Clause 20

Serious Crime Bill [Lords] – in a Public Bill Committee at 12:15 pm on 3 July 2007.

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Orders by Crown court on conviction

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

I beg to move amendment No. 121, in clause 20, page 12, line 44, leave out from ‘concerned;’ to the end of line 1 on page 13.

The amendment is small, but I suggest that it is surprisingly important. It would delete the provision contained in subsection (7)(b), namely that an order can be made by the Crown court in addition to an order “discharging the person conditionally”. I do not want to go into too much detail, but my wish to delete that paragraph goes back to an earlier debate and the question of what offences should be caught or classified as serious offences.

The Committee may remember that I had suggested that the penalty was a good way of identifying those offences that should be treated as serious crimes under the Bill. One thing is absolutely plain: in the generality  of cases, a person who has been conditionally discharged is being treated extraordinarily leniently. It inevitably follows that an offence that attracts a conditional discharge can in no sense, in ordinary language, be considered serious. It is almost the least penal of punishments that can be imposed. An absolute discharge is probably the least penal, but a conditional discharge is the second least penal or oppressive.

By including that provision, we are enabling the Crown court to impose a pretty draconian order—we come to the arguments about clause 6—in respect of somebody where the offence, as determined by the nature of the penalty, is by definition pretty trivial. I do not like the feel of that one little bit, especially when one considers the renewal provisions that we have debated already. On any view, I would say that subsection (7)(b) should be cut out of the Bill.

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

I support the amendment. In this context, we have to look back at what has been said about the reason for seeking serious crime prevention orders. I referred earlier to the fact that we have been told that, in essence, it is anticipated that only 30 applications for serious crime prevention orders would be made a year. We have been told that the intent would be to use them for the “Mr. Bigs”—in other words, a small, narrowly defined group of serious offenders. In considering the Bill and how it is framed, it is appropriate to consider not only the types of offences that are specified in schedule 1 as denoting seriousness for the purposes of the Bill, but the range of punishment that might be available.

My right hon. and learned Friend has focused on the point about conditional discharges. It would seem strange that one of those 30 orders against a Mr. Big would apply to someone who had received a conditional discharge, because that would suggest that the court did not regard the offence as serious in that context. My right hon. and learned Friend has made a persuasive case and therefore certainly has my support from the Front Bench in pursuing the amendment.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

Briefly, I, too, would like to support the amendment that my right hon. and learned Friend the Member for Sleaford and North Hykeham has moved, for the reasons given by him and, from the Front Bench, by my hon. Friend the Member for Hornchurch.

A substantial imbalance would be created if subsection (7)(b) were to remain in the Bill, because somebody receiving a conditional discharge can receive such an order in consequence of a criminal conviction only if either their involvement in the offence was minimal or their personal circumstances were so remarkable that that was thought to be the appropriate decision in the case. In either situation, for that to be the criminal penalty and for a civil order placing extraordinarily onerous restrictions then to be imposed would give the lie to the argument that the provisions are only preventive and not punitive, and that they are designed purely to ensure that those with a serious and detailed involvement either in a previous commission of serious crime or in a likely future one need to be controlled. Those are not the individuals who are likely to be subject to such an order. If the Minister were to  insist on retaining the provision in the Bill, I suspect that his other arguments would be substantially undermined.

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

It is fair to say that 30 was an approximate figure for the number of orders that we thought might be used by the courts in any one year. Of that figure, I do not expect that many would be used on the back of a conditional discharge.

However, one could foresee a situation in which it might be useful for the courts to have the power to impose a serious crime prevention order, should they believe that to be appropriate in the circumstances. For example, suppose someone who is a serious criminal has been convicted of a serious offence, however defined—in schedule 1 or at the court’s discretion—but is too ill or old to go to prison. In those circumstances, people are sometimes given conditional discharges, even though they have committed serious offences.

In that situation, it might be that a serious crime prevention order could be given to the individual concerned. The person could communicate, so one could make them the subject of a serious crime prevention order by saying that there will be restrictions on their communication. That is one example of a situation in which such an order might be appropriate. There might well be others. A conditional discharge is sometimes given to somebody who is found guilty of a serious offence. In those circumstances, the court ought to have the ability to use a serious crime prevention order if it thinks it appropriate.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons) 12:30, 3 July 2007

I suspect that, in the circumstances that the Minister has described, it is far more likely that the criminal court would impose a suspended sentence rather than a conditional discharge, which is a wholly different response to such a situation.

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

The court might well give a suspended sentence, but, with respect, I am talking about a situation in which it gives a conditional discharge. I take the hon. Gentleman’s point that the court might well give a suspended sentence. Given that I have conceded that point, however, he must concede that it might also give a conditional discharge, in which case a serious crime prevention order would be appropriate.

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

Will the Minister contemplate the fact that under the amendment, it would be open to the court to acknowledge that, if a conditional discharge order was given, a serious crime prevention order would not be applicable? Will he weigh that as a factor in determining what an appropriate sentence would be?

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

My understanding of the amendment is that it would make it impossible for the Crown court to make an order where somebody has been made the subject of a conditional discharge. That is absolutely the point of the amendment. With respect to the hon. Gentleman, that is the point of disagreement. I think that there might be circumstances in which a serious crime prevention order should be available to the court where somebody has been conditionally discharged.

Subsection (7) is drafted to show that the orders are not a form of punishment and that they must be viewed separately from the disposal that the court makes in relation to a person who has been found guilty of a serious offence. The court may impose an order only in addition to the punishment that it hands down for the offence, or in addition to a conditional discharge. That is an important point of principle: in this area, as in others, the orders are not designed as an alternative to the criminal process of prosecution and punishment.

The practical effect of the amendment, which is the effect that I believe the right hon. and learned Member for Sleaford and North Hykeham is trying to achieve, would be to ensure that an order would not be available to the court where its disposal was a conditional discharge. I do not agree with that; the proposed subject of the order might have been conditionally discharged, but would also have just been found guilty of a serious offence. Notwithstanding the fact that the court has considered it expedient to issue a conditional discharge, it should be open to the court to put in place a reasonable, proportionate order, if it considers that such an order would protect the public by preventing, restricting or disrupting the subject’s involvement in serious crime. For those reasons, I hope that the right hon. and learned Gentleman will withdraw his amendment.

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

I wonder whether we can see a way forward here. I like to be collegiate occasionally. The Minister is wrong when he says that the orders are not intended as an alternative to prosecution. We know full well that they are; page 31 of the White Paper makes that wholly plain.

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

We discussed this in the previous sitting. It is actually the Green Paper. Whatever it says, we are discussing the Bill. I have made it quite clear, as does the Bill, that we do not see the orders as an alternative to prosecution.

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

If it waddles like a duck, looks like a duck and sounds like a duck, it is a duck. This legislation is an alternative to prosecution because it sounds like a duck, waddles like a duck and looks like a duck—and it has been described as a duck in previous publications. It is a duck.

I am perfectly willing to accept that the Minister has made a valid, though narrow, point in relation to conditional discharge. I can see that it is a theoretical possibility that there are individuals who are so ill or so old that they are unlikely to go out and commit serious offences, but who might make suggestions to third parties who do so. I hope that he, in turn, will accept that this provision is a creeping mechanism that allows serious orders to be made in respect of fairly trivial matters—each of us has a point.

There is a way forward. I suggest that the Minister amend the Bill on Report so as to include the concept that the court has made a conditional discharge by reason of some personal circumstance associated with the person who is the subject of the conditional discharge. We can talk about whether there should be specific reference to old age, sickness, or anything else. I accept that his point has merit, so if he were to ring  fence the concept in order to reflect it, he would find me extraordinarily collegiate. On that basis, 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 Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

In constructive spirit in which this Committee has been conducted, I can tell the right hon. and learned Gentleman that I have heard what he has said and we will consider his points—I meant to say that when we were debating the amendment. I am not making any commitment, but I thank the hon. Gentleman for trusting me to do that.

Clause 20 ordered to stand part of the Bill.

Clauses 21 to 23 ordered to stand part of the Bill.