Clause 2

Serious Crime Bill [Lords] – in a Public Bill Committee at 12:00 pm on 26 June 2007.

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Involvement in serious crime: England and Wales orders

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I beg to move amendment No. 54, in clause 2, page 2, line 22, leave out ‘a serious’ and insert ‘an’.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 55, in clause 2, page 2, line 22, at end insert

‘in respect of which he has been sentenced to an immediate term of imprisonment of not less than seven years’.

No. 59, in clause 2, page 2, line 24, after ‘Wales’, insert

‘in respect of which that person has been sentenced to an immediate term of imprisonment of not less than seven years’.

No. 61, in clause 2, page 2, line 26, leave out ‘a serious’ and insert ‘an’.

No. 62, in clause 2, page 2, line 27, at end insert

‘in respect of which a court would be entitled to impose an immediate term of imprisonment of not less than seven years or a mandatory or discretionary life sentence’.

No. 56, in clause 2, page 2, line 27, at end insert—

‘(1A) For the purposes of subsection (1) an immediate term of imprisonment of not less than seven years shall include—

(a) a mandatory life sentence; and

(b) a discretionary life sentence and a sentence for imprisonment for public protection in respect of which the court has specified that a period of seven years shall have expired before the case is considered by the Parole Board.’.

No. 63, in clause 2, page 2, line 28, leave out subsection (2).

No. 64, in clause 2, page 2, line 36, leave out subsection (3).

No. 65, in clause 2, page 2, line 44, leave out subsection (4).

No. 67, in clause 2, page 3, line 1, leave out ‘a serious’ and insert ‘an’.

No. 68, in clause 2, page 3, line 2, at end insert

‘in respect of which he has been sentenced to an immediate term of imprisonment—

(i) of not less than seven years, or

(ii) for an indeterminate period in respect of which he is ordered to serve a period of not less than seven years in custody.’.

No. 69, in clause 2, page 3, line 4, after ‘Wales’, insert

‘in respect of which he has been sentenced to an immediate term of imprisonment—

(i) of not less than seven years, or

(ii) for an indeterminate period in respect of which he is ordered to serve a period of not less than seven years in custody.’.

No. 137, in clause 2, page 3, line 8, at end insert

‘in respect of which a court would have been entitled to impose an immediate sentence of imprisonment of not less than seven years or a mandatory or discretionary life sentence’.

No. 70, in clause 2, page 3, line 9, leave out subsection (5).

No. 151, in clause 2, page 3, line 23, leave out subsection (6).

No. 71, in clause 2, page 3, line 26, leave out subsection (7).

No. 73, in clause 3, page 3, line 32, leave out ‘a serious’ and insert ‘an’.

No. 74, in clause 3, page 3, line 32, at end insert

‘in respect of which he has been sentenced to an immediate term of imprisonment of not less than seven years and to whom section 2(1A) of this Act applies’.

No. 75, in clause 3, page 3, line 33, leave out ‘a serious’ and insert ‘an’.

No. 76, in clause 3, page 3, line 34, after ‘Ireland’, insert

‘in respect of which that person has been sentenced to an immediate term of imprisonment of not less than seven years and to whom section 2(1A) of this Act applies’.

No. 77, in clause 3, page 3, line 36, leave out ‘a serious’ and insert ‘an’.

No. 78, in clause 3, page 3, line 37, leave out ‘(whether or not such an offence was committed)’ and insert

‘in respect of which that person has been sentenced to an immediate term of imprisonment of not less than seven years and to whom section 2(1A) of this Act applies.’.

No. 80, in clause 3, page 3, line 38, leave out subsection (2).

No. 82, in clause 3, page 4, line 8, leave out ‘a serious’ and insert ‘an’.

No. 83, in clause 3, page 4, line 8, at end insert

‘in respect of which he has been sentenced to—

(i) an immediate term of imprisonment of not less than seven years, or

(ii) a mandatory or discretionary life sentence and, in respect of an offence committed in England and Wales, section 2(1A) of this Act applies.’.

No. 84, in clause 3, page 4, line 10, after ‘Ireland’, insert

‘in respect of which he has been sentenced to—

(iii) an immediate term of imprisonment of not less than seven years, or

(iv) a mandatory or discretionary life sentence and, in respect of an offence committed in England and Wales, section 2(1A) of this Act applies.’.

No. 85, in clause 3, page 4, line 12, leave out ‘a serious’ and insert ‘an’.

No. 86, in clause 3, page 4, line 13, leave out ‘(whether or not such an offence was committed)’ and insert

‘in respect of which that person has been sentenced to—

(v) an immediate term of imprisonment of not less than seven years, or

(vi) a mandatory or discretionary life sentence and, in respect of an offence committed in England and Wales, section 2(1A) of this Act applies.’.

No. 116, in clause 20, page 12, line 19, leave out paragraph (a).

No. 117, in clause 20, page 12, line 23, leave out ‘a serious’ and insert ‘an’.

No. 118, in clause 20, page 12, line 23, at end insert

‘in respect of which has been sentenced to an immediate term of imprisonment of not less than seven years and to whom section 1(ab) of this Act applies’.

No. 122, in clause 21, page 13, line 7, leave out ‘a serious’ and insert ‘an’.

No. 123, in clause 21, page 13, line 10, leave out ‘a serious’ and insert ‘an’.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The amendments all stand in my name, and I straight away acknowledge that their purpose is to change the architecture of the Bill. I have tried to change the definition of a serious offence. As the Committee will appreciate, a serious offence is defined in schedule 1 to the Bill. It is, incidentally, an amendable schedule. That is, the Secretary of State can amend the contents of schedule 1 to delete or for that matter include items. I think that the clause is at the heart of the debate. Although the phrase “a serious offence” sounds weighty, the schedule shows that many of the offences are hardly of a character to qualify for the draconian orders that the Committee is considering.

It would be possible for me to go on at great length, but you would accuse me of filibustering, Mr. Bercow. I could read out the whole schedule, but I am not going to do so. I shall identify some matters, and I make the point that because I am not going to read out the whole schedule, I do not want to hear the Government Whip say later that we are taking too much time. I could take a lot more time if I wanted to, and it may be helpful to keep that in mind.—[Interruption.]

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Whip has no authority over me, as he realised many years ago. He and I have a good relationship, but it is an arm’s length one.

It is worth reminding ourselves of what falls within schedule 1. “Prostitution and child sex” fall within it, and while I am willing to accept that child sex is a serious matter, I am not sure that

“keeping a brothel used for prostitution” is. I am not sure that

“causing or inciting prostitution for gain” or “controlling prostitution for gain” are serious offences. I am not sure that “obtaining services dishonestly” or

“acting as a gangmaster other than under the authority of a licence, possession of false documents, etc.” are serious offences. I am not sure that

“making, importing or distributing an illicit recording” is a serious offence—ditto,

“making, importing or distributing an illicit recording” and

“making or dealing...in unauthorised decoders” and an

“offence under section 1 of the Salmon and Freshwater Fisheries Act 1975...(fishing for salmon, trout or freshwater fish with prohibited implements”.

I have no doubt that in the eyes of my noble Friend Lord Kimball they would be serious offences, but different views can be legitimately held.

Is

“An offence under section 14 of the Wildlife and Countryside Act 1981...(introduction of new species)” a serious offence? Is

“prohibition on unauthorised or harmful deposit, treatment or disposal...of waste” a serious offence? Is the

“purchase and sale...of endangered species and provision of false statements and certificates” a serious offence?

My point is that anyone looking at the schedule will be struck by the fact that it is a rag-bag of offences, some of which are grave and some not, but all are classified as serious offences, in respect of which a serious crime prevention order can be made. That is deeply offensive, because it is not just that a person could be convicted of those offences and give rise to the making of an order, but that that person could be facilitating another person at arm’s length from the unlawful fishing, and I suppose that an order would apply to the person who sends the unlawful instrument to the fisherman, and so on. It is not right.

What should we do? Let us assume for a moment—this is a big assumption—that we should go down the road of having a serious crime prevention order. We should try to define what we mean by a “serious crime” that attracts such an order. I do not believe that it is possible to do that by categorisation without exposure to ridicule, which is what the Government have done. Better by far is to look at sentences, because they are a mark of whether an offence is serious. The court will have considered all the facts and come to a view, and the sentence will reflect the court’s view of the gravity of the offence.

I have selected as my criterion an immediate term of imprisonment of seven years, but I do not suggest for a moment that that should be writ in concrete. The Government might not like seven years, and might suggest five or 10 years. I would not quarrel with that, and that might be a sensible way forward, but we should not try to categorise offences. We should determine whether an offence is serious by reason of the penalty that it attracts. That is a much better way of determining whether something is truly serious and of a quality to attract an order.

One technical point which the Committee will have observed is that we also have to deal with life sentences and what are known as IPPs—imprisonment for public protection. As the Committee will know, the courts now have extended powers to impose extended sentences and life sentences. This has to be addressed and as the technical way forward I suggest that the seven-year test should be incorporated as being relevant to the period at which point the parole board can safely consider whether the person can be safely released. This matter is not set in concrete—one could have five or 10 years. It is a matter for debate. What I do think is wrong is the categorisation.

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

I am seeking clarification. Would the right hon. and learned Gentleman explain to the Committee what would happen if two people, perhaps from different parts of the country, had committed the same offence but in the first case the person had been sentenced to six years’ imprisonment and in the second case the person had been sentenced to eight years’ imprisonment? Would this mean that, even though the offence was identical, in one case it was regarded as serious and in the other case it was not?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

It is unlikely to arise in this sense: if they were co-defendants in one trouble, of course the judge would have regard to the impact—I take the hon. Gentleman’s point. If they were co-defendants convicted for precisely the same offence the judge could determine whether it was just. If they were not convicted on the same indictment or in separate trials then one must not assume that the offences are the same because the degree of culpability within a particular offence can vary substantially.

None the less, the same point is also raised under the existing Bill. Under the existing Bill the fact that something is a schedule offence only triggers the ability to make the order; it does not require the making of the order. It is possible to have precisely the same situation arising on the existing Bill as on my suggested reshaping of the architecture.

I do not therefore think that there is anything fundamentally difficult about this. We obviously could get orders made that are differential, I accept that, but I do not think that goes to the heart of the matter.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

Does the right hon. and learned Gentleman accept that a sentence and the length of a sentence necessarily reflects not the offence but the individual who is sentenced by the court? It is perfectly possible, therefore, for an identical offence to be committed by two individuals and for them to receive two different sentences before the same court.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Of course, a sentence reflects a number of things. As a general rule, Parliament only applies maximum sentences. There are mandatory sentences, particularly for murder and some other crimes, but it is very rare. When a court imposes a sentence it is doing at least three things. First, it is addressing the offence itself—the offence on which the person is charged. Secondly, it is addressing the question of the culpability of that particular individual. Thirdly, it could also be considering public protection. I am sure that I could think of other considerations that come into play when a court is concluding a sentence. For the same offence, however, there are often quite different sentences reflecting differing degrees of culpability, differing backgrounds of individual offenders and actually within the same offence differences as to mode and conduct. So of course there are different penalties.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

Is the right hon. and learned Gentleman now undermining the essence of the argument that he is advancing by relying on the sentence imposed by the court?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

No, because we come back to this basic point, which is that we are providing for a very  draconian order. I do not think anybody can seriously dispute that. Given that we are going down this road at all, the question is how to define that class of offence which should trigger such a draconian power. We have to bear it in mind that it relates not only to offences that the person who is to be the subject of the order has committed, but offences that he has not committed but may have facilitated a third party to commit.

I accept that there are two choices. We could try to categorise offences in a schedule that is amendable—I dislike that intensely. Or we could let the court decide what is truly serious. The way that a court decides what is truly serious, generally speaking, is by reference to the sentence. If I have to go down this road, which I very much dislike because I dislike part 1 of the Bill intensely, I would very much rather use the sentence imposed by the court as a criterion than anything else. That is not to say that that situation is perfect, but I am against the Bill anyway, and I am trying to improve a bad Bill. I am sure that using the categorisation is wrong. I am perfectly prepared to listen to alternative arguments about the length of sentence, because the sentence is a better way forward.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I thank the right hon. and learned Gentleman for the way in which he made his points. I shall pick him up on a couple of them, but I say to the Committee that it is easy to try to undermine the whole schedule by pointing to one or two aspects that, taken out of context, we do not regard as serious crime. The right hon. and learned Gentleman mentioned fishing for or poaching the odd salmon here and there. Although it is an easy debating point to make, none of us would expect a judge in the High Court to impose a serious crime prevention order on somebody poaching one trout or salmon.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

Or a red herring.

It is important to put that point to the Committee. Points of debate are one thing, but using them to try to trivialise the schedule is another. I cannot conceive of a situation in which the High Court would act in the way that was suggested. Since environmental crime was pointed out, many of our constituents and, indeed, many people in the country would think that the type of environmental crime that the schedule refers to is an extremely important crime which should be regarded as serious; and given the increasing importance of environmental issues, many people would wonder why it had not been included in the schedule.

Although the right hon. and learned Gentleman mentioned that some Lords had pointed to small-scale poaching, other Lords pointed out the serious nature of organised poaching. I think it was Lord Dear—I apologise if I am incorrect—who referred to an incident in which explosives had been used to reach a number of salmon or trout. He regarded it as very serious, and he was right. We all agree on the inclusion of offences such as arms and drugs trafficking, which are easy examples. There are other offences through  which people seek to ridicule the schedule, but on a moment’s proper reflection, they are properly and appropriately included.

The amendments would be made to the definition of a serious offence for the purposes of this part of the Bill. We will return to the issue later when we discuss schedule 1 in more detail, but perhaps it would be helpful to discuss the concept of a schedule approach now, and the specific content when we discuss the proposed amendments to the schedule. I do not propose to refer directly to each amendment; I hope that the Committee will find it more useful if I talk to the broad principles in question.

First, the amendments would change the approach in the Bill and replace it with one based on a tariff of seven years. I ask the Committee to resist the amendments. It will help if I explain why the Bill is drafted as it is. Those who commit serious crime do not and will not limit themselves to a certain set of crimes because we set out what that list should be in this House. We need to be realistic; serious criminals are intelligent and adaptable people who see themselves as business men—and successful business men diversify when necessary.

If anyone here can produce with absolute certainty an exhaustive list of the crimes that such criminals commit, or will commit in future, I am sure that we would all be pleased, but unfortunately that is simply not possible. Let me reassure the Committee that we do not mean to provide that the orders should be available against any criminal or on the basis of any crime. That is not the Government’s intention and would not fit with the targeted and intelligence-led type of law enforcement that the orders are designed to support.

As a result, we have provided a schedule of offences to show the large majority of the offences in relation to which the use of the orders would be appropriate. Furthermore, we have provided within the framework of the schedule a discretion for the court to treat an offence as serious if, in the circumstances of the case before it—circumstances that we cannot know or foresee—it considers the offence serious enough to be treated as if it had been specified in the schedule.

The issue has generated discussion and debate, but it is extremely important that we do not fetter the discretion of the court. If we did, the court might not in future be able to impose a serious crime prevention order for an unspecified serious crime because it would not have that discretion. It is entirely appropriate that we say to the court, “If you think something is serious enough for a serious crime prevention order, you have the power to treat it as such.”

We shall come to the latter point shortly. However, schedule 1 provides a strong guideline for the level of offence that we are talking about. No matter what the circumstances, no High Court judge will think that littering, shoplifting or the taking of an individual trout from a stream are so serious that they should be treated as if specified in the schedule. I simply do not believe that, and no member of this Committee does either.

We also consider that the alternative approach, suggested by the right hon. and learned Gentleman in  the amendments, is too much of a blunt instrument. We wish to maintain flexibility, but also to ensure that the Bill is targeted at offences committed by serious career criminals. In the Bill, the meaning of “serious offence” is more subtle than the level of punishment that it attracts. The Bill focuses on offences most likely to be committed by organised criminal networks. That primarily means offences that can be committed on a large scale for a large profit.

Amendment No. 116 would delete clause 20(1)(a), which allows the Crown court to make an order in respect of a case that has been committed to it from a magistrates court. It is appropriate for the Crown court to have powers in such circumstances for two reasons. First, the definition of a serious offence would be the same; the behaviour under consideration would not be lower level simply because the conviction was given by magistrates. Secondly, the case would be serious; when magistrates courts decide that their sentencing powers are inadequate for the seriousness of a case before them, they commit it to the Crown court. Given my comments, I hope that the right hon. and learned Gentleman will withdraw the amendment.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 12:30, 26 June 2007

No, I will not withdraw the amendment, although I may not get as much support as I would like. No matter—I am used to standing alone and do not care about it. We should come back to the basic point: we are dealing with very serious orders. I do not believe that we should expose people to such orders unless their conduct is truly serious. I do not think that categorisation is the best way forward for the reasons that I have given. I think that a sentence imposed by a court is probably the best assessment of the gravity of an offence that could be constructed. I am not dogmatic about the seven years. I would be prepared to compromise on that, but not on the general approach set out in the amendments.

Question put, That the amendment be made:—

The Committee divided: Ayes 1, Noes 9.

Division number 4 Nimrod Review — Statement — Clause 2

Aye: 1 MP

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I beg to move amendment No. 57, in clause 2, page 2, line 23, leave out paragraphs (b) and (c).

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 58, in clause 2, page 2, line 23, after ‘has’, insert ‘knowingly and intentionally’.

No. 3, in clause 2, page 2, line 25, after ‘has’, insert

‘conducted himself in a way that was unreasonable in the circumstances and, by doing so, has’.

No. 60, in clause 2, page 2, line 25, after ‘has’, insert ‘knowingly and intentionally’.

No. 66, in clause 2, page 2, line 45, at end insert ‘knowingly and intentionally’.

No. 79, in clause 2, page 2, line 38, after ‘the’, insert ‘knowing and intentional’.

No. 72, in clause 3, page 3, line 31, at end insert ‘knowingly and intentionally’.

No. 81, in clause 3, page 4, line 7, at end insert ‘knowingly and intentionally’.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

All the amendments, except amendment No. 3, are in my name. The Committee will have seen that I am not a team player. I do not like teams—or playing, for that matter. I hope that I can persuade my hon. Friends to do a little better on the next group of amendments. They will have plenty of opportunity during the course of the Committee to rally behind my amendments; I can tell them that now.

Let us return to the purpose of the amendments. I shall not continue to emphasise in detail how grave the orders are, but we need to remind ourselves at every stage that we are talking about serious consequences for individuals. What I am trying to do in this group of amendments is twofold. I want to confine the impact of the orders to those who have in fact committed an offence known to the law—in other words, to exclude the facilitator from the ambit of the order-making powers. Many amendments have been tabled, and I could identify clearly the effect of each, but I do not suppose that you would want me to do that, Mr. Bercow. It might be called filibustering, and I do not want the Government Whip to get uneasy about these matters; otherwise, I would go on longer and longer. [Interruption.] I am very glad to hear that.

The first thing that I want to do is confine the impact of the orders to those who have committed offences. However, if I cannot achieve that highly desirable objective, I want to incorporate the concept of what lawyers call mens rea into the facilitation offence. Unless I have overlooked some part of the Bill, the facilitation offence is one of strict liability. There is no requirement for intent or, indeed, for knowledge, which I do not believe is fair. It is all right to say that they are not criminal orders but civil powers. So they are! But they could have the most appalling consequences—the sorts of consequences that I do not think should be visited on people who do not have the knowledge or required intent.

I have tried to confine the impact of the orders, therefore, as far as the facilitators are concerned, to those in respect of whom it can be established that they acted “knowingly and intentionally”. I suggest that that is in accordance with the basic principles of natural justice.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

I take this opportunity, rather belatedly, to welcome you to the Chair, Mr. Bercow.

I support my right hon. and learned Friend’s amendments, which would add the words “knowingly and intentionally” to the clause, because, like him, I think that in relation to these very serious matters and the serious consequences that can be visited on an individual who is made subject to a serious crime  prevention order, it is vital that it is made perfectly clear that an individual could not find himself in such a position without knowing what he was doing and intentionally causing the harm that the Government seek to avoid. It seems probable that if the clause is left as it is, there will be cases in which someone finds themselves subject to an order accidentally, without having intended to do anything wrong.

I return, without apology, to the explanatory notes. We must remember that those notes constitute the Government’s assistance to us all in understanding what the Bill is intended to achieve. Paragraph 26 on page 6 states clearly:

“This means that it does not matter if the respondent did not, for example, intend to facilitate the commission of a serious offence, or had no knowledge that he was conducting himself in a way that was likely to facilitate serious crime.”

If someone has not done so intentionally or knowingly, it is unacceptable that they should be subject to the types of restriction involved, which are, as we have discussed before and will no doubt discuss again, completely analogous to punishment in other contexts.

One has only to consider, in the context of serious financial crime, the position of accountants who may be doing things at the behest of their clients and who end up facilitating one of the offences without intending to or knowingly doing so. On that basis, I support the amendments tabled by my right hon. and learned Friend.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I apologise to you, Mr. Bercow, because I did not welcome you to the Chair either and I certainly do welcome you. What is more, I admire the way in which you ruled the Committee with such firmness early on in its proceedings.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

Indeed, you could say that I am grateful for it.

Photo of Nick Herbert Nick Herbert Shadow Minister (Home Affairs)

I support my right hon. and learned Friend’s amendments, particularly amendment No. 57, for all the reasons that my hon. Friend the Member for Rugby and Kenilworth set out. It seems wrong to me, too, that it is possible for someone to be subject to a serious crime prevention order without having intended the conduct that would make him liable for it, particularly when there is a reverse burden of proof placed on him to show that his actions were reasonable. We referred to that early on.

I see no reason why the proposal should add a significant evidential burden to the operation of serious crime prevention orders. They are so wide in their potential effect. The Government explicitly said in their explanations of how the orders would operate that the type of activity that they might catch is, for instance, the supply of vehicles with compartments that could be used for the running of drugs and so on.  It is important that some safeguard is built in that would make it clear that the provision cannot catch that type of activity unless it can be shown that the person intended that activity to take place. That would be a very important safeguard, given the wide ambit of the potential restrictions on people’s liberty and the serious penalties that could attach to breach of those restrictions, particularly as no offence needs to have been committed by the person concerned, as we have all observed. Indeed, under the terms of the clause, people could be caught for tangential involvement with offences. I hope that the Minister will view the amendment sympathetically or explain why a simple evidential test like this one should not be included.

Photo of Jeremy Browne Jeremy Browne Opposition Whip (Commons), Shadow Minister (Home Affairs) 12:45, 26 June 2007

I shall be brief. I tabled amendment No. 3, the purpose of which is to require the prosecuting authority to establish that a person was acting unreasonably, thereby reversing the burden of proof in the Bill. Following on from the two brief speeches that have just been made, I shall be interested to hear from the Minister precisely how this part of the Bill will work in practice.

Am I right in believing that were I to lend someone a fishing rod and he then fished illegally and caught salmon, I would fall foul of this part of the Bill? As I understand clause 2(1)(c), if I were to open a fishing shop within walking distance of a lake that contained salmon, I would have to be certain that someone who came into my shop to buy a fishing rod did not intend to use it for illegal purposes, even if I could not be certain one way or the other of their intention.

Earlier, the Minister said that the salmon and trout were red herrings, but that slightly begs the question of why the provision is in the Bill if it is so easy to ridicule. One could make examples of this sort right across the piece; for example, would taxi drivers who take people to the scene of a crime, knowingly but perhaps unwittingly, fall foul of the sanctions as well? I would be grateful if the Minister could address those specific points.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

I shall deal now with one of the points that the hon. Gentleman made, although I will return to it later in my remarks. Someone in a fishing tackle shop who sells a rod to someone who then goes off and poaches would not be subject to a serious crime prevention order. But if somebody asked the person in the fishing shop whether they knew that lots of people were coming to the shop to buy rods and then going off to poach salmon, but no action was taken, or if the shop sold some sort of material that was then used for something that could be regarded as serious, a crime would have been facilitated, and an order may be appropriate. However, the shop owner could just be selling stuff that he expected to be used appropriately and normally. I shall deal with that in my later remarks.

Someone may buy a computer and then use it for criminal purposes, but the person who sold the computer facilitated a crime without realising it. The problem comes when somebody is told, but refuses to take any action as a consequence of being told.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am listening to what the Minister is saying, but I am not sure that he is right. Facilitation does not carry within it, by itself, the concepts of intent or knowledge. It is an act. It is strict liability. Facilitation itself, if it is to be in the Bill by itself, is a strict offence.

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

My understanding of the situation is that in civil proceedings, as these would be, what I am saying would be right. We used the example of somebody who sells a computer or fishing tackle that is then used without their knowledge for something else. An order would not be appropriate for them. However, even though they did not know and had no understanding of what was taking place, if they were told what the equipment was being used for but still carried on, they might be subject to a serious crime prevention order.

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

I am still unclear on that. Let us say that I run a kitchen utensils shop and I sell—among a range of items—knives. At what point would I become culpable for aiding and abetting or facilitating the committing of grievous bodily harm through knife crime? Is it the point when someone comes in and says, “You know those kitchen knives that you are selling, well most people use them to make tasty meals, but one or two people come in and buy them as weapons”? How many people have to come in and tell me that some people use them as weapons for me to be found to be facilitating a crime by not closing my shop?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

Let us say that the court or one of the applicant authorities were to try to impose a serious crime prevention order on someone like the kitchen shop owner who sells one or two knives. I do not believe that that would actually happen. All sorts of examples could be made up in relation to the hon. Gentleman’s point that would just not happen in the real world. Let us say that somebody says, “Do you know that those knives are being used to kill people?” Let us then say that the kitchen shop owner carries on selling those knives and the applicant authority believes that it should put a serious crime prevention order on them. The kitchen shop owner who is selling the knives will then have the opportunity to demonstrate to the court that they have acted reasonably. If they can do so, they will not be the subject of a serious crime prevention order.

As I say, examples can be made up and the one that I used was the fishing shop owner. Let us say that somebody is unknowingly facilitating serious crime through the selling of equipment and that comes to the notice of somebody who says to them, “Do you know that the selling of that equipment from your shop, business or premises is facilitating serious crime?” If the person says that they do not know anything about it and it is nothing to do with them, and they carry on selling the equipment, they may then become the subject of a serious crime prevention order.

The important point is that the person on whom the applicant authorities are trying to impose a serious crime prevention order has the opportunity in court to demonstrate that their behaviour was reasonable. If they can do that, they will not become the subject of a serious crime prevention order.

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

Does not that get to the nub of the issue and combine the point made by the right hon. and learned Member for Sleaford and North Hykeham with the point that I was trying to make in amendment No.3?

Let us settle on the example of the fishing rod shop owner and pretend that I own a fishing rod shop that is in an area where there are lots of lakes and rivers for fishing, where it would be an obvious commercial decision to open a shop. There are likely to be people in the immediate vicinity who come into my shop to buy a fishing rod and fish nearby. I cannot be certain how the fishing rods are used and whether they are used properly or improperly. If somebody walks into the shop and tells me that one of the fishing rods bought in my shop is being used to fish illegally for trout, under the Government’s model, I have to prove in court that I have done nothing wrong, rather than the court proving that I have. Can the Minister not understand why that is of concern to us?

Photo of Vernon Coaker Vernon Coaker The Parliamentary Under-Secretary of State for the Home Department

It goes to the heart of the hon. Gentleman’s amendment about reasonableness and unreasonableness and who should have to prove that. On the point that he makes, let me take him again through the process as I see it, which I hope will clarify the matter—even if he does not agree with my point. If he sells equipment from his shop, whether it is a computer or fishing tackle shop, that is used for serious crime—let us leave aside somebody just taking one fish—as the court would define it, he facilitated that crime without knowing or intending it; he sold the equipment and the crime happened. He sold the computers and people used them for the purposes of committing serious crime.

If, however, a law enforcement agency or somebody were to go to him and ask, “Do you know that the computers that you are selling to this business, or the fishing equipment that you are selling to these individuals, are being used for serious crime?” and he were to say, “Well, I’ve got no intention of it being used for serious crime. I’m just a person selling fishing tackle,” or, “I’m just a person selling computers. What I am expected to do about it?” he might be subject to a serious crime prevention order. The applicant authority would then say to the prosecuting authority, “We believe that this person should be made the subject of a serious crime prevention order. They are facilitating a crime. We have told them so and they have said, ‘What’s it got to do with me? I’m just conducting my business.’ Yet they are facilitating crime by the nature of their business.”

I suspect that the hon. Gentleman would believe that it is perfectly reasonable for somebody in law enforcement to go to a business and ask, “Do you realise what is going on with the goods that you are selling?” I think that he would expect a proper, legitimate, upstanding business person who was told by a law enforcement agency that their goods or services were being used to facilitate serious crime to say, “I didn’t realise that. I’m going to stop it.” We would not need to go down the route of serious crime prevention orders at all, because the vast majority of business people would agree and comply with the law. They would say, “Thank you for bringing it to my attention.  We all have a common interest in tackling such illegal activity and serious crime, and I will stop.”

If a person did not stop their activity and just said, “Well, it’s not my intention for it to be used for crime, I’m just in business. I’m just selling the computers, and it’s nothing to do with me what happens with them,” although they did not intend it to be used for serious crime, that would be an abrogation of what most of us would see as the sensible, reasonable course of action.

In such a case in which a person did not respond, the law enforcement agency would go to the applicant authority, such as the Serious Fraud Office, the Revenue prosecutors or the Crown Prosecution Service, and say, “We believe that in this situation it would be appropriate for a serious crime prevention order to be used.” If that were taken before the court, the respondent would be able to say to the court, “Look,  what I did was perfectly reasonable.” It would then be a matter for a High Court judge to determine. In the circumstances that I have illustrated—I apologise if I have done so long-windedly—the fishing tackle or computer shop owner could say to the court, “I acted reasonably. It is not appropriate to put a serious crime prevention order on me.” That would then be a matter of judgment for the court.

I shall give the hon. Gentleman another example, which I think was used in the Lords. Somebody owns a bed and breakfast and is asked by law enforcement, “Do you know that lots of your lodging rooms are being used to traffic individuals?” If the owner were to say, “Nothing to do with me; I’m a bed and breakfast owner,” the vast majority of hotel owners—

It being One o’clock, The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o’clock.