UK Liberty

Serious Crimes Bill – Serious Crime Prevention Orders

Posted in control orders, Serious Crimes Bill by ukliberty on October 23, 2007

Debated yesterday in the Commons.

(Possibly worth looking at my earlier commentary on the Bill, particularly the article entitled “On the growth of civil orders to prevent crime and the Serious Crime Bill“, for some background).
Let’s be clear, as Jeremy Browne (Taunton, Liberal Democrat) said:

the Bill’s underlying assumption: that we essentially know who is breaking the law, but we do not have enough evidence to prove it, so we will make legislation that means that we do not have to come up with such evidence, because we can restrict those people’s liberty severely without needing to prove that they have done anything wrong

Or as the House of Lords Select Committee on the Constitution put it,

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.

Back to Jeremy Browne:

people’s travel can be restricted, within the United Kingdom as well as abroad, and they may also be restricted in where they can work, live and visit. Short of sending people to prison, pretty much every imaginable restriction on the liberty of the citizen may be involved, and if people fail to comply with the orders, the sanctions extend as far as a prison sentence. In some cases, it is entirely possible that somebody contravening the orders might go to prison despite never having committed a criminal offence or having been found guilty according to a criminal standard of proof.

Furthermore, the orders can apply for anything up to five years—indeed, they are more draconian than that, because the five-year period is indefinitely renewable. Somebody could have a most severe restriction on their liberty for the remainder of their life without having committed a criminal offence or having been found guilty by any criminal standard of proof.

He sums it up pretty well, I think.

He also noted the language being used by the Government, for example

[Baroness Scotland] talked about the “likely”—another qualification—standard of proof being “very close” to the criminal standard. Everyone will note that she did not mention “the criminal standard”, merely one “very close” to it.

(in other words, what the hell does “very close to beyond reasonable doubt” mean?)

and

The Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker) said during earlier deliberations on the Bill:

“On clause 1(1)(a), we would expect the standard of proof to be virtually identical to that for criminal proceedings” ——[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 19.]

Again, the caveat is entered: not identical, but “virtually identical”.

(alternatively, “virtually identical to beyond reasonable doubt” – what does that mean?!)

On Second Reading, the Minister for Security, Counter-Terrorism, Crime and Policing said:

“we expect that the standard of proof required in relation to the question of whether a person has been involved in serious crime will be the same as in criminal cases”—[ Official Report, 12 June 2007; Vol. 461, c. 664.]

However, that standard has not been put into the Bill; at present, according to the verbal guidance given by most Ministers, we are some way short of the criminal standard of proof.

We cannot trust Ministers’ assurances about how the Bill will operate.  We must look at the wording of the legislation – that is what will be interpreted by the courts.  As  James Brokenshire (Hornchurch, Conservative) said,

it is important, for the sake of certainty and clarity, to avoid the need for case law, and for interpretation to make this relatively simple issue clear in the Bill by way of the amendments.

Or as John Gummer (Suffolk Coastal, Conservative) asked,

When the Minister said that the tests would be virtually the same, it raises an important question. If they are virtually the same, why can they not be the same?

And of course the Government, represented by Vernon Coaker (Gedling, Labour, Parliamentary Under-Secretary at the Home Office), declined to answer.

The Honest and Straightforward Titling of Legislation Act

I call for a bill to require our great leaders to honestly name their legislation.

I like things that do what they say on the tin.

Here are some examples:

(Ok, that was a bit long-winded)

  • The Terrorism and Anti-Heckling and Possibility of Being Arrested for Wearing a T-Shirt Act
  • The Serious (except for Armed Robbery) and Not So Serious Crimes Such As Unauthorised Salmon Fishing Bill
  • The Anti-terrorism, Crime, Security, and Indefinite Detention of Foreigners Without Trial Act
  • The Prevention of Terrorism and House Arrest Without Trial Act

On the growth of civil orders to prevent crime and the Serious Crime Bill

Posted in control orders, politicians on liberty, Serious Crimes Bill by ukliberty on February 14, 2007

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 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.

Serious Crime Bill achieved Second Reading yesterday

Posted in database state, Serious Crimes Bill by ukliberty on February 8, 2007

Read the debate on the Bill.

On Part 1

Serious crime prevention orders were discussed previously on this blog.

The Committee on the Constitution is quoted in the debate as saying that,

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.

Lord Lloyd of Berwick made a good point on the issue that judges will make the orders:

People on the fringes of crime who are thought to have been involved are entitled to the verdict of a jury one way or another. What is not tolerable is for that question of fact—because it is a question of fact—to be decided by a judge. It is not what judges are for. In criminal cases and quasi criminal cases, it is the jury which decides disputed issues of fact and not the judge.

Lord Goodhart (chairman of Justice) made the point that,

The Government say that all this is okay because SCPOs will be made by judges who will act reasonably; they will be aware of the impact of the Human Rights Act and will apply it. That is true, but it is not an answer. We should not create laws which enlarge the scope for injustice and rely on the judiciary to apply them with moderation. What we want are just laws, not the just application of unjust laws.

On Part 3

It is well worth reading the debate to get more information on the data sharing and matching (or data mining) aspect of the draft Bill, which I have not seen described in detail by the mainstream media.

The Bill says,

The [Audit] Commission may conduct data matching exercises or arrange for them to be conducted on its behalf. A data matching exercise is an exercise involving the comparison of sets of data to determine how far they match (including the identification of any patterns and trends).

The Commission may require any body mentioned in subsection (2), and any officer or member of such a body, to provide the Commission or a person acting on its behalf with such data (and in such form) as the Commission or that person may reasonably require for the purpose of conducting data matching exercises.

The Information Commissioner’s warning, that we are sleepwalking into a surveillance society, seems very prescient today.

moron the Serious Crimes Bill

Posted in rule of law, Serious Crimes Bill by ukliberty on January 19, 2007

I missed a Telegraph article on Super ASBOs. Like other newspapers it talks about them being targetted at “gangsters” and “Mr Bigs”, and quotes the Home Office “suggesting” that the orders “might” be issued against up to 30 “suspected criminals” a year.

Of course, there are no such limitations in the Bill.

Now, don’t worry:

Vernon Coaker, the Home Office minister,

– Under-secretary of State for policing, security and community safety, reporting to Liam Byrne, who in turn reports to John Reid –

yesterday insisted the new orders would comply with human rights provisions and would be welcomed by law enforcement agencies.

Well he would say that, wouldn’t he?

The Home Office bases this believe [sic] on the fact that orders are designed to prevent crime, one of the grounds on which breaches of other human rights is permissible.

Well, it depends.

There were six people suspected of terrorism who were issued with control orders. Note that none of them was charged with any offence prior to being issued with an order.

Lord Carlile, the Government’s independent reviewer of terrorism legislation, was quoted by the courts as saying,

The obligations include an eighteen hour curfew, limitation of visitors and meetings to those persons approved by the Home Office, submission to searches, no cellular communications or internet. And a geographical restriction on travel. They fall not very far short of house arrest, and certainly inhibit normal life considerably.

The six challenged the orders, which were quashed by the courts because the obligations amounted to a “deprivation of liberty” contrary to Article 5 of the European Convention on Human Rights.

In other words, you have to be careful about the extent to which you breach human rights when you are preventing crime.

The Home Office insisted yesterday that judges would take a “proportionate” and common sense approach when considering orders.

The orders, by the way, can only be applied for by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the Director of the Serious Fraud Office, and the Director of Public Prosecutions for Northern Ireland.

However, the sweeping wording of the Bill makes clear judges can make an order if someone is suspected of having been involved in crime, or likely to be involved in the future, and even if the individual does not actually know or intend to act criminally.