With this it will be convenient to discuss the following: Government new clause 11 Injunctions to prevent gang-related violence
(1) A court may grant an injunction under this section if two conditions are met.
(2) The first condition is that the court is satisfied on the balance of probabilities that the respondent has engaged in, or has encouraged or assisted, gang-related violence.
(3) The second condition is that the court thinks it is necessary to grant the injunction for either or both of the following purposes
(a) to prevent the respondent from engaging in, or encouraging or assisting, gang-related violence;
(b) to protect the respondent from gang-related violence.
(4) An injunction under this section may (for either or both of those purposes)
(a) prohibit the respondent from doing anything described in the injunction;
(b) require the respondent to do anything described in the injunction.
(5) In this section gang-related violence means violence or a threat of violence which occurs in the course of the activities of a gang or is otherwise related to such activities..
Amendment (a) to new clause 11, at end insert
(6) In this section gang shall mean a group of people who see themselves or are seen by others as a discernable group and exhibit any one or more of the following factors
(a) engaging in criminal activity;
(b) identifying with a particular geographical area;
(c) having some form of identifying organisational feature;
(d) being in conflict with other similar gangs..
Government new clause 12Contents of injunctions.
Government new clause 13Contents of injunctions: supplemental.
Government new clause 14Applications for injunctions under section [Injunctions to prevent gang-related violence].
Government new clause 15Consultation by applicants for injunctions
(1) Before applying for an injunction under section [Applications for injunctions under section [Injunctions to prevent gang-related violence]], the applicant must comply with the consultation requirement.
(2) In the case of an application by a chief officer of police, the consultation requirement is that the chief officer (the applicant chief officer) must consult
(a) any local authority that the applicant chief officer considers it would be appropriate to consult, and
(b) any other chief officer of police whom the applicant chief officer considers it would be appropriate to consult.
(3) In the case of an application by the chief constable of the British Transport Police Force, the consultation requirement is that the constable must consult
(a) any local authority that the constable considers it would be appropriate to consult, and
(b) any chief officer of police whom the constable considers it would be appropriate to consult.
(4) In the case of an application by a local authority, the consultation requirement is that the local authority (the applicant local authority) must consult
(a) any chief officer of police whom the applicant local authority considers it would be appropriate to consult, and
(b) any other local authority that the applicant local authority considers it would be appropriate to consult..
Amendment (a) to new clause 15, after subsection (2)(b) insert
(c) any primary care trust, mental health trust or other NHS authority that the applicant chief officer considers would be appropriate to consult; and
(d) any youth offending team, local probation service or office of the National Offender Management Service that the applicant chief officer considers would be appropriate to consult..
Amendment (b) to new clause 15, after subsection (3)(b) insert
(c) any primary care trust, mental health trust or other NHS authority that the constable considers would be appropriate to consult; and
(d) any youth offending team, local probation service or office of the National Offender Management Service that the constable considers would be appropriate to consult..
Amendment (c) to new clause 15, after subsection (4)(b) insert
(c) any primary care trust, mental health trust or other NHS authority that the applicant local authority considers would be appropriate to consult; and
(d) any youth offending team, local probation service or office of the National Offender Management Service that the applicant local authority considers would be appropriate to consult..
Government new clause 16Applications without notice.
Government new clause 17Interim injunctions: adjournment of on notice hearing.
Government new clause 18Interim injunctions: adjournment of without notice hearing.
Government new clause 19Variation or discharge of injunctions.
Government new clause 20Arrest without warrant.
Government new clause 21Issue of warrant of arrest.
Government new clause 22Remand for medical examination and report.
Government new clause 23Further provision about remands.
Government new clause 24Guidance.
Government new clause 25Supplemental.
Government new clause 26Interpretation.
New schedule 2Injunctions: Powers to Remand.
Good morning, Sir Nicholas. We are pleased that you have arrived safely and on time, even if it was a little touch and go. Good morning to the Committee.
In your opening, Sir Nicholas, you pointed out that this is an extremely important group of proposals. I am sure that the hon. Members for Hornchurch, for Chesterfield and for Oxford, West and Abingdon will agree that there are important points that must be made. We have managed to have lengthy debates in Committee when necessary, while making progress. I think that we may spend some time discussing these proposals and I see no problem with that. I am sure that other hon. Members will agree. Quite frankly, I am sure that the public would expect us to reflect on and debate the issue of gangs at some length, given its importance.
I will make a few introductory remarks before reading for the record what the provisions will do. I am sure that hon. Members will wish to respond to that and I will respond to their points as we go through.
As I have said before, I believe that there are significant pieces of social reform and public policy changes in the Bill. I will not go through them all, but Committee members will agree that we have had worthwhile and significant debates on alcohol, prostitution and police collaboration, to name just three. The issue of gangs is as important as any other that we have discussed. I am sure all Committee members agree that the phenomenon of gangs is one of the big questions that confronts us. It is easy to make populist remarks on how we should deal with gangs and to produce throwaway headline solutions. Trying to achieve something that deals with the issue is much more difficult.
I have looked at the Liberal Democrat amendments that were not selected and at those tabled by the hon. Members for Bury St. Edmunds and for Hornchurch that were selected. It is clear that the amendments reflect deep thought and consideration on this issue. The report by the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) was also a valuable piece of work. Many other reports have been done on this, and that is worth putting on the record as well.
Let us be clear what we are not talking about. We are not talking about a group of kids at the end of a street. We are not talking about some young people hanging around, and I will come to whether they are under 18 or over 18 in a moment because there is an issue there. We are not talking about people hanging around on a park bench. People often ask me, Didnt you sit around outside on a park bench? I was often near a telephone box. It was even push button A and push button B, if hon. Members can remember that. That shows how long ago it was.
These measures must not be looked at in the context of trying to criminalise young people up to 23 or 24, or whatever. We can argue about the exact age later. We are not trying to criminalise young people. These new clauses are about tackling serious, violent, aggressive, dangerous individuals. Those individuals have no regard for other members of society. Frankly, they do not frighten other people, they terrorise them. It would be remiss of this Committee and of this or any Government not to reflect on what we do about that.
This may be a point that the hon. Members for Chesterfield and for Oxford, West and Abingdon may raise, but if these people can be prosecuted through the criminal justice system it should be the first option. Nobody disagrees with that. Let us try to lay two myths: first, this is not about teenagers or people slightly older than that hanging around. Secondly, it is not about avoiding using the criminal justice system when that is the best option. It is important to put that on the record.
Public policy with respect to gangs, as with respect to all such matters, is undermined by debate about whether one is a wishy-washy liberal or a tough law enforcer, wanting either to hang and flog or to hug everyone. This area of public policy is bedevilled by that schism. No one who is of sound mind would argue that it is sufficient for someone who is dangerous, is breaking the law and has done seriously wrong, simply to say sorry. Tough law enforcement is the appropriate and the first approach.
Alongside that, we want a preventive approach and a diversionary approach as well. I had the pleasure over the weekend of going out on Operation Staysafe, which is about police and childrens services working together to try to get vulnerable young people off the streets, particularly when they are under the influence of alcohol, taking them to a place of safety, working with social workers and then engaging the parents. The shadow Home Secretary was apparently trying to do something similar on Monday morning.
Those introductory remarks are important. What are we trying to deal with here? If they have not already done so, all members of the Committee should have a look on the internetit is hard to know how to describe this, without giving gangs the respect they craveto see some of the musings and information about gangs. Anybody who says that we are trying to deal with kids hanging around should go on the internet and have a look. It is appalling. The most appalling thing about the gang stuff on the internet is that it is put there, not by people talking about things they do not do but by those actually boasting about the things they do. It is a way of communicating and trying to get at other gangs. Just Google gangs, street gangs or violent street gangs in any major city and see what comes up. That is what we are trying to wrestle with. This is about serious street violence and trying to do something about it.
After my introductory remarks I will read into the record what the new clauses do. In looking at what to do, we saw the success of what happened in Birmingham and then determinedfollowing the judgment in the courtsthat we needed to correct and change the law. This approachwhere people feel it appropriate and with the proper judicial oversightcould be used subject to two conditions: first, that somebody had been engaged in or had encouraged or assisted gang-related violence and, secondly, to prevent it in the future.
One of the key new clausesI suggest members of the Committee read it againincludes some prohibitions and requirements. I will pick a couple of the prohibitions to give a flavour to the Committee. For example, somebody cannot go into a certain area. This is to try to combat the territorialitythe postcodingthat gangs have. There are people dying on our streets because they go into the wrong postcode. That is how serious it is. There are youngand olderpeople being shot, stabbed or attacked because they go into the wrong postcode area. So there is an issue of territoriality.
The second issue I would draw attention to is that of wearing colours. Somebody asked me about football supporters. I am not talking about football supporters. One has to inject some common sense and realism into this. I am not talking about somebody wearing a rosette or a scout badge. That debases the debate. Anybody with an ounce of sense realises that. We are talking about people who wear colours to display the gang they belong to so that when they go into other areas people will know. It is like a uniform. If we fail to recognise some of this, we will not be able to tackle the scale of the issue. Before I, the hon. Member for Hornchurch or others are attacked, I emphasise that I am not saying that this applies to every young person or that it takes place in every area of the country. Let us get that out of the way before we are attacked for portraying everybody in that way. I am not. The vast majority are law-abiding. I am talking about a serious problem in some areas.
There is also a prohibition regarding the internet, which tackles something I was talking about earlier. A further very disturbing issue is the use of animals as weapons; the increasing use of dogs. We know what sort of dogs we are talking about. They are used as status symbols but they are also used to intimidate, attack and threaten. That is where we are with some of this. That is what this measure tackles. Many of us have visited police forces and communities, and the police increasingly say that such use of animals is of growing concern. Before anybody starts, I am not talking about poodles or pets, but about animals that are used as weapons. I am labouring the point, but if we are not careful the debate will move off sensible discussion about real problems and on to concernsalbeit, I suppose, legitimatethat can undermine the debate. So, the prohibitions are important.
I come now to the under-18s. The injunctions in Birmingham apply to over-18s; injunctions for under-18s are difficult. Technically, the injunctions can apply to under-18s. That is an important point, because there will be a lot of discussion about who the injunctions apply to and their impact on children. Injunctions, however, have to be enforceable and it is unlikely that they would be enforceable for somebody under 18: the court cannot fine someone who does not have a source of income and most gang members would not have a legitimate source. Nor can the court sentence someone under 18 to detention in a young offenders institutionthe penalty for breaching one of these ordersfor a civil contempt of court.
Changing the law to enable the courts to use injunctions for under-18s would involve a major change in how civil law interacts with minorsunder-18s. However, I recognise that a tool for managing under-18s would be welcomed by those on the front line, seeking to manage gangs, and by those communities most affected by gangs. This area is very contentious and I will therefore try to involve others. I have asked my officials to work with others across Government to see whether we can amend how civil injunctions work to enable the provision to be used for under-18s. I am progressing this with trepidation and care and I shall try to involve as many people as possible.
The injunctions are good, but as they are constituted there are problems with under-18s. The hon. Member for Hornchurch is a lawyer and will understand that better than I do. However, who has been arrested for the recent murder in London? Who has been arrested for many of the other murders, not only in London but across the country? It is not people aged 19, 20 or 21, although it often ismany of the injunctions in Birmingham were against people of that age group. Those arrested in these cases are aged 15, 16 or 17 and, as the hon. Member for Hornchurch says, there are problems with even younger people.
This is a difficult area. I do not mean this sarcastically, but it is a shame that the hon. Member for Oxford, West and Abingdon is not here. I can hear what the retort will be, as the Bill progresses through the House, about using such injunctions against under-18s. But no one standing where I am, with my responsibilities, could ignore what was happening on the street. The public policy challengethe social reform challengeis how to tackle that, given, as I said at the beginning, that we would use the criminal law first and try to divert people. But there are now 15, 16 and 17-year-olds and younger children involved in serious violent gang activity, and 15, 16 and 17-year-olds who are not involved in such activity but are now before the courts on a murder charge. Our task is to see whether a civil preventive tool, alongside everything else, would prevent that from happening in the first place. We should find a way, no matter how difficult or controversial, to legislate and create a civil preventive tool that prevents a 16-year-old from going to an area, wearing colours, associating with others or being used by people over 18 to do their errands or dirty work, which is increasingly happening as 19, 20 and 21-year-olds use 11, 12 and 13-year-olds to do things for them. If we can do that alongside the action that we are taking, as well as the measures that we need to take, we will contribute to making our streets safer.
I feel very passionate about the issue, because I chair a cross-departmental group that is part of our tackling knives action programme. The group examines events on a weekly basis and met yesterday morning. No murders had been reported to it for a number of weeks, but it was told of four murders at yesterdays meeting. That is what we are about; we are trying to prevent those from happening. Anyone can make jibes, but all will agree that we need to prevent people from being murdered on the streets, wherever they may be. The debate centres on how best to do that.
I apologise for detaining members of the Committee on this issue, but I hope that those important remarks are helpful to them. I know that the hon. Members for Hornchurch and for Chesterfield, and maybe other members of the Committee, will have something to say on this crucial and fundamental debate. I should also note that Government amendment 290 relates to England and Wales.
I will spend a few moments on further amendments. New clause 11 sets out the two conditions that must be satisfied before a court may grant an injunction. The first is that the court should be satisfied that the respondents past conduct has included engaging in, encouraging or assisting gang-related violence. The court must consider evidence of past behaviour to a civil standard on the balance of probabilities. The second condition is that the injunction is necessary to prevent the respondent in engaging, encouraging or assisting gang-related violence and/or to protect the respondent from such violence. A court may make such prohibitions or requirements as it considers appropriate, provided that they are necessary either to prevent the respondent from engaging in, encouraging or assisting gang-related violence, or to protect the respondent from such violence. New clause 12 provides for that in more detail.
New clause 11 also defines gang-related violence as
violence or a threat of violence which occurs in the course of the activities of a gang or is otherwise related to such activities..
The clause also stipulates that threats of violence should be included in the definition. Whether violence or threats of violence are gang-related will be a matter for the court to decide.
New clause 11(4) explains that a court may
prohibit the respondent from doing anything described in the injunction or
require the respondent to do anything described in the injunction.
Of course, a court must be satisfied that those prohibitions or requirements are necessary in order to prevent gang-related violence as per subsection (3) of the same clause.
New clause 12 gives examples of the effects that prohibitions or requirements could have, and that a court could consider, including effectively preventing gang-related violence. The Government have learnt from Birmingham city councils use of injunctions that exclusion zones and non-association prohibitions can be particularly effective in disrupting gang-related violence. Our intention is that courts should be confident in applying such restrictions, and they are therefore provided for in subsections (2)(a) and (2)(b). The clauses requirements include notifying the applicant of a change of address, a curfew, or the need to participate in particular activities. Requirements must have the effect of preventing gang-related violence.
The types of activities that we envisage respondents being required to participate in include community call-in or mentoring sessions. Such activities give authorities and community leaders the opportunity to engage with gang members, to explain the effects of gang-related violence in their area, and to offer them opportunities to learn, develop and exit the gang lifestyle. Committee members will also note that we have included a specific safeguardthat is really importantwithin the clause that prevents prohibitions or requirements from interfering with religious beliefs, or the respondents work or education.
New clause 13 guides how courts should manage the length of the injunction. It makes it clear that the injunction can be made for a fixed period, or until further order of the court. It also allows the court to set a review hearing, during the life of the injunction, to consider whether it needs to be varied or discharged.
Will my hon. Friend clarify two points? The first point regards sanctions, which I presume he will come on to. The second point is on the issue of what is accepted as a religion, because that can be very important with young people, for example, with Rastas. There are different religions that might not be recognised.
Unless I hear to the contrary, my understanding is that religion is a matter for the courts to determine, but it might be something that we need to include in the guidance. There is guidance, which has to be published, about how the new clauses are implemented by the courts. Maybe we should include something about religion in the guidance to address the concern put by my hon. Friend.
I am grateful to my hon. Friend for that clarification, but will there be any consultation about that? When Rastafarianism was popular among young people, the conflict over what people wore and what they carriedbadges and suchlikewas enormous, because the religion was not recognised.
There will be consultation about the code of practice, but I take the point made by my hon. Friend, which is a good one. I want the measure to be effective, so we need to reach a consensus and clarify what constitutes a religious item, or religious clothing, and we will do so within the code of practice.
My hon. Friend asked what sanctions are available. The initial order is made on the balance of probability. Prohibitions attached to the order can be subject to the power of arrest, although one can go to the court and ask for a warrant to arrest someone if there is a belief that a prohibition has been breached. Unlike an antisocial behaviour order, if there is a breach of a prohibition, there is a civil penalty of up to two years, which is available to the courts and, importantly, there is not a criminal record for any breach.
It is a shame that the hon. Member for Oxford, West and Abingdon is not here, because I am sure that that would be one of his questionsany breach has to be proved to a criminal standard, not to the civil standard. The civil standard is for the granting of the order and with any breachthe court process that takes place after thatbut any proof has to be to a criminal standard or beyond reasonable doubt. I hope that that is helpful to my hon. Friend the Member for Northampton, North.
If the order is breached, could someone get a custodial sentence? It is really important that we do not get gangs reforming in, for example, secure training centres and that arguments do not continue there. I would be very concerned about that.
Yesthere can be custodial sentences. The first one is for up to two years, so custodial sentences can be given. As I have said, proof has to be to a criminal standard. The person concerned does not get a criminal record, but my hon. Friend has made an important point about custody.
If injunctions are to be an effective tool for preventing gang violence, the police must be able to take swift action. New clause 13 enables the power of arrest to be attached to any of the prohibitions or to some of the requirements of an injunction. That will enable the police to arrest, without warrant, any individual suspected of breach. That is dealt with further in new clauses 20 and 21.
New clause 14 is a short clause, which simply sets out the fact that applications may be made to the court by the police, including the British Transport police, or a local authority. It is essential that local authorities are able to apply for those injunctions, as they have shared responsibility for managing crime and disorder, and have developed skills and expertise in obtaining civil injunctions. The police are often in a better position to obtain injunctions immediately, particularly following critical incidents when intelligence suggests that there might be an imminent reprisal. We know that gangs travel from city to city, so it is important that the British Transport police can obtain injunctions to protect users of the public transport network.
New clause 15 requires the applicant to consult other relevant authorities before applying for an injunction. The hon. Member for Hornchurch has tabled an amendment relating to the issue of who should be consulted, so it might be helpful to mention that now rather than later. I urge him to withdraw the amendment, but I will reflect on the issue it raises, because there is a need to consider whether the consultation should be broader than that set out in the new clause. His amendment proposes that the primary care trust and various health agencies be consulted, and I give him a commitment that we will reflect on that proposal.
The applicant must consult any other local authority and chief officer of police whom they consider it appropriate to consult. The purpose of that provision is to encourage the two key agencies involved in managing gangs to co-operate in formulating a co-ordinated approach to enforcement and exit strategies for gang members.
New clause 16 will make it possible for a court to grant an interim injunction in the first instance without the presence of the respondentthat is known as an application without notice. Police can receive intelligence that a retaliation attack might occur, sometimes within 24 hours, so by allowing the applicant local authority or police force to obtain an interim injunction without giving notice to the respondent, that attack can be prevented swiftly and effectively. I know that the hon. Member for Hornchurch has visited Manchester, where it has been said that it is essential that the police are able to act really quickly in some cases to prevent serous violence. The applicant would not have to consult relevant local authorities or police forces before making such an application, as that would not be practical. They would, however, be required to consult before the full hearing. As I have said, that provision is absolutely necessary to allow the use of injunctions as a preventive tool.
When a court cannot make full fines, or has to adjourn for further information and/or evidence to be heard, it may make an interim injunction. New clause 17 relates to an interim injunction made on notice to the respondent. The test for granting such an interim injunction is that it is just and convenient to do so. The court will not have the power to grant a prohibition or requirement until there is a further order of the court. The court would typically grant an interim injunction when it needs to adjourn the hearing to a later date.
New clause 18 is similar to new clause 17, but it relates to interim injunctions that have been granted without notice. All injunctions must meet the conditions set out in new clause 11. New clause 18 provides an additional safeguard for interim injunctions granted without notice and requires the court to consider it necessary, rather than just and convenient to do so. That makes it clear that if the application is not urgent it should be made on notice to the respondent.
The Government consider that it would be unfair for an interim injunction made under those circumstances either to include prohibitions or requirements to be in force until further order or to have the effect of requiring the respondent to participate in particular activities. Therefore, those have been specifically excluded. New clause 19 makes provision for an injunction to be varied or discharged. That is extremely important and makes the provision different from antisocial behaviour orders. Such action could be taken on review or if an application for variance or discharge is made either by the original injunction application or by the respondent. The purpose of the review set by the court is to examine whether the injunctions existing provisions are appropriate, whether the respondent is complying and whether it is necessary to add to, amend or discharge the injunction.
We have made provision for the respondent to apply to the court for variation or discharge, which allows them to put the case to a court that they have changed their behaviour, which is what we want, and should no longer be subject to such conditions. It also acts as a safeguard against unduly punitive prohibitions or requirements. Before an application for variance or discharge is made by the person who applied for the injunction, they must notify anyone they consulted under new clause 15.
Members of the Committee will recall that new clause 13(5) allows a court to attach the power of arrest to prohibitions or certain requirements, but that will not be available for a requirement that an individual participate in positive activities. New clause 20 relates to the making of such an arrest without warrant. It provides that a constable may arrest someone who is suspected of being in breach of an injunction. If an arrest is made, the constable must inform the person who applied for the injunction, and ensure that the respondent is brought before a court within 24 hours. That ensures that a suspected breach can be dealt with promptly and that an individual can be remanded in custody if necessarya point made by my hon. Friend the Member for Northampton, North. New schedule 2 deals further with the power to remand.
Although the power of arrest can be attached to most prohibitions or requirements, it is possible that the court will not do so. If it were suspected that a prohibition or requirement had been breached, and there was no power of arrest attached, the respondent can only be brought before the court on notice. This notice has to be 14 clear days. New clause 21 allows the person who applied for an injunction to apply to a relevant judge for a warrant of arrest if they consider that any prohibition or requirement has been breached. The judge must have reasonable grounds to believe that the respondent is in breach before issuing a warrant. The purpose is to allow the applicant to apply to the court for a warrant, which would enable them to deal with a breach rapidly, particularly where there is no existing provision to do so. If someone is brought before a court but the matter is not disposed of, the court may remand that person, as set out in new clause 20.
New clause 22 provides that the respondent may be remanded for a medical examination and report if the court has reason to consider that that is necessary. This applies only to a situation where a respondent has been brought before a relevant court for a suspected breach, having been arrested. It is irrelevant whether they have been arrested with or without a warrant. The relevant courts do not have the power to remand individuals for medical examination, unless specified. Therefore, this new clause is necessary to allow the courts to ensure the physical and mental well-being of the respondent.
New clause 23 inserts new schedule 2, which makes provisions for remand in relation to an arrest made under new clauses 20 and 21. New clause 24 provides that the Secretary of State must
issue guidance relating to injunctions under this Part.
The Secretary of State must also publish that guidance, which brings me to another point made by my hon. Friend the Member for Northampton, North made. I want to consider the measure a little further, to decide whether we should have to lay it before Parliament, and so on. I will look at new clause 24, with respect to how we issue and publish the guidance.
This guidance will provide detailed clarification on how various provisions of the injunction should be used. It will set out the appropriate situations in which an application to the courts could be made. It will also explain how police and local authorities should consult and work together to manage the injunction process. The Secretary of State will be able to revise any guidance issued, but those revisions must be published. Applicants must have regard to any guidance.
New clause 25 enables rules of court to provide that powers conferred on county courts are exercisable by judges of the county court and district judges. It also stipulates that rules of court may allow for appeals to be made
without giving notice that is, notice of the appeal
to the respondent.
New clause 26 clarifies the interpretation of particular terms used in the new provision. New schedule 2 applies when the court has the power of remand under new clauses 20 and 21. The court may remand the individual in custody or on bail; a remand on bail may be on conditional bail. The maximum period for which an individual may be remanded in custody is eight clear days, unless both the individual and the applicant agree otherwise. A court may further remand the individual. A court may order the further remand in custody of an individual in their absence if the individual is unable to attend court for their further remand hearing. The court may order the taking of a recognisance before the individual is released on bail.
I have mentioned the second amendment tabled by the hon. Member for Hornchurch, and I will look at the issue of who should be consulted. There is a real debate to be had about amendment (a) to new clause 11, which deals with the issue of how a gang is defined. We have put a definition in new clause 11, and we have said that it is for the courts to decide whether violence is gang-related violence. In his amendment, the hon. Gentleman is tries to define a gang. He talks about a discernible group, which must be engaged in organised criminal activity, and various other features. I do not disagree with any of the points that he makes, nor do I think that there is any point of difference between us on this issue.
It is possible, however, that something else may crop up in a year or two and the court will not have the flexibility because we have defined it in that way. In all honesty, I have tried to think of something that would not come under one of those four headings, and it was difficult, but I am reluctant to constrain the courts, then find in a year that something has occurred that is beyond the definition. However, I do not think that that is point of difference. I will slightly tease the hon. Gentleman. I am the one who is often criticised by Liberty, but I could not help noticing that it said:
We do not, however, believe that additional amendments proposed, introducing a definition of gang are satisfactory. Those amendments would still mean that any group of people that have an identifying organisation feature would be captured by this provision, which could include the local boxing group.
I do not think that that is true, because the court would not do such a thing.
It is interesting that in his report, the right hon. Member for Chingford and Woodford Green said that all the conditions should be met. I note that the amendment tabled by the hon. Member for Hornchurch says that just one of the conditions should be met. The debate on how to define a gang, even for people who agree, is fraught with difficulty.
I welcome the Ministers approach in explaining and setting out his case. I understand the intention and the focus of the new clause on the violent side of gang activity. The point that I come back to, which I will develop further in my own comments, is that we need to ensure that the powers that are being created are structured and focused, such that, over time, they do not become applicable to people whom he and I would not define as gangs in this debate. That is a cause for concern, and that is why I tabled the probing amendments and advocated the suggested changes.
I do not disagree with that, and I will reflect on it. We are all trying to get at the serious individuals who are part of an organised group, who wear colours, have territory, live according to their own rules, do not care about societys rules and so on. My initial thinking is that if we define it as gang-related violence, the court, in its wisdom and sense, would do what is implicit, but the hon. Gentleman is trying to make it explicit. I will reflect on the matter and see whether we need to do more to ensure that the issues that the hon. Gentleman is worried about do not arise.
I shall finish where I started. I think that this is, if not the most important discussion that we have had, certainly on a par with anything else. Birminghams experience of using the injunction shows that it reduces violence. The mothers of gang members were asking for injunctions to be placed on young people, because they saw their effect in reducing violence and serious violence. I know that the courts took the attitude that they did, which is why the clauses were late, and we are taking the first opportunity to clarify the law, so that the injunctions are available across the country to help to prevent the most serious violence. The effect of the injunctions will be that people who would have been killed or badly attacked, will not be and that people who would have ended up in prison and had their lives ruined, will not. I apologise to the Committee for taking so long, but it is an important debate. I wanted to introduce it in that manner and put in conclusions, as well as putting what the new clauses are about on the record.
May I say from the outset that the Ministers analysis of the problems experienced in some communities in this country should give huge cause for concern? He spoke of the violence and of the fact that many people living in certain areas are terrorised by small but hardened and pernicious groups of individuals. We must explore all avenues to protect those communities and to prevent such individuals from conducting their appalling acts.
There has been a growth in gang violence in recent years. It is linked to gun crime and violent crime in certain areas of the country. I agree with the Minister that it does not happen everywhere. However, I understand from talking to the police in certain areas that it is clear that there is a problem with organised gang activity. We must be careful in framing and defining the measures that are thought appropriate or necessary to address such unacceptable behaviour, with its links to violence, murders, shootings and other horrendous activities. That is the context in which we are having the debate. We must ensure that the proposals address the concerns that are rightly held and that they are not subsequently used in more general and inappropriate ways that are not intended by the Committee.
We should be under no illusions; too many young lives are lost because of absurd disputes over postcode territories or minor disagreements in which a perverse notion of respect is seen to be challenged. The Minister was right to identify the issue of structure and organisation, such as the wearing of colours. Inadvertently wearing the wrong colour clothing in a particular area can put one at risk of being attacked. It is ridiculous and absurd when thought of in those simple terms, but that is the reality in certain areas of our country. Simply by wearing a particular colour in a particular area, a person can put themselves at risk of being shot or attacked. Sadly, some recent cases have brought that into stark focus.
Equally, simply living in a particular area can mean that one is deemed to be a member of, or associated with, a particular gang. A person who is in no way part of a gang can be at risk of being attacked or drawn into gang violence simply because of the location of their home or family. What angers me the most is that many innocent people are drawn into these violent situations by the quirk of fate of where they live.
There is often very clear identification. People know the names of the gangs and who the gang members are. However, they are terrified and intimidated and so will not come forward. We see the perverse situation that some people who get drawn into the criminal justice system feel that they need to affiliate with a gang for their own protection because of the area they come from. This sense of organisation or structure is perhaps not fully or properly appreciated in the context of the debates we have about gang activity.
I recognise a huge amount of what the Minister has said in setting out the background and laying the framework for the measures in these new clauses. We are all sadly aware of the tragic number of teenagers who have lost their lives in various parts of the country. The focus has obviously been on London and the record number of people killed last year by a knife or sharp instrument. Other acts of violence are equally applicable. I hear clearly what the Minister has said about the use of dangerous dogs and other actions taken by these criminal gangs.
The shocking thing is that a lot of children are being denied their childhoods by the activities of these appalling gangs. A recent report by childrens charity NCH Action for Children highlighted the situation of young people growing up with the real fear of becoming a victim of crime, particularly violent crime. That is something that we cannot accept in a decent society.
The Minister and Iand, I am sure, other hon. Membershave been to events where a lot of these issues have been brought into stark focus. The Minister will remember the peoples march against knife crime which we both attended on 20 September 2008, marching from Kennington park to Hyde park for a rally. That was very powerful. It always is when one meets families and friends who have lost loved ones as a consequence of these appalling actions. It is difficult not to be moved by their testimony. Listening to family, loved ones and close friends as they speak about the situations they have been through, I am always struck by their passion, humility and determination that others should not suffer as they have done. That has left a strong impression on me, as I am sure it has on the Minister and many other hon. Members who have been touched or contacted by, or who have spoken to, those affected by this sort of crime. It was important that there were a lot of young people at that rallyyoung people taking a stand and saying that they were not all like that, that they were the ones affected, and that they were as angry as the rest of the community and were prepared to take a stand. That sends a positive statement about the role of young people in our communities.
It is a great credit to a large number of young people that they are not prepared just to sit by and let this happen, and to see the things that they have. They are prepared to take a stand and actively ensure that change takes place. That is why I am pleased to support organisations such as Kids Count, which I know that the Minister also supports. There are other similar organisations seeking to give a voice to young people and advocating change to prevent these appalling acts. I pay tribute to the many organisations that seek to address and confront these issues in their communities.
It is the direct links to gang culture, activity and membership that make the situation so serious. One of the most insidious aspects of the organised criminal gang structure is that gangs often consciously focus recruitment on some of the more vulnerable members of our communities, such as those with poor educational attainment, weak family support structures, addictions or mental illness and those who are unemployed. Those people are often targeted for gang membership to deal drugs, to get involved in criminal activity and to support the gang structure. As I said to the Minister, the appalling fact recently reported by Trident to the Home Affairs Committee is that those involved are getting younger and younger. Sadly, in recent years, we have seen 13-year-olds being involved in gun crime and linked to gang activity, which is why I understand the Ministers desire for additional mechanisms to address young people in particular. However, as I think he accepts, there are complications and problems that I will come on to regarding the Government new clauses.
Gangs often deliberately seek to undermine family and social structures, drawing the individual away from traditional ideas of family relationships with acts of sickening violence that are part of a perverse rite of passage; people are encouraged to demonstrate their affiliation to the gang in that way. It is horrendous that gangs seek to undermine the family, which can be so important in preventing someone from getting drawn down those paths. Gangs play on peoples fears and seek to get in the way of family structures. Criminal gangs are so pernicious and their actions so appalling not only because of what they do to communities and families but because of how they draw individuals away from otherwise fulfilling lives. There is also fear; intimidation prevents people from coming forward to the police, and prevents law enforcement agencies from bringing prosecutions. I agree with the Minister that the first port of call should be to bring people to justice. That must be our focus and objective, even though the fear and intimidation sometimes make it difficult to achieve.
Various approaches have been taken to combat gang crime and pernicious gang activity around the country, which reflects the fact that gangs in different areas are different in structure and nature. It would be wholly mistaken to think that the nature and structure of a gang in London was the same as that of a gang in Manchester or Birmingham, or on Merseyside. Some gangs are simply about territory, while others are motivated by broader criminal intent and funding a criminal lifestyle, but they all tend to have a sense of identity in common. They often use colours to distinguish the gang, and ape some of the activities of gangs in the United States. In the west midlands, injunctions were used to disrupt gang activity, basing a claim on the nuisance caused by gangs and seeking to bring that within the remit of section 222 of the Local Government Act 1972. In many ways, that model is based on tools developed in Boston and other parts of the US, where the injunction is seen as an important mechanism available to law enforcement officers in preventing gang activity and ensuring that communities are protected.
West Midlands police were able to use Section 222 to exclude dangerous individuals from certain areas so that they could no longer exert influence, trade drugs or intimidate residents there. It allowed them to control dangerous gang members by enforcing non-association or restraining orders, exclusion zones around certain areas (barring known gang members from the area in which their gang operates) and specific exclusions (buses or parks).
This is why I understand the Ministers focus. He seeks to tackle the issues at that very serious end, based on that model. However, as the Minister has said, in the case of Birmingham city council v. Marnie Shafi and Tyrone Ellis, such use of section 222 of the 1972 Act was ruled inappropriate by Nottingham county court, and that decision was upheld by the Court of Appeal last October. In essence, the court said that except in exceptional circumstances, an injunction should not be granted when an application for an antisocial behaviour order could have been made. If it was granted, the evidence provided would have to be proved to the criminal standard.
Since the decision, it has been suggested that because the section 222 injunction is no longer available as a tool, gang violence in Birmingham has increased. In that context, I understand why the Government have thought it appropriate to introduce the proposals. I recognise and endorse the Ministers point that prosecutions are the preferred option but that they might not be appropriate in all circumstances. A balance of proportionality and reasonableness must be struck in the potential use of civil orders that might otherwise protect communities from such criminal activities.
As the Minister has accepted, the proposals differ from the quasi-injunction provisions in ASBOs and serious crime prevention orders and go much further than section 222 injunctions, which are largely modelled on case law and the law of nuisance, although Birmingham city council used them as it did until the court judgment. Before a gang injunction can be made, the court must be satisfied that the respondent has engaged in, encouraged or assisted gang-related violence and that the order is necessary to prevent them from engaging in further gang-related violence or to protect them from such violence.
The first test involves being satisfied on the balance of probabilities: the civil test, as the Minister said. From our previous debates on serious crime prevention orders and other matters, he will be aware of the case of R v. Manchester Crown court ex parte McCann. The application of the sliding scale of the civil test may equate at times to something virtually indistinguishable from the criminal standard. The use of the term balance of probabilities in the clause appears to seek to deviate from that general case law in the application of civil orders in what might be considered quasi-criminal issues. He will also be aware of the fine distinction between a preventive order and a punitive one, with all the issues that that may connote.
Is the Minister satisfied that the use of the balance of probabilities test for satisfying the court about what amounts to criminal conduct will withstand challenge on the basis of existing relevant case law, which might otherwise suggest a higher hurdle for the burden of proof? In particular, is it intended that the order should deviate from the McCann judgment? In the use of the balance of probabilities rather than the civil standard of proof, is there a focused and deliberate intention to say, Actually, for this sort of case, we dont believe that McCann should apply, and that a lower hurdle should be applicable in such situations?
Also, some human rights issues might apply if the order is seen as punitive rather than preventive. Again, will the Minister comment on what advice and consideration he was given in framing the new clauses to ensure that the orders are seen as preventive, not punitive? Otherwise, there will be human rights issues. Does the Minister envisage that the order will be used on a stand-alone basis, or is it intended to operate alongside criminal conviction, for example? If so, what does the order add to a serious crime prevention order or even an ASBO?
For an application for an injunction to be successful, there must have been violence in the course of the gangs activities, yet no definition of a gang is provided. From everything that has been said, I understand the Minister to mean one of the identifiable organised gangs that officers from Excalibur, Trident or any of the specialised forces dealing with gang activity can explain in disturbing detail. However, given the context, all that we are left with is the requirement that there should be gang-related violence. A group of young people who simply hang out together might be considered by some to be a gang. But as the Minister has said, and I agree with him, that is not what we should be trying to get at. The focus should be on those identifiable gangs engaged in gun, knife and other violent crime, rather than on groups that some have referred to as loose affiliations of young people. As Liberty has asked:
Is it simply a group of young people wearing hoodies?
I do not think that that is the case, but one might get that impression from reading the Bill. It might be useful to have some context to assist the courts and those who might wish to use the power for the protection of their own communities, especially given that it will not be the court that immediately has to consider using the injunction.
The Minister said that he did not want to include lists, and in matters of drafting I generally agree with him, but I am aware of no existing case law that the courts, police forces or local authorities could look to for defining a gang, which is the basis on which the provision is framed. He has said that he will reflect on what guidance or assistance might be offered, but clearly that would be non-statutory, so a court interpreting what is meant by the provision would have to take the actual words as the starting point. If it felt that the words were clear, it could apply them accordingly, so it would be helpful to have a road map or some further definition to ensure that the new clauses are applied in the way in which I believe they are intended, focusing on the most serious crimes of violence. That is why we have tabled the amendment suggesting that a definition of a gang should be included.
That suggestion is modelled on the definition set out by the Centre for Social Justice in its excellent report on gang activity, but as the Minister has rightly said, it is not the same. I welcome his comments accepting what is an important and ground-breaking report that puts in context the reality of gang activity in this country. The CSJ rightly makes the point that there are clearly identifiable factors for the sorts of structured gang activity that are at the heart of the problem, and I believe that that should be reflected in the drafting of the clause.
I have heard what Liberty has said about the drafting of the amendment. The Minister made a teasing comment about that, and I take it in the spirit in which it was made. I take no pride in ownership of drafting; I am simply seeking to address that important point. If there needs to be refinement of the issues I have identified, I am prepared to work on that and reflect on the comments that have been made.
The point about boxing is that it relates back to the question of what will be considered gang-related violence, and I do not think that that would fall within that definition. I respect what Liberty has said about trying to get that right and I think that we should all reflect on that in ensuring that the focus and structure of the clause is appropriate.
The hon. Gentleman makes an interesting point about ensuring that the powers will be used properly. Does he agree that it might be appropriate for the report to which the Minister referred to be presented to Parliament so that MPs can see how the measures work in practice? That might overcome his concerns about those issues, which, to an extent, I share.
The hon. Lady has made a valid point for the Committee to consider, and I am sure that the Minister will reflect on it. Certainly, with regard to what might be considered as other injunction-type orders, such as serious crime prevention orders, there are mechanisms for formally reporting to Parliament how many are used and the nature of their use. Given that those powers are wide ranging and should not be used lightly, there might be some merit in such a proposal. I am sure that the Minister will reflect on that, given that new clauses have only recently been added to the Bill and that there has been only a limited amount of time to consider all the relevant aspects, their potential impact and what they actually mean. I hope that suggestions such as the hon. Ladys and those from other groups on where the focus should be and on what protections might usefully be added will inform the debate as the provision is considered in this and the other place.
Given the child protection issues that are potentially at stakethe Minister spoke of his desire for such injunctions to be applicable to under-18s as welland the Governments envisaged approach of requiring compliance with certain conditions to address behavioural or other issues, it is essential that those agencies with responsibilities for providing such services are consulted at an early stage. We believe that it is appropriate for relevant NHS bodies and probation youth offending teams to be engaged as early as possible on the support services that might be available. That should be reflected in the consultation provisions of the new clauses. I welcome the Ministers comments that he will consider and reflect on thatit is important. If we seek to prevent and change behaviour, other agencies must be engaged in that process. If we are looking at issues of addiction, mental health and other associated factors, the limited consultation requirements that we have at the moment do not go far enough.
I have some more general points that the Committee might find helpful, and I hope that the Minister will respond to them. In respect of the duration of an injunction, is it envisaged that the requirements of an order could remain in force in perpetuity? That is how the measure is framed, although the Ministers comment about the review mechanism, and that an application could be made by the applicant or the respondent requesting consideration of whether an order remains appropriate, is important.
Given the significant restrictions that could be placed on an individualsuch as where they are at particular times of the day and what activities they are required to participate inis the Minister satisfied that the provisions will withstand challenge under the relevant human rights provisions? Will he also confirm how many injunctions he expects to be granted each year? From what he has said, I imagine that the intention is for there to be a very limited number. We do not have the benefit of a regulatory impact assessment on these provisions because of the late stage at which they have been brought up, but it would be helpful to get some sort of feel for this.
The Ministers clarification is helpful, although I note that that is a higher number than the number given for serious crime prevention orders, for example, which I recall from our debates on that matter. Perhaps this power is even more wide ranging that I had anticipated in terms of its application. I thank the Minister for that clarification; the Committee will find it helpful and it will assist in the further consideration of the scope and extent of the powers.
No provision has been introduced to make it an offence to breach an injunction as stated in the Bill. The Minister has explained that that is because a breach of an injunction would be dealt with in the same way as a civil contempt of court. It would be the same as a breach of any other injunction, with sanctions available to the court that could include imprisonment.
We have touched on the issue of children in this context. Under the current drafting of the Billthe Minister accepts this pointsuch cases would currently be dealt with in the High Court or the county court, and not in a youth court, as would apply in situations where a young person was subject to some form of criminal sanction.
Let us look at the ASBO regime. A child will have an ASBO imposed by a magistrates court, but if the order has been breached it becomes a criminal offence and is dealt with by the youth courts using the range of sanctions available in those circumstances. Those do not currently seem to be available on the basis of the structure that has been envisaged by the new clauses. The Minister specifically made reference to that, and I therefore note that the way in which this could be worked through is very much on his agenda. There are serious issues that need to be considered carefully to ensure that, for young people in particular, the use of those orders is conducted in an appropriate and effective way.
That is helpful. I think it is clear, in how the new clauses are currently drafted, that they will not be used for under-18s, for some of the reasons stated by the hon. Gentleman. I was trying to say that there needs to be a debate about whether there should be a measure for under-18s and the answer to that, I think, is yes. We then need to have a big debate about what that measure should be, because as the provision is drafted here, we could not, for some of the reasons the hon. Gentleman has given, expect them to be used for under-18s. In fact, I would not expect it to be used for under-18s as it is drafted, but that leaves us with a public policy gap, and we need to look at how we can fill it.
The Ministers comments about under-18s were helpful. It was important that he said that he did not expect the orders to be used for under-18s. It might well be that that needs to be made more explicit in the Bill, if the new clauses are accepted. A different regime might need to be thought through and applied to under-18s, because I recognise that there is a public policy issue for the reasons that I have identified. There is the question of continuancethe fact that one of the orders could potentially remain in perpetuity. Let us apply that to the ASBO situation, for example, because, even on that, the Government have rowed back from the civil orders applying to a child automatically for two years, because yearly reviews for children on ASBOs were introduced under section 123 of the Criminal Justice and Immigration Act 2008. I think that the Minister is saying that the envisaged structure is not fit for purpose for under-18s. It is important to put that on record because it will help to inform subsequent debates on these particular provisions.
Will the Minister explain why the order could impose conditions on the person, subject to the injunction, for their own protection? If that were to apply to under-18s, there would be existing child protection legislation in place. I was struck by one case that highlighted the need to act swiftly to protect the sibling of a gang member who was at risk of becoming a victim of a tit-for-tat gang dispute. The local authority and social services needed to act quickly to get a child out of a particular address to ensure that their life was not put at risk. I understand the real-time needand the Minister made reference to thisto act quickly in certain circumstances to protect children. However, the new clauses would not have added anything to existing child protection legislation, which give rise to a question of why they would not necessarily apply to that.
Why does the Minister consider that those protective provisions are appropriate for people over the age of 18? Libertys briefing note, which he will have read, describes that as an extremely paternalistic approach, and Justice has noted that it does
not believe that adults outside the mental health or mental incapacity context, should be the subject of compulsory protective interventions of this nature.
There is a fairly wide public policy issue that needs to be thought through. When the Minister responds to the debate, I will be interested to hear whether he can explain further why he thinks that such provisions are appropriate and necessary.
I understand and respect the Ministers desire to address the issues highlighted in the case of Shafi and Ellis, but the provisions are wide-rangingas he would acceptand will require further detailed scrutiny. Todays consideration in Committee is simply the start of the process. Further detailed review is needed to ensure that the provisions are appropriate and that they address the understandable need to provide support to communities suffering unacceptable gang-related violence.
The Minister rightly said that this is one of the most important aspects of the Bill, so it is regrettable that it was not in it initially. We could not discuss it on Second Reading and the provisions were not available at the start of the Committees proceedingsin fact, they were tabled only at the start of recess week. That is regrettable given that, in the Ministers words, this is such a major feature of the Bill. Over the past month in Committee, it has been said several times that one purpose of our proceedings is to put clarifications on record that arise from questions asked of the Minister, probing amendments and statements, so that when the police, lawyers and courts come to implement the legislation, they will not be simply going on its bare legalistic bones, but will have a clear statement from the Minister about the intention of how certain measures will be implemented.
Earlier, the Minister said that a breach of an injunction involving somebody under 18 would be taken to a youth court rather than a criminal court. I thought that that was reassuring, but he went on to say that he did not see that the injunctions would apply to under-18s at all, which I found confusing in the light of his opening comments. He talked very eloquently about the massive problem of gangs and pointed out, as if to justify the measures, that a lot of the knife murders that have been so much in the news over the past year or two were carried out by 14, 15 and 16-year-olds. Rather than providing clarification, the Ministers comments confused me.
I apologise if I have confused the hon. Gentleman. I will read the relevant paragraph again. There is a public policy gap. Under-18s and gang-related violence cannot be dealt with in the way that the injunctions will deal with over-18s. I am sorry if this intervention becomes a little long, Sir Nicholas, but please bear with me. I was trying to tell the Committee that because the measure is contentiousto say the leastI will seek, with officials in my Department and across Government, to liaise with hon. Members to see whether there is a way through this legal minefield that will not criminalise children and that will consider their human rights and other things. Although, in theory, someone could try to get an injunction, they are not applicable to under-18s. I will read the legal opinion on why:
this injunction can apply to under 18s. However, injunctions must be enforceable and it is unlikely in practice that this would be enforceable for under 18s because the court cannot fine someone without a source of income (and most gang members will not have a legitimate source of income). Nor can it sentence an under 18 to detention in a YOI for a civil contempt of court.
That civil contempt of court is the sanction for breaching the injunction. Effectively, we will not be able to use it because there is no sanction. Which court it goes to is almost irrelevant because there is no sanction and it will not go to court, so there is a gap. I was saying that we need to look at that gap to come up with a solution that meets our public policy objectives without undermining other principles.
Thank you, Sir Nicholas. The Ministers welcome intervention provided further clarification. However, I am still a little confused by his opening comments and the huge emphasis that he rightly placed on the tremendous problems of gangs and the number of young people involved in murder, with 13, 14, 15 and 16-year-olds involved in stabbings. It seemed that that was being laid out as the justification for the measures, but we were then told that they were not meant to apply to that age group at all. In view of that confusionwhat Justice and Liberty have read has certainly confused themit seems that some tidying up is needed.
Order. In a moment I shall adjourn the Committee. However, as this is the last sitting in which I shall chair the Committee, may I congratulate hon. Members on both sides of the room on the constructive way in which they have dealt with a very important Bill? I particularly congratulate the Front Benchers on the mammoth task that they have undertaken. It has been a great pleasure to be in the Chair and to see Parliament working at its best.