The House of Lords Select Committee on the Constitution published a report on 24 January 2007 on the Serious Crime Bill as it relates to our constitution.
Of particular interest is the background it gives to the growing use of civil orders to prevent crime - and how far we have come since A V Dicey, a jurist and highly influential constitutional theorist, wrote in 1914 that:
The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification.
That anybody should suffer physical restraint is in England prima facie illegal and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it.
As the Committee said (my emphasis italicised),
Over the past 20 years, public policy has increasingly reflected the view that criminal prosecutions and sentences alone may be an inadequate legal response to criminal and other unacceptable behaviour.
The statute book now contains a growing number of examples of a different model: powers enabling individuals or public authorities to seek civil orders from a variety of courts to prohibit undesirable behaviour, backed by criminal sanctions if the subject of the order breaches the order.
And as civil orders are rather easier to obtain than criminal sanctions, being subject to a lesser burden of proof – a ‘balance of probability’, rather than ‘beyond reasonable doubt’ – it is no wonder they are attractive to legislators.
So without further ado, here are the examples the Committee gives of these “inroads into personal liberty”:
- The Company Directors Disqualification Act 1986 created a civil remedy of disqualification, which enabled the court to prohibit a person from acting as a director; breach of such an order is subject to criminal sanction.
- Part 5 of the Criminal Justice and Public Order Act 1994 created a power for police to request that a local authority make an order to prohibit trespassory assemblies which could result in serious disruption of the life of a community or cause damage; breach of an order made under these provisions may result in criminal prosecution.
- Part 4 of the Family Law Act 1996 conferred powers to make residence orders (requiring a defendant to leave a dwelling house) and non-molestation orders (requiring a defendant to abstain from threatening an associated person); criminal sanctions are available for disobedience to these orders.
- The Protection from Harassment Act 1997 created a criminal offence of harassment (section 1), but section 3 also created a civil remedy, enabling individuals to apply for an injunction in the High Court or a county court to restrain another person from pursuing conduct which amounts to harassment, and breach of such an order was made a criminal offence.
- The Crime and Disorder Act 1998 created anti-social behaviour orders (ASBOs); local authorities were empowered to seek orders from the magistrates’ court where a person acted “in a manner that caused or was likely to cause harassment, alarm or distress” (section 1). The Act also created sex offender orders; a chief officer of police was given power to seek such an order where a person is a sex offender and that person acts “in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him” (section 2).
- The Football (Disorder) Act 2000 created “banning orders“, designed to prevent known football hooligans from causing further trouble at home and abroad. Breach is subject to criminal penalty.
In fact there are two types of banning order that can be made: one, on conviction of an offence; two, on a complaint.
- The Anti-social Behaviour Act 2003 amended Part 8 of the Housing Act 1996 to give powers to housing authorities to seek ASBOs.
- Part 2 of the Sexual Offences Act 2003 (which repealed the Sex Offenders Act 1997) created “sexual offences prevention orders“, “foreign travel orders” and “risk of sexual harm orders“.
- The Prevention of Terrorism Act 2005 created control orders “against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism” (section 1) and “a person who, without reasonable excuse, contravenes an obligation imposed on him by a control order is guilty of an offence” (section 9).
The Committee said of Serious Crime Prevention Orders,
We draw to the attention of the House the fact that the far-reaching restrictions of a SCPO may be placed on a person against whom no criminal proceedings have been instituted or who has been convicted of no criminal offence.
Moreover, the restrictions which can be imposed are not limited to conduct forming part of the particular type of crime which has been proved, by civil standards, against the defendant.
ASBOs and other types of control order that now exist on the statute book generally deal with small-scale anti-social behaviour and have little impact on third parties associated with the subject of those orders. SCPOs will have a much wider reach.
A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders.
Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction.
Of course, while the BBC and the Times (among others) ran stories on Norman Baker MP (LD, Lewes) finally winning his two year battle to have the Commons release detailed breakdowns of MPs’ travel expenses, neither saw fit to link to the page where you can see for yourself.
The Information Tribunal’s decision (97Kb PDF), published on 16 January 2007, might also be of interest.
Something useful to note here for context is that the Commons received “167 requests for information about Members’ allowances since the FOIA came into effect”.
Under the Government’s current proposals to change the way the FOIA operates, the Commons might be allowed to aggregate those requests (“apparently acting in concert” within 60 days) for the purposes of deciding whether or not the responses would exceed the maximum fee, and therefore be allowed to exempt the information on the grounds it would cost too much.
The consultation (214Kb PDF) on the new regulations is open until 8 March 2007.