Clause 112 - Spent convictions

Licensing Bill [Lords] – in a Public Bill Committee at 10:45 am on 13th May 2003.

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Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight 10:45 am, 13th May 2003

I beg to move amendment No. 436, in

clause 112, page 63, line 3, at end add

'or, where it is a foreign offence which is not covered by that Act, if a similar offence under English law would have been spent.'.

The amendment is designed to find out what the Minister thinks the clause means. If he says the right things, it will be withdrawn. The clause provides for spent offences under the Rehabilitation of Offenders Act 1974, but clause 118(5)(b) provides for

''a foreign offence which the chief officer of police considers to be comparable to a relevant offence''.

I am seeking to find out why there is provision in clause 118 but not in clause 112 for a comparable offence. My amendment would provide for a foreign offence that is not covered by the 1974 Act, if a similar offence under English law would have been spent.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport

Amendment No. 436 would provide that if a foreign offence is similar to an offence in what the hon. Gentleman calls English law—those of us who are Welsh should not worry about the amendment—that would be treated as spent under the 1974 Act, the foreign offence should also be treated as spent. Although I understand and commend the sentiment, I believe that this is a slightly dangerous road to follow.

The 1974 Act focuses primarily on sentences—for example, the length of a sentence of imprisonment. It does not simply list offences. Therefore, it becomes enormously difficult to achieve what the hon. Gentleman would like to achieve. Comparisons of offences and sentences with those given in other jurisdictions are notoriously difficult.

Under the Bill, individuals with convictions outside the jurisdiction will be unable to show that their offences are spent for the purposes of the 1974 Act. The days of the empire and imposing our law outside our jurisdiction are long gone. I am sure that the hon. Member for North Devon (Nick Harvey), who is an expert in that field, could tell us whether those days had disappeared entirely from the world; perhaps they still apply in some areas—Lundy, maybe. I shall withdraw that statement: he is clearly not an expert. It is appropriate that the police should have the opportunity to examine the convictions and decide whether to raise an objection based on their experience. That is the appropriate way to go and although I recognise that that may not be ideal, we must err on the side of public protection.

The police will, if they think it is necessary, contact their counterparts in foreign jurisdictions to check on the offender's history. However, there will be times when they are not able to do that and they will have to make a judgment on the basis of the individual's account of his past convictions. This is not an area in which we can lightly afford to be generous, so I ask the hon. Member for Isle of Wight to withdraw his amendment.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

As I understand it, the police will take account of foreign offences and, on the basis of those, they are permitted to object; but they do not have to do so and they would accordingly exercise their discretion. I accept that and 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 Malcolm Moss Malcolm Moss Conservative, North East Cambridgeshire

The police have made some representations about the clause. I shall share those

with the Committee and ask the Minister some questions.

All hon. Members agree that the police's ability to object to unsuitable applications for licences assists in the crime prevention objectives set out in clause 5(2)(a). However, the police have put it to us that the wording of clause 112 would severely curtail that ability. Indeed, there would be no police involvement in the process at all if the licensing authority considered irrelevant and unspent convictions. A decision made about an application by a licensing committee would be made without police intervention.

An applicant for a licence may have many convictions which, although spent under the Rehabilitation of Offenders Act 1974, cumulatively amount to their not being ''fit and proper'' to hold a liquor licence in the view of the police. Clause 112 and other parts of the Bill have changed the definition of a ''fit and proper person'', as contained in the 1974 Act. Relevant offences might include various minor assaults, drug or drink-related convictions, or sex offences, and those may have been accumulated over many years. In such cases, the police might argue that a person's conduct over a long period would show him or her to be unfit to hold a licence.

Sections 6(3) and 7(3) of the 1974 Act allow proceedings before a judicial authority, which includes a licensing committee, to consider convictions that are otherwise spent. Furthermore, case law has established the process to determine the relevance of those convictions to the application. Adamson v. Waveney District Council in 1997 provided for a three-part procedure that has been used successfully with regard to door supervisor, hackney carriage and private hire appeals before local authority panels. The police would like the provisions of sections 6(3) and 7(3) of the 1974 Act and the case of Adamson v. Waveney District Council to continue to be used, so that objections to unsuitable applicants can still be raised. Changes to the clause would enable that to happen. We have not tabled any amendments to the clause. The police tell us that they would like it to be entirely removed. I am simply telling the Minister that those are arguments that we have heard, and they require consultation and investigation with the police authorities so that we can make absolutely certain that the police are on side with regard to the proposals.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport 11:00 am, 13th May 2003

The hon. Gentleman may table amendments on the issue at a later stage if he wishes, but perhaps I can reassure him. This is a definitional clause; it sets out the meaning of ''conviction'' for the purposes of part 6. The clause states that a conviction for a relevant or foreign offence, as defined in clause 111, must be disregarded if it is considered spent for the purposes of the 1974 Act.

If the clause were not to stand part of the Bill, it would mean that a relevant or foreign offence could never be disregarded for the purposes of part 6. That cuts across any concept of rehabilitation, and would certainly give rise to human rights questions. The hon. Member for Isle of Wight has just tested the water on

an important part of that issue. He asked whether, if we accepted that there can be spent convictions in the United Kingdom, we could also accept foreign convictions as spent. I tried to explain that it might be up to the police to decide whether to raise an objection because of a conviction abroad some time ago, but that we could not incorporate that into the Bill, because we have to err on the side of caution.

A person convicted of assault at 21 might well turn 51 without having committed an offence in the intervening period. In fact, he or she may be a totally reformed character—many of us are—and an upstanding member of the community. If clause 112 did not stand part of the Bill, we would be writing such people off without any consideration of the merits of their case, regardless of the efforts of the person, and of the probation service and the Prison Service, whose staff work with offenders during, and sometimes after, their prison sentence. That would be detrimental, and would be a big loss to the Bill.

Photo of Malcolm Moss Malcolm Moss Conservative, North East Cambridgeshire

I hear what the Minister says, but I am not sure that he has addressed the concerns of the police about the implementation not only of clause 112 but of other clauses in this part of the Bill. If he cannot give the Committee an assurance here and now, I ask him to take up the offer by the police to discuss the matter. I am relating their concerns, and it is they who have to implement the law.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport

I assure the hon. Gentleman, and the rest of the Committee, that we meet the police regularly, and are open to their latest thoughts on the clause or any matter relating to it.

Photo of Malcolm Moss Malcolm Moss Conservative, North East Cambridgeshire

I am grateful to the Minister for clarifying that there is ongoing dialogue between him and his officials and the police. It may well be that the police who made representations to us have not yet been able to put their views to the Minister directly. I will go back to them and say that there is an open door policy, and access would not be barred.

At the base of the police concerns lies the removal of the definition ''fit and proper person'' from the Bill. The police think that their past assessments of whether someone was an appropriate person to hold a licence have now been undermined by the Bill. The Minister and the Government must explain fully that in their opinion, the police will still be able to intervene and object where they believe that people are not, in the words of the existing legislation, ''fit and proper'' to hold licences. That is at the core of their argument and their concern, and it must be addressed.

Clause 112 may not be the appropriate place, and we do not want to undermine the purpose of the 1974 Act, which attempts to get people off the path of crime and so on by rehabilitating them. As the Minister rightly points out, it seems grossly unfair that a conviction obtained a long time ago should stand on a person's record for ever and prevent them from doing all sorts of things, including applying for a personal licence. However, I do not believe that that is behind what the police are saying, which is that a whole list of minor offences will not be recognised under the Bill. Yet over a protracted period, those offences could add up to contribute to an assessment by the police that

someone is not an appropriate person to hold a licence.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport

This is an important point, and I should reassure the Committee. We have discussed these matters at great length with the police. To turn the coin over, I would expect the police to be wary of individuals who may not have any convictions, but whom they know to be organised in criminal gangs or undertaking nefarious activities, and to make that information available to the licensing authority in the form of an objection by them as one of the responsible authorities.

Photo of Malcolm Moss Malcolm Moss Conservative, North East Cambridgeshire

I am grateful for that assurance from the Minister that he hopes and expects that the Bill will enable that to happen.

To return to the main thrust of my argument, under our interpretation of clause 112 and allied clauses, a minor criminal, if one can call him that—someone who has had lots of minor convictions and has no spent—

Photo of Malcolm Moss Malcolm Moss Conservative, North East Cambridgeshire

Yes, absolutely. That person could be an individual who, over a period of time, had something that showed them to be an unsuitable person to be involved with the sale, or particularly with the supply, of alcohol.

Photo of Andrew Turner Andrew Turner Conservative, Isle of Wight

Does my hon. Friend recall that over the weekend it was reported that the police have found that clamping down on those who have committed motoring offences is an effective means of clamping down on those with a propensity for other criminal activity?

Photo of Malcolm Moss Malcolm Moss Conservative, North East Cambridgeshire

I am sure that that is right. It seems to me that it is the same individuals in our society who perpetrate almost all the crime, and that locking them away reduces crime dramatically—although I shall not pursue that argument now.

The Minister has listened carefully and has given us the important assurance that ongoing dialogue takes place with the police authorities. Representations have been made to us on this matter and, as he says, they must be taken seriously. No doubt he will see that they are. Perhaps, before Report, some thought will be given to wording the Bill in such a way that the police concerns are adequately taken care of. A good starting point would be to refer back to the case that I mentioned earlier this morning, which was put to me by the police as a useful vehicle to enable them to make a challenge in various situations.

Question put and agreed to.

Clause 112 ordered to stand part of the Bill.