Clause 35 - Power to make travel restriction orders

Criminal Justice and Police Bill – in a Public Bill Committee at 3:15 pm on 1st March 2001.

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Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 3:15 pm, 1st March 2001

I beg to move amendment No. 19, in page 26, leave out lines 37 to 39 and insert—

`(a) to consider whether likelihood of reoffending would be realistically minimised by including in the sentence the making of a travel restriction order in relation to the offender.'.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to consider the following amendments: No. 160, in page 26, leave out lines 40 to 45 and insert—

`(b) the court shall only impose an order if it considers that it is necessary to prevent the offender from committing further offences of a similar nature.'.

No. 161, in page 27, leave out lines 1 and 2 and insert—

`(c) the court shall state the reasons for its decision'.

No. 162, in page 27, line 5, leave out from `custody' to end of line 7.

No. 6, in page 27, line 6, after `years', insert—

`and not more than the same number of years as the sentence of imprisonment to which the offender was previously sentenced'.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

We wondered whether it might be helpful to refine the way in which subsection (2)(a) works, and that is what amendment No. 19 seeks to do. Amendment No. 160, which is in the name of the hon. Member for Southwark, North and Bermondsey, relates to preventing the committing of further offences. Our amendment, which approaches the same subject in a slightly different way, would require the court

``to consider whether the likelihood of reoffending would be realistically minimised by including in the sentence the making of a travel restriction order in relation to the offender'',

and would replace the existing, wider requirement for the court

``to consider whether it would be appropriate for the sentence for the offence to include the making of a travel restriction order in relation to the offender''.

We believe that that further refinement might be helpful, and I shall be interested to hear the Minister's comments. However, I should point out that we are simply probing this issue.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton

I want to speak to amendments Nos. 160 to 162 and 6. On Second Reading, we expressed our support for proposals to restrict drug traffickers' freedom to travel, but we gave notice that we would seek to amend the open-ended nature of the restrictions. Like us, the Minister will doubtless have received briefings from Liberty, which questions whether such a restriction is compatible with the European convention on human rights, the freedom of movement and the right to trade in goods and services throughout the European Union. I am sure that he will say that, as with all the other clauses, this one has passed some form of compatibility test. Indeed, the Government are hardly likely to table legislation that they do not believe complies with the European convention on human rights, but that does not guarantee that the clause does indeed comply.

There is no upper limit to the length of the orders. Although they will apply only to people who have been given prison sentences of four years or more, first-time offenders—as well as those who offend repeatedly—could be included. Amendment No. 160 would replace subsection (2)(b) to make it clear that

``the court shall only impose an order if it considers that it is necessary to prevent the offender from committing further'' drug trafficking offences. A pre-sentence report might well state that, on the balance of probabilities, the offence was a once-only occurrence. Indeed, we might all imagine circumstances in which a person was used as, say, an unknowing mule. Amendment No. 161 would change the balance by requiring the court to

``state the reasons for its decision'', whether or not it decides to impose a travel restriction order. At the moment, the norm is that a travel restriction order should be imposed, and reasons must be given for not imposing one. If our amendment were accepted, reasons would have to be given in either case.

Amendment No. 162 would remove the minimum restriction of two years and leave it to the discretion of the court. Amendment No. 6 would set a maximum time limit that is no more than the original prison sentence.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

This is an important clause and I am glad that the hon. Lady raised those points. It provides a new sentencing option for the courts: a travel restriction order. The reason for it is straightforward. The trade in illegal drugs is an international multi-million pound industry, which, in 1997, was estimated to have a turnover of approximately 8 per cent. of total international trade. That is an extraordinarily large figure, which shows the task that we are wrestling with. We believe that travel restriction orders will make it more difficult for drug traffickers to travel overseas, thereby helping to prevent or disrupt trafficking. That is one of the main objectives of the Government's drugs policy, which commands general support throughout the House.

The orders will be available when the courts impose a sentence of imprisonment of four years or more for a drug trafficking offence. That threshold has been chosen in accordance with the sentencing guidelines issued by the Court of Appeal to distinguish serious cases. In such cases, the courts will be under a duty to consider making a travel restriction order and if a court decides that a ban is not appropriate, it will be required to give reasons. The period of the order will run from the time of the offender's long-term release from custody--for example, on licence--and will last for a minimum of two years. Courts may also order the surrender of any United Kingdom passport.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton

I should be grateful if the Minister would explain the rationale for the minimum period of two years.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I shall come to that when I deal with the amendments.

Amendments Nos. 19 and 160 would have a similar effect. We intend the order to add to the range of powers available to the courts to deal with drug trafficking offenders and to be a discretionary measure, subject to the sentencing threshold stated, which was chosen to distinguish serious cases in accordance with Court of Appeal guidance. The effect of the amendments--I accept that the hon. Member for Surrey Heath (Mr. Hawkins) said that they are probing amendments--would be to impose on the courts an unreasonable speculative requirement. The Government want the courts to make the judgment set out in subsection (2)(a) in lines 37 to 39--that is, whether a travel restriction order, in all the circumstances of the individual case, is an appropriate sentencing option. That requires a broader sentencing judgment than that suggested by amendments Nos. 19 or 160, both of which would require the court to speculate unreasonably.

Similarly, the Government are not suggesting that the mere imposition of a travel restriction order will necessarily prevent reoffending and I do not understand how a court could reasonably be asked to make such an assessment. The phrase ``similar offences'' in amendment No. 160 is too vague.

The amendments would also prevent the courts from applying travel restriction orders when they consider that to be an appropriate punitive sanction--I emphasise punitive. Overseas travel is a common prerequisite for drug traffickers and we are discussing international drug-dealing businesses. It is right that the courts should have the option of punishing those who abuse the freedom to travel with an appropriate sanction. The Government believe that for individuals convicted of drug trafficking offences, whose life style involves frequent overseas travel for pleasure or other purposes, the imposition of a travel restriction order may be an effective element in the overall punishment, as well as an appropriate and justifiable way of expressing society's condemnation of their unlawful activities. We do not accept that the conditions set out in amendments Nos. 19 or 160 are appropriate.

Amendment No. 6 is technically flawed because ``previously sentenced'' could refer to any previous offence. However, we believe that its broad intention is what the Government envisage in the new sentencing option--an escalator based on the sentence of imprisonment handed down at the same time. The record of our debate today will confirm that intention and the courts will be informed when notified of the introduction of the new power.

I cannot accept the amendment because it would unacceptably limit the discretion that we want to give to the courts and could have an adverse impact on the sort of offenders that we want to protect. The hon. Member for Taunton (Jackie Ballard) gave the example of a single mother acting as a mule for a drugs gang. That is a serious offence, but the courts may decide that, in all the circumstances, an appropriate punishment would be a short prison sentence relative to the period of the travel restriction order. The Government do not want such discretion to be limited.

Amendment No. 161, as with amendments Nos. 19 and 160, has the clear intention of shifting the presumption of the use of travel restriction orders to only those cases in which the court believes that there is a strong likelihood of similar reoffending that would be prevented by imposition of a travel restriction order. I have explained that this is not the test or the rationale for travel restriction orders that the Government intend. I see no merit in requiring the courts to explain their reasons for making a travel restriction order. If an offender believes that an order was inappropriate in his or her case, the normal appeals mechanism provides a means of redress.

Amendment No. 162 seeks to remove the minimum duration for travel restriction orders. Clause 35 stipulates that the new orders will not run for less than two years and I hope that it is self-evident that for those orders to be given a chance to impact on drug trafficking activity, or to represent a meaningful punishment, a sensible minimum period for the prohibition on overseas travel is necessary.

Members of the Committee may not be aware that offenders released on licence are already subject to a ban on overseas travel, without the permission of their parole officer, for a set period of the licence. In the case of an offender sentenced to four years' imprisonment, that restriction would currently last for one year. In response to the hon. Lady's question, the reason for the two-year period is that the Government intend that travel restriction orders should be a tougher restriction on overseas travel than already exists under the terms of the parole licence, which would need to be more than one year. That is why we have set two years, which is a sensible and reasonable minimum period.

Photo of Mrs Jackie Ballard Mrs Jackie Ballard Liberal Democrat, Taunton 3:30 pm, 1st March 2001

Will the Minister confirm that the restriction order would be an addition to the one-year restriction on travel under the licence?

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I was just taking advice on that point. No, it would not be an addition; it would be a parallel restriction. The offender would have one year under parole and an extra year in this situation. With your permission, Mr. Gale, I have dealt with that matter at some length because there will be public interest in the Government's intended application of the order. It was important to place on the record the thinking behind the various aspects of the order. I apologise for taking the Committee's time. I hope that, with those clarifications, hon. Members will consider withdrawing their amendments.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

As I said in opening, we were simply seeking to probe. The Minister's comments have been helpful. We in the official Opposition definitely want to crack down on drug traffickers. It may help the Minister and, indeed, the Committee, if I say now that when we deal with clause 37 I do not propose to speak to amendment No. 18. The matters raised in our probing amendment, No. 19, on this clause are similar and the Minister has given us a full and adequate response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Crispin Blunt Crispin Blunt Conservative, Reigate

I want briefly to refer to a constituency case that came to my attention. A constituent was convicted of a similar offence, but his job required him to work largely overseas, as part of the motor racing industry. On the face of clause 35 as it now stands, there is absolutely no appeal once the order has been imposed. When my constituent came to see me, I was convinced that he had every intention of being a good citizen. He was extremely remorseful about what he had done. His employment and his future financial success for his family depended on his being able to travel, because that was the nature of the industry in which he worked. I should have hoped, if a travel restriction had been imposed on him in those circumstances, for the capacity for some form of appeal against the travel restriction order, so that he should have the ability to convince a court or the Secretary of State, or simply for some mechanism by which that travel restriction could be changed. If I am correct in believing that there is no way of altering a travel restriction order as it stands on the face of the Bill, would the Minister consider before Report whether there should be some appeal mechanism in such circumstances?

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

My hon. Friend the Member for Taunton and I support the Government's general public policy intention. There should be a tough regime to deal with people trafficking in drugs who use trafficking and travelling to supply, getting people into addiction and sustaining their addiction, and in doing so making large profits for themselves . We are signed up to the Government's agenda in that respect.

I should like to ask a question relating not to UK passport holders, but to non-UK passport holders. Do the Government propose, under the Bill or existing legislation, to take powers to deal with people who are not UK passport holders in terms of equally restricting their movements? I ask that question also in the context of the EU-wide discussions in which the Home Secretary has been taking part. There should be the power, at least within the EU, to ensure that someone who has been convicted of drug trafficking in the UK but who is, let us say, a Dutch, Spanish, Italian or Swedish national, is as liable to lose their rights as a UK passport holder. It is entirely unsatisfactory that someone who would be caught in another nation state and brought before its courts cannot be dealt with in an equally severe and rigorous manner in this country. How does the law stand in that respect? Are proposals on the table to ensure that there is a common EU-wide mechanism for dealing with drug traffickers? The issue may go beyond the EU, but it would be encouraging if we could at least get it working within the EU.

After the debate on this clause I shall have to leave the Committee. I should have liked to be here, but I have another commitment in the House. That does not undermine my commitment to getting this part of the Bill right, and my hon. Friend the Member for Taunton will fully look after our interests in that respect. I do not want my absence to be taken to mean a lack of interest in the next clauses.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I entirely accept the hon. Gentleman's final remarks. I am aware of his commitment, and I assure him that if I am going to mention him in his absence I shall write to him beforehand.

With regard to appeal, according to clause 35(2)(a) and (b) it is a matter for the judge to decide how to deal with the situation. If they wish, the person concerned can appeal against that decision through the legal process. I understand the concerns of the motor racing constituent of the hon. Member for Reigate, but a pretty high test is involved. Orders are available only where the court imposes a sentence of imprisonment of four years or more for a drug trafficking offence. The threshold was chosen in accordance with sentencing guidelines issued by the Court of Appeal to distinguish serious cases. The individual would have to have been fairly seriously involved. I cannot see how we could raise the threshold much higher, but there will be a right to appeal against the sentence.

The hon. Member for Southwark, North and Bermondsey asked about passports. A travel restriction order can be made whatever the nationality of the person concerned, and deportation is also an option. Passport confiscation is available in respect only of UK passports, because the passports of foreign nationals, whatever their domicile, remain the property of the issuing Government, not of Her Majesty's Government.

However, that does not weaken the force of the hon. Gentleman's remarks. He was right to say that we are working hard to get much better EU co-operation on international crime, especially drug trafficking and trafficking in people, and to ensure that the agencies concerned are much more focused on those problems. That is the significance of the work that we have been doing in the Justice and Home Affairs Council, which deals with such matters under the aegis of the EU. The Government can legitimately take some credit for trying to advance and accelerate the progress that is being made. I can confirm that EU Governments are engaged in active discussions about the issues that the hon. Gentleman mentioned.

Photo of Simon Hughes Simon Hughes Shadow Spokesperson (Home Affairs)

I am encouraged by the Minister's comments. Will he confirm whether it is the Government's objective to secure an EU-wide system that would allow either for penalties to be imposed, following consultation, on behalf of the legal system of one of the other countries, or for the automatic reference back of the foreign national in question by the relevant UK court, which would guarantee further consideration of the matter? I understand that double jeopardy issues may be involved. However, the objective should be to prevent someone from escaping justice in a particular EU national court, and to rein in the various forms of trafficking to which the Minister has referred.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

I shall not comment on the detail of the hon. Gentleman's question, because to be frank the relevant discussions are being conducted not by me but by my right hon. Friend the Home Secretary, and by the Minister of State, my hon. Friend the Member for Hornsey and Wood Green (Mrs. Roche). I am insufficiently familiar with the state of those discussions to comment on the Government's negotiating position in relation to that of other Governments. However, I can confirm that it is our policy goal to work properly in those ways, and I therefore hope that the clause can stand part of the Bill.

Question put and agreed to.

Clause 35 ordered to stand part of the Bill.

Photo of Charles Clarke Charles Clarke Minister of State, Home Office

On a point of order, Mr. Gale. I hope that it is in order for me to correct the record in respect of a statement that I made on clause 34. In answer to an intervention from the hon. Member for Southwark, North and Bermondsey during the stand part debate—and having taken advice on the hoof, as it were—I suggested that the burden of proof was criminal. However, my advisers have double-checked the matter and the offence in question is in fact civil, so the points that were made should reflect that fact, rather than the answer that I gave at the time.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Happily, that is not a point of order, but it is now a matter of record.

Clause 36 ordered to stand part of the Bill.