Clause 89

– in a Public Bill Committee on 26th February 2009.

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Amendment proposed (this day): 290, in clause 89, page 103, line 2, at end insert—

‘(ba) sections [Injunctions to prevent gang-related violence] to [Interpretation] and Schedule [Injunctions: powers to remand],’.—(Mr. Coaker.)

Question again proposed, That the amendment be made.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

I remind the Committee that with this we are discussing 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 12—Contents of injunctions.

Government new clause 13—Contents of injunctions: supplemental.

Government new clause 14—Applications for injunctions under section [Injunctions to prevent gang-related violence].

Government new clause 15—Consultation 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 16—Applications without notice.

Government new clause 17—Interim injunctions: adjournment of on notice hearing.

Government new clause 18—Interim injunctions: adjournment of without notice hearing.

Government new clause 19—Variation or discharge of injunctions.

Government new clause 20—Arrest without warrant.

Government new clause 21—Issue of warrant of arrest.

Government new clause 22—Remand for medical examination and report.

Government new clause 23—Further provision about remands.

Government new clause 24—Guidance.

Government new clause 25—Supplemental.

Government new clause 26—Interpretation.

New schedule 2—Injunctions: Powers to Remand.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

To recap, the Minister had clarified the intention of the new clauses. One clarification, which dealt with a number of the issues that organisations such as Justice and Liberty have raised about youth courts and so on, was that the new clauses will not, by and large, or at all, apply to under-18s. However, the Minister also put great emphasis on the fact that one of the reasons for introducing the new clauses on gangs was the involvement of 14, 15 and 16-year-olds in stabbings. That is a dichotomy that will require further exploration when he sums up.

It is also an issue that, if the new clauses do not apply, by and large, to under-18s because they would not be able to afford the fine imposed for a breach of the injunction, some 16 to 18-year-olds do of course work and earn money, and so could pay the fine. Will the clauses therefore apply to a few under-18s who do work and are able to afford the fine, or will they not apply to any under-18s? Either way, there is much confusion, so surely the Bill should address an age limit, if there is to be one. I hope that the Minister will discuss that in his closing comments.

We also discussed the fact that the new clauses do not offer a definition of a gang. In his opening comments, the Minister went to great lengths to say that the provisions will not apply to a group of hoodies on a street corner or to football fans wearing scarves. Can we be content with such a simple explanation? We all know of examples of legislation being passed for one purpose, but allowing mission creep to take place, because the police will use whatever powers they have in certain situations. Terrorism legislation was used to arrest a heckler at a Labour party conference, for example, as well as to stop legitimate peaceful protesters at arms fairs in London.

Furthermore, on 15 November 2008, section 27 of the Violent Crime Reduction Act 2006 was used against 80 Stoke City fans, so the Minister’s claim that the new clauses do not apply to football supporters is relevant here. The fans stopped at a pub on their way to a match. They were being perfectly peaceful and the publican made no complaint about their behaviour. The police, however, used the 2006 Act to round them up and detain them for a while, before sending them 40 miles back to Stoke on a coach. They missed the match, had no toilet facilities and were told to pee into cups, which spilled all over the floor of the coach. The treatment of those fans was unacceptable; they had not committed a violent offence and the publican had not complained about them, and it would appear that the legislation was grossly misused.

There are other examples that could be highlighted illustrating the same point regarding legislation being misused for one purpose when it was clearly intended for another. As there is no definition of a gang in the new clauses, does that not leave open the possibility that the legislation might be misused for purposes for which the Minister says that it is not intended? It could be used against football fans, for example, or gangs of hoodies on street corners and so on, even though I accept the Minister’s explanation that the intent of the new clauses is, essentially, to target hard-core gangs involved in major violence and serious organised activity. There has been much reference to the dangers of such gangs, but it should be put on record—as it has been  already—that the issue does not apply to most of the country. However, it is a major problem in the areas to which it does apply.

In my 22 years of teaching, I never came across a gang culture impinging on school life. I have some experience of schools in Sheffield—not much, even though I went to school there—and did some teaching practice near Barnsley, but most of my teaching was in Derbyshire. Yet I recently visited a school in an area of London with a strong gang culture. That culture sometimes impinges on school life there, although by and large the school is a haven of safety within the community. There was just one incident there recently. Last summer, a gang member inflicted serious harm on another pupil who was a member of a rival gang with a metal bar—the kind that has dumb-bell weights at the ends—and was jailed. Nobody disputes that in some of our inner cities there are serious gang issues such as those that the Minister has described, but that is not the experience of the vast majority of the population in the UK.

The Minster has not explained clearly enough why the Government feel that the existing laws are inadequate, but I hope that he will. Those were precisely the grounds on which the Court of Appeal rejected the Birmingham case. It said that the available evidence was too flimsy to lead to the injunction that had been issued. The ruling stated that the legislation on antisocial behaviour orders was perfectly adequate to deal with the matter. Clearly, the Government do not agree with that, because they are introducing these strong clauses on a new offence that could be used in such situations. However, the Court of Appeal said that there was plenty of legislation that could have been used and that the evidence was too flimsy. Are the Government introducing the new clauses because they want a lower burden of proof? For an ASBO, the criminal burden of proof—that it is beyond reasonable doubt that a person has acted antisocially—is needed. In the Shafi and Ellis case, the Court of Appeal made it clear that, given the seriousness of the matter, the same standard of evidence—the criminal burden of proof involving the matter being beyond reasonable doubt—should be applied. The new clauses would create a new civil order with a lower applicable standard of proof: proof on the balance of probabilities. Is the real reason behind the clauses to allow a lower burden of proof and make it easier to get an injunction, or, under existing law, an ASBO? The Court of Appeal thought that the ASBO was perfectly adequate in that situation.

The proposals affect the liberty of the person. They affect the right of association and expression and freedom of movement, and they introduce a concept of criminality without trial and with a lower burden of proof. That is contrary to the tenor of English law over the eight centuries since Magna Carta. If the Government take that serious step they will have a lot more explaining to do to convince both the House and the other place.

As well as introducing a lower standard of proof for the new offence, the proposals also move what is basically an ASBO principle on from prohibiting someone from doing something to requiring that they do things as well. In that sense it is almost a control order, and we all know the controversy that surrounds those. The Government have said repeatedly that control orders were temporary measures, but they have renewed them two or three times. Those measures are very controversial and we will look at them again soon in the main  Chamber. It seems as though we are almost turning an ASBO into a control order with the new clauses, and that raises serious concerns that we will need to discuss at much greater length in both Chambers.

I would like the Minister, in summing up, to answer three questions. Why are the current measures not adequate, even though the Court of Appeal specifically stated that they were, which is why it rejected the situation in Birmingham? The Minister discussed the problems with having a definition of a gang and said that he would look again at the proposals for one, but without a definition how do we stop major mission creep or the abuse of powers that we see with other legislation relating to violent disorder and the prevention of terrorism? Why should we introduce a low burden of proof when an injunction would have such a major impact on a person’s basic civil liberties?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Welcome, Mr. Bayley, to the Committee’s final sitting, and the conclusion of our deliberations on the Bill. The debate on gangs has been interesting and good, and I make no apology for repeating a couple of points before turning to the specific issues that have been raised. In these provisions, we are wrestling with what to do about a small number of individuals who are extremely violent and dangerous, and I know that every member of the Committee accepts that that is the case. Not only are those individuals violent and dangerous, but they terrorise communities. As I have said on numerous occasions, the criminal route, where possible, is the preferred option. Leaving aside the age issue, we would of course prefer it if criminal evidence was gathered so that those people could be brought before the criminal courts and prosecuted.

However, the hon. Members for Chesterfield and for Hornchurch know as well as I do that gathering that evidence in some parts of some communities is virtually impossible. What should we do about that? Should we shrug our shoulders and say, “There is nothing that we can do about that, so we will just let those people act with impunity.”? I know that that is not what the hon. Member for Chesterfield is suggesting we do, but we cannot even prove that they threaten and terrorise people, because they intimidate the witnesses, who are so frightened that they will not come forward. That is why we have seen changes in the criminal justice system to take witness protection measures and use video links or screens around a witness box, which are also serious matters.

The alternative to taking such measures is that we would just let people get away with it, which is not acceptable, so the criminal justice system has adapted witness protection measures and various other measures. We are trying to deal with all the things that the hon. Members for Chesterfield and for Hornchurch have raised. Established organised gangs operate on territory with the use of colours to terrorise and threaten people, and they operate in a way that makes it impossible to gather evidence to do anything about it.

Birmingham used those injunctions to try to tackle the problem and the figures showed a drop—incidentally, the hon. Member for Chesterfield will know that the relevant cabinet member in Birmingham is a Liberal Democrat. I know that there are issues relating to  human rights and the proper use of powers, but I would have thought that residents in Birmingham and across the country would look at that and say, “That is fantastic.” It may have infringed the privacy and human rights of the individual subject to the injunction, but the human rights of countless numbers of individuals are enhanced by the fact that someone who had terrorised the community was no longer able to do so.

The hon. Member for Chesterfield asked why the existing powers were not adequate, which I will come to in a moment, but all those powers existed in Birmingham and across the country, and it was still not possible to tackle effectively some of the most violent individuals. We looked at what happened in Birmingham, we saw that there was a public policy response which made a difference, and we thought we should adapt it, particularly following the court judgment.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield 1:15 pm, 26th February 2009

The Court of Appeal said:

“In reaching these conclusions we do not wish to minimise in any way the problems identified by the council. However, we are confident that the courts have ample powers to deal with them.”

The Minister says he will return to that. If the Minister convinces us that the current powers are not satisfactory—which is why this is needed—is he saying that on the basis of council and police supposition or belief, and without the evidence to prove it, there should be the ultimate power under these injunctions to put three requirements on an individual? The individual would spend eight hours at a place of work or education; eight hours of leisure at a particular place and eight hours of sleep at a particular place. The whole 24 hours and seven days a week of someone’s existence would be controlled without evidence presented to justify it. Is that what the Minister is saying?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

No, I am not saying that. Let me give some evidence of what Birmingham was able to do with the use of injunctions that it was not able to do with its existing powers. Birmingham obtained about 30 injunctions between August and the end of December 2007, with a co-ordinated approach, intensive policing, deployment of a mediation service and so on. I accept that cause and effect may not have been the sole reason—it may not have been just the use of injunctions that brought these changes about. There may have been other factors but it is still pretty stark. In the Handsworth, Lozells, and Newtown area of the city, the number of robberies in the four months prior to the injunctions averaged 55 per month, compared with 33 per month while injunctions were in place. After injunctions were removed, the figure rose again to 48. In the Aston and Nechells area, there was an average of 11 firearms incidents in the four months preceding the orders, compared with four for the period in which the orders were in place. After the court judgment, the figure rose to nine in March. In the city centre, firearms usage dropped from eight incidents in July 2007 to one in September 2007. After injunctions were removed, there was a rise to a peak of nine incidents in May 2008.

Chief Superintendent Paul Scarrott, who is in charge of the basic command unit where most of the gang-related activity is focused, went on record to attest to the value of injunctions:

The influence injunctions have on an individual gang member’s behaviour and the gang as a whole is substantial. Many have expressed their fear of having prohibitions placed on their activities  and the degree of disruption to their established methods of operation. Both the exclusion and non-association clauses of the injunctions were instrumental in limiting and controlling their criminal activity.”

Those figures are astonishing. If they could be replicated through the use of injunctions across the rest of the country, I do not think there would be a community that would object, saying the injunctions are an infringement of civil liberties and the judicial practice of this country. People would see reductions in harm, firearms, threats and intimidation while their human rights would be enhanced, such as their ability to go out at night and wander about their community without being threatened or terrorised. They would not be saying this is a difficult debate about injunctions; they would be saying to Parliament, “Get on with it!”

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I see the point the Minister is making. I could give an example from about 10 years ago, before I was an MP, when there was a series of car break-ins on the street where I live in Chesterfield. In the course of a week, there were about seven, and my car was broken into on Monday and on Friday. The police knew who was doing it—he had just come out of prison and was living in a hostel about two streets away. They could, in theory, have locked him up and thrown away the key, but they have to have evidence before they take action. In many cases, the police could intern the usual suspects—we would get some innocent ones, but we would also get some guilty ones and depress the criminal figures. Surely, though, the police have to have some evidence.

Internment in Northern Ireland was a disaster, because many extraneous and innocent people were interned. The logic of the Minister’s argument is that if the police suspect that 20, 30 or 40 people are at the core of it, they will slap injunctions on them. If the police are saying, “24 hours later this is where you must be”, that is almost a form of internment. Surely, there has to be some level of acceptable evidence before they can do that. What is that level?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I am sorry that the hon. Gentleman has made a comparison with internment. I am sure that, on reflection, he will think that that is not quite the case. I understand the point he is making—and I will answer the point about evidence in a moment—but with internment, people were rounded up and put in places such as Long Kesh just on the basis of intelligence with no judicial oversight. With respect to the hon. Gentleman, he might, on reflection, think that that is not the best analogy.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I gave two examples. Internment was one example where, on no evidence other than police suspicion or very flimsy evidence—sometimes 30 years out of date—they rounded up the usual suspects. I gave the example of the police in Chesterfield and a spate of car thefts 10 years ago in my street. The police said that they knew who was doing it, but they did not have the evidence. However, the principle is the level of evidence required, and the Minister has just said that there would have to be some evidence for an injunction. What is the acceptable level of evidence? The whole point of the provisions is to drop that level dramatically from a criminal standard to a civil standard and that is a very serious point. What is the level of evidence, other than the suspicion of the council or the police, to say that these are the guilty people?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

As the hon. Gentleman knows, with respect to the two conditions, the evidence is the balance of probability, which is the civil standard. Since we are now quoting case law, I will quote another case back at him, but there are two conditions, one of which is the balance of probability. It is not just a case of police officers saying that—the judgment has to be made by a court. Once it is granted by the court, there is an opportunity of appeal to the High Court, as there always is. If the order is granted, the ability to vary the order, or to have it discharged, remains available both to the respondent and to the applicant.

It is important to look at the ASBO-civil order comparison. If someone receives an ASBO and it is breached, it is a criminal offence. It is not a criminal offence to breach a civil order—it is still a civil offence tried in a civil court and, significantly, there is no criminal record, because it is a civil offence. There is therefore a significant difference. As for the standard of proof, the breach has to be to the criminal standard—beyond reasonable doubt. There are two conditions: a preventive civil order—I know the hon. Member for Chesterfield does not agree with that, but that is the argument that we make—and the balance of probability. However, we recognise the seriousness the situation if there is a breach, even though that is not a criminal offence, by moving to the standard of proof, which is “beyond reasonable doubt”.

Paul Holmesrose—

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

If the hon. Gentleman is going to quote McCann at me, I will come back to that in a little bit.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

Is there a contradiction in what the Minister has just said? On the one hand, he says that those are more serious offences than ASBOs would normally be used for—ASBOs are used for relatively low-level disorder on the streets and street corners—because we are talking about serious gangs, crimes and knifings. The Minister says that the same standards applied to ASBOs apply here, but to a much more serious situation. If we are making the comparison with ASBOs, the Minister should explain why we need these new clauses and injunctions, with a different set of evidence criteria. Why are we not using the existing legislation, as the Court of Appeal says that all the existing legislation on ASBOs is more than adequate to deal with this matter? It said that it was convinced that that legislation was perfectly adequate.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I will come on to the issue of the standard of proof. There is clearly a difference of opinion. I will not read out the Birmingham statistics again, but all the powers to which the hon. Gentleman referred, including ASBOs, were available to the police, to the council in Birmingham and to others. However, when they used the power of injunction, there was a dramatic change.

I often say this, and it is not meant as a disrespectful point to the hon. Member for Hornchurch or anyone else, but if the hon. Gentleman was in my shoes and he was presented with that evidence on that particular public policy, he would see that it was an innovative and exciting initiative by Birmingham city council. It had an effect, and I think that it would have a pretty good effect on the rest of the country. It would save lives, and it would prevent people from getting into trouble in the first place.

We have tried to include judicial oversight in this measure, which is why I took exception to the reference to internment. All the way through the Bill—not just in these provisions but in every clause—I have tried to ensure that there is judicial oversight. There is sometimes an argument about what the level of that oversight should be. However, I am very conscious of the need for judicial oversight and of the whole human rights debate; I try to include an awareness of those issues in everything that we do. Nevertheless, the change in Birmingham was dramatic. There are people walking the streets of Birmingham now who would either be dead or in prison but for the use of that injunction.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

Does my hon. Friend agree that, in this instance, what he is doing is identifying non-criminal behaviour to identify patterns of behaviour that might lead to serious violence, whereas for the ASBO there is an unacceptable level of antisocial behaviour already there? It is quite appropriate that we should have different levels of proof and different processes. If people engaged in the gang-related violence, they would be prosecuted for the offence, whether it was a stabbing or whatever.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

My hon. Friend is right to point out that, essentially, we use the appropriate tool for the particular action that we see in the community. The ASBOs that were available simply were not having the impact in Birmingham that the injunctions were having. It is a sign of my age, but I think that if people saw that we were not going to use those injunctions, they would say, “I can’t believe it”. I shall leave it at that.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

This is my final last intervention, because otherwise we will start to go round in circles. I cannot give the exact quote, because I have given it to the Hansard reporter, but the Court of Appeal said that the evidence that was presented was too flimsy to justify an injunction, which has serious implications.

Anybody in authority, such as a teacher—I have been a teacher myself—or a policeman on the street can always say, “Oh well, if I could just act outside the law, I could round up anybody, as I know who the suspects are”. They would always want to push that, in order to do the job. The point of making the law in Parliament is to set the boundaries within which that process operates. That is what we are asking for. If the Court of Appeal felt that the evidence was too flimsy for such a serious injunction, how does the Minister defend changing the law to allow that relatively flimsy evidence to lead to such serious injunctions?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I am not trying to allow flimsy evidence to justify giving somebody an injunction under this provision and under the new clauses. I am trying to clarify matters and to give to courts the power to give an injunction to someone where it is demonstrated to the satisfaction of a court that they have been involved in gang-related violence.

The hon. Gentleman will see that the judgment that he quoted from the Court of Appeal said that the injunction was being used to tackle antisocial behaviour, rather than violent behaviour. Antisocial behaviour orders tackle antisocial behaviour, but injunctions can be used to tackle violent behaviour. Through the new clauses,  we are trying to ensure that it is clear that the courts can impose injunctions on individuals involved in gang-related violence. If the hon. Gentleman rereads the court judgment on Shafi and Ellis, he will see that it says that an injunction was used to tackle antisocial behaviour, not violence.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 1:30 pm, 26th February 2009

In that judgment, the Master of the Rolls and Lord Justice Rix said:

“Parliament has recently legislated to restrain anti-social behaviour in a particular way and subject to particular safeguards.”

They were suggesting that Parliament had decided that that was the most appropriate way forward. The question for the Minister and for the Committee is: are we satisfied that the tools available to local authorities and the police, subject to appropriate safeguards, are sufficient and appropriate? I do not think that the Court was deciding whether it felt that they were sufficient. As that quote indicates, it is a matter for Parliament to consider whether the tools—ASBOs, section 222 injunctions or otherwise—are sufficient to deal with the problems that, sadly, we face.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

The last two or three contributions have helped to clarify the matter. Essentially, it is about injunctions being used to tackle antisocial behaviour, rather then violent behaviour, and the need for Parliament to make it clear that the courts can impose injunctions to tackle gang-related violent behaviour, which is why we introduced the provision.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Sometimes it is difficult to understand the situations within which the measure would be warranted that the police have to deal with. On Monday in Liverpool, a gang of boys circled the car of a district nurse who was trying to get into somebody’s house to do a dressing. They all had knives and made it clear that they were not going to allow her to leave her car, which they smashed and scratched when she called the police on her mobile phone. As the hon. Member for Northampton, North said, that shows a pattern of gang-type behaviour that, next time, could be far worse. It is difficult for us to say what kind of evidence would demonstrate when those patterns of gang-related behaviour, which start at 12 and 13 years old, develop into something more serious. A measure such as this would stop that in its tracks early on.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

That is helpful. We are giving the courts the power to impose injunctions where there is gang-related violence. I shall come back to under-18s, but I want to move on to general points and put something specific on the record.

I have said to the hon. Member for Hornchurch, but would like to reiterate for the hon. Member for Chesterfield, that there is an issue with the definition of gangs, and I will reflect on that to see whether we can properly incorporate one into the Bill, if possible. There are different definitions. Manchester defines gangs as

“A group of three or more people who have a distinct identity...and commit general criminal and anti-social behaviour as part of that identity. This group uses (or is reasonably suspected of using) firearms, or the threat of firearms”.

The London definition is:

“Street gangs are relatively durable, street-based groups who see themselves and are seen by others as a group for crime and violence which are essential to group practice and solidarity.”

I was not trying to make a political point but, again, the right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) listed the four conditions that the hon. Member for Hornchurch has put forward, but said that they all had to be satisfied for that behaviour to be gang-related, but the hon. Gentleman’s amendment requires any of those conditions to be met. Clearly, we have to have more in the Bill about the definition of a gang, but it is not easy. We do not want it to mean, as, I think, Liberty said, “just a group of hoodies”—of course not. Violent behaviour and the other things that we have talked about have to be involved. I will reflect upon it. I hope that that has answered the general point about definitions.

As I have said to the hon. Gentleman, although I will not accept his amendment, I will look at this because I know he is trying to see how we can deal with that, what sort of definition we come up with and what we need to put in the Bill. Similarly, I accept that there is need for broader consultation. I need to see whether there are other people we should consult too, such as employers.

New clause 24 talks about the code of practice. There is a need to toughen it up. My hon. Friend the Member for Northampton, North made an important point about the code of practice. We will need to publish a draft and put it before Parliament so it can be discussed. The code of practice will be essential for the operation of these powers. Rather than just being published by the Secretary of State, it needs greater parliamentary scrutiny.

On the under-18s point, I am sorry if I am not making myself very clear. I am not trying to confuse anybody. I am laying out what the situation is. The injunctions can be used for under-18s, but it is unlikely that they would be used in practice because they are not enforceable. I take the point that some people would have an income. The vast majority of people whom these injunctions are designed to catch may have a source of income, but it is not likely to be legitimate. A court would have to take that into account. The breach would be a contempt of court because it is a civil offence. It is not possible to send anyone who is under 18 to prison or a youth offender institution for a civil contempt of court, so there is no enforceability of the injunction.

What I have said—and nobody, including the hon. Member for Chesterfield, disagreed—is that the public will point to the 13, 14 or 15-year-olds who are out there. The hon. Member for Mid-Bedfordshire described how her constituent was surrounded by kids with knives. I do not know whether they were 13, 14 or 15. People will point out that the injunctions are about trying to tackle serious gun-related violence but do not or are unlikely to apply to under-18s. They will ask what on earth we are doing when many people of 14, 15 or 16 are likely to be those to whom such an injunction would apply.

There is a public policy gap. I have asked my officials to work with other officials across Government to see whether there is something proportionate that takes into account all of the legitimate concerns everybody will have and to try to find a way forward. I have also said that I will talk to and involve other Members on  this because it is so important. I know the difficulty of trying to get it through. Without some sort of consensus it will not go through Parliament. That will leave us with the situation where the public will ask why we are not dealing with some of the most serious violent individuals in our communities. That is all that I have said. I do not know what the answer will be, but it would be remiss and an abrogation of my responsibility to say that I will not even try to look at it when I know it is a problem.

I know that this will create problems. I know that all sorts of issues will arise from it. But that is the price that has to be paid for trying to do the right thing. That is what I will do. Whether it is possible, I do not know. But that is what I will do. In the end, if we can deliver something for under-18s, it will save lives and it will prevent harm in communities.

I was asked whether these injunctions would stand alone or be alongside criminal convictions. These are stand-alone injunctions. They cannot be imposed upon conviction. Our preference is always to engage the criminal justice system where there is sufficient evidence of a criminal offence. That is why these injunctions are not punitive. They are imposed as a sanction for bad behaviour. They are imposed as a preventive measure to prevent gang-related violence. As I have said, the injunctions will not be imposed to punish someone for what they have done, but to prevent future gang-related violence. That is why the two stages of the injunction test are distinct. Past behaviour must be proved, but that is not enough for a court to grant the injunction. If the court is not satisfied that an injunction is necessary to prevent gang-related violence, an injunction will not be granted, notwithstanding any past behaviour. For that reason, we can confidently say that the injunctions are preventive measures.

The hon. Member for Chesterfield mentioned the House of Lords’ decision in McCann, in which it said that an enhanced civil standard of proof akin to the criminal standard should apply when granting an ASBO. He will also know of when, in the case of re. B—a child—that House considered the question of the sliding scale of the standard of proof. The ruling was clear that there is only one civil standard of proof—the balance of probabilities. That is the standard for the injunctions, as new clause 11 makes clear. These injunctions are civil tools made in the civil courts, and breach of them is contempt of court.

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

If I understand correctly, the Minister seeks to distinguish the orders from the McCann judgment, which I think was my point to him when asking if that was his intention. If he reflects on the Shafi and Ellis decision, he will note that the court suggested that the McCann standard would be applicable in those sorts of injunctions. I wish, therefore, to understand what he is saying about these orders. Does he see the standard here as purely the balance of probabilities, and not the sliding scale that could equate to the criminal standard as was suggested in McCann in relation to ASBOs, and which seemed to be extended to section 222 injunctions in the context of the judgment that gave rise to this proposal?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Yes, we do see the standard here as consistent with the civil standard of the balance of probabilities and as distinct from the McCann judgment.  A breach of an ASBO is a criminal offence. There are all sorts of problems with ASBOs, for example they are initially imposed for two years with no variation or discharge possible. The balance of probabilities is the appropriate standard of proof here.

On the duration of conditions, it is right to say that the requirements and prohibitions that can be attached to an injunction can last until further order of the court, rather than until a specified date, but it is unlikely that the courts will grant an order with indefinite conditions without setting a review hearing. The guidance will also encourage the setting of review hearings for longer or indefinite injunctions. Also, the respondent can apply to vary or discharge any part or all of the injunction.

Injunctions are not a criminal sanction; they are a civil tool to prevent gang-related violence. We do not wish to criminalise respondents for breach of an injunction and that is why there is no such criminal offence. That is a clear difference from ASBOs.

An injunction can be imposed if that is necessary to protect the respondent from gang-related violence. Victims quickly become perpetrators and vice versa, particularly in retaliation attacks. In most cases, gang violence occurs between rival gang members. A person subject to an injunction would be a known gang member who had committed, encouraged or assisted gang violence. This provision focuses on the fact that in some cases a gang member is known to be putting themselves at risk of a reprisal attack. The hon. Member for Hornchurch made that point. That is why we have the reference to the protection of the individual; we are almost trying to protect them from themselves. I will give an actual example. A young man was known to be the target of a gang attack. He was warned of that, but insisted on continuing to enter the area in which he was going to be attacked. In such a scenario, we would want to prevent the gang-related violence, not just because of the individual respondent who is at risk both of committing violence and being the victim of violence in the event of a confrontation, but because of the risk to innocent bystanders who all too often are unwittingly caught up in fatal attacks by being in the wrong place at the wrong time. We therefore feel it necessary to have that option. The injunction is likely to be needed to prevent the respondent from engaging, assisting or facilitating gang-related violence, and from being a victim of such violence. The two go hand in hand.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 1:45 pm, 26th February 2009

I do not know whether the Minister would care to comment, but some police officers to whom I have spoken have indicated that, in reprisal situations, the alternate gang will sometimes seek to attack almost indiscriminately in the area around which a particular gang member may reside or is seen. Am I therefore correct in understanding that, in essence, the injunction will not only protect the individual subject to it from harm, but will also equally protect those around them who may innocently fall victim to an appalling crime simply by being in the wrong place at the wrong time?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

That is a reasonable point. The point of the injunction is to protect the individual from themselves, as it were, but, as a by-product of that, it may well end  up protecting innocent people in a community who find themselves caught up in a gang-related attack. As the hon. Gentleman said, when people seek retaliation or revenge in an area, innocent people might be affected, so the injunction, while protecting the individual, may have the benefit of protecting innocent people in the community, or on a street, as a consequence.

I should also, by way of conclusion, refer to new clause 9, which relates to the end of the Bill. I would like to put it on record that it is the Government’s intention basically to accept new clause 9, but we would like it to be withdrawn, because we need to redraft it appropriately. It is our intention to reinstate it on Report, which will be of interest to the hon. Members for Hornchurch and for Bury St. Edmunds, as well as the hon. Member for Mole Valley (Sir Paul Beresford) who is actually responsible for much of it.

We have had a good debate, and I have no further comments. If the provisions are successful in relation to over-18s, and we can find a way forward in relation to under-18s, we will significantly enhance safety on our streets. Furthermore, we will protect people who would otherwise be killed, prevent others from the effects of serious gang-related violence and prevent some individuals from ending up in prison on long-term sentences. I thank the Committee for today’s debate.

Amendment 290 agreed to.

Clause 89, as amended, ordered to stand part of the Bill.

Clause 90 ordered to stand part of the Bill.

Clause 91 ordered to stand part of the Bill.