to move them formally later. I invite the House to resist amendment No. 63.

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Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs) 8:45 pm, 22nd October 2007

I am grateful to the Minister for his customary courtesy in dealing with all aspects of the Bill. However, I wish to press the amendment to a Division.

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Question put, That the amendment be made:—

The House divided: Ayes 201, Noes 274.

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Question accordingly negatived.

It being after Nine o'clock, Mr. Deputy Speaker proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [12 June].

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