Criminal Justice Bill (Tenth sitting)
Thursday 18th January 2024
(3 months, 1 week ago)
Public Bill CommitteesCriminal Justice Bill 2023-24 View all Criminal Justice Bill 2023-24 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 January 2024 - (18 Jan 2024)
The Parliamentary Under-Secretary of State for Justice (Laura Farris)
Clause 30 makes amendments to the Criminal Justice Act 2003 to ensure that offenders who are convicted of coercive or controlling behaviour and receive a sentence of 12 months or more in custody are automatically managed under the multi-agency public protection arrangements. That will mean that the police, probation and prison services must assess and manage the risk of controlling or coercive offenders in the same way as violent, sexual and terrorist offenders. A range of agencies will also have a duty to help to assess and manage these risks.
This is just the latest development of the law on coercive and controlling behaviour. This Government were the first to formalise coercive control as a criminal offence under section 76 of the Serious Crime Act 2015. We extended it to apply even after the end of a relationship under the Domestic Abuse Act 2021. In a number of different legislative vehicles, we have applied coercive control as an aggravating or, in some cases, mitigating factor for the purposes of sentencing. Today, we are adding it to the MAPPA arrangements in certain circumstances.
We are doing this for three reasons. First, it will build on what we have already done to ensure MAPPA is used for high-risk domestic abuse cases. We have strengthened the statutory guidance to require agencies to consider discretionary management under MAPPA in all domestic abuse cases. In the last reporting year, we have seen a 30% increase in the take-up of that offer. For that reason, we consider it appropriate to put it in the Bill.
Secondly, we also know that it is a significant risk factor for future abuse and that it is a known risk factor in domestic homicide, so this clause is pre-emptive. It will support the identification and risk management of perpetrators, thereby disrupting potential abuse, preventing revictimisation and protecting future victims.
Third, we are bringing coercive and controlling behaviour offences in line with other violent offences connected with domestic abuse. Perpetrators of other forms of domestic abuse, including threats to kill, actual and grievous bodily harm, attempted strangulation, harassment and certain stalking offences, are already eligible for automatic MAPPA management. We think that it is right to bring coercive control in line with those.
Jess Phillips (Birmingham, Yardley) (Lab)
I have just said that I would not contribute because I want to get off, but obviously I have not stuck to that. How many people will this clause bring in line with the law? We have some evidence from Refuge, which I cannot put my finger on right now—I am sure I will be able to manage that in a moment. I know and remember from the evidence sessions that a tiny, tiny fraction of people receive a sentence of more than 12 months in cases of coercive control. Would the Minister provide us with some understanding of exactly what this groundbreaking realignment of the law will actually bring about?
We still fail to recognise, though we must recognise it, that no one is convicted in the vast majority of cases of coercive control, domestic abuse-related crime or sexual violence. The monitoring that is needed must come before the instance. Schemes are currently being run by the Metropolitan police around the 100 highest priority at-risk offenders. In reality, however, although I am delighted that the Minister heralded some previous amendments of mine in a Bill Committee not dissimilar to this one—she is welcome—that is not what we are talking about in this clause. If it is more than 200 people, I would be surprised to hear that. I will find the data while she responds.
The Government are proposing legislation that allows us to monitor people as we do for terrorism, but in cases of terrorism no convictions are needed to undertake the type of monitoring that we hope our security services are doing day in, day out to prevent terrorism. To suggest that monitoring will happen only on conviction is absolutely not in line with terrorism. We still have a two-tier system, where the actual domestic terrorism that occurs in people’s homes is still very much allowed to happen.
Alex Cunningham (Stockton North) (Lab)
The clause makes a straightforward amendment that would provide for the automatic, rather than discretionary, MAPPA management of offenders convicted of controlling or coercive behaviour in an intimate or family relationship who are sentenced to 12 months or more. As a result, such offenders will be treated as category 2 rather than category 3 offenders for MAPPA purposes.
It should come as no surprise to the Government that we enthusiastically support the clause. Labour has committed to halving incidents of violence against women and girls within a decade. For far too long, those dangerous criminals have been let off and victims have been let down. Indeed, the multi-agency public protection arrangements were introduced by the last Labour Government in 2001 under the Criminal Justice and Court Services Act 2000, being strengthened again in the Criminal Justice Act 2003. Those arrangements see the police, probation and prison services working together to ensure the proper management and monitoring of sexual or violent offenders. In a joint thematic inspection of MAPPA, I have seen them called
“one of the success stories of the criminal justice system”.
The inter-agency approach of MAPPA improves public protection by bringing together criminal justice organisations, as well as others, in a structured way to address and actively manage the behaviour of offenders who can sometimes be difficult to accommodate and who may pose serious levels of risk. Labour is in complete agreement with the Government that perpetrators of coercive and controlling behaviour should be brought more directly under the remit of MAPPA. As Women’s Aid said, this signals that the crime of coercive and controlling behaviour, which is central to so much domestic abuse, is being taken more seriously by the justice system. As it also points out, bringing CCB offenders automatically under the remit of MAPPA is particularly important given the links between coercive control and homicide.
For cases where there is high risk of domestic abuse, the active management and inter-agency engagement that MAPPA provides can be an effective response. However, a report by His Majesty’s inspectorate of constabulary and fire and rescue services in 2021 identified a lack of multi-agency management of individuals who posed the most significant risk of harm to women and girls through domestic abuse. As part of the inspection, HMICFRS asked forces to identify the five individuals whom they considered posed the highest threat to women and girls within the local force area. Of the 40 individuals identified, only three were being managed under MAPPA.
Additional guidance for category 3 offenders who are perpetrators of domestic abuse has been welcome, but HMICFRS noted in its 2022 MAPPA review that there
“is still not a clear enough pathway for those who pose a risk of harm through domestic abuse, particularly for those who commit lower-level offences over a sustained period of time but pose a real risk of harm to their victims through long-term abuse.”
The impact that the clause might have, while welcome, as my hon. Friend the Member for Birmingham, Yardley said, is relatively limited, given the number of individuals who have been convicted of coercive and controlling behaviour since the introduction of the offence in 2015. Fewer than 2,000 people have been convicted of that offence, and yet—I think this is probably one of the most important points that I will make during this Committee—the data from the crime survey in England and Wales estimates that 2.1 million people experienced domestic abuse in the year ending 2023. Not every case of domestic abuse will include instances of coercive and controlling behaviour, but given the centrality of such offending behaviours in many cases of domestic abuse the number of CCB convictions still appears very low. Since the provision will apply to that relatively small cohort of offenders, it is difficult to discern what huge impact it will have.
I am interested to hear from the Minister about any additional provisions that her Department has been looking at in preparation for the Bill in relation to MAPPA and perpetrators of domestic abuse, particularly if it has looked at other measures that would make individuals who have committed domestic abuse MAPPA-eligible, because repeat perpetrators of this appalling violence against women and girls too often get away with their patterns of criminality and go on to commit more violence and cause more harm.
As I said, we fully support the clause and will vote with the Government, but we fear the level of impact that it will have. The criminal justice system is in crisis, and the Government are completely failing to address the shocking levels of violence against women. As with much of the Bill, we do not oppose the measures, but we are left wondering if these tweaks are all that the Government have to offer a system in crisis.
Laura Farris
I thank the shadow Minister for his speech and for supporting the clause. In answer to his final criticism that we have abandoned women and girls, the Serious Crime Act that created the offence of coercive, controlling behaviour received Royal Assent in February 2015. With respect to the hon. Member for Birmingham, Yardley, it predates her arrival in Parliament, but we created that criminal offence and we have been evolving its implementation since.
Laura Farris
I will make some progress. I want to respond to the points raised by the shadow Minister. [Interruption.]
The Chair
You do not need to apologise, but we are more freewheeling in Committee. If the hon. Lady wants to come back in later, she can.
Laura Farris
The provision has been welcomed by the Domestic Abuse Commissioner. She said:
“This provision will help to ensure that perpetrators are properly managed in the community and victims can be kept safe from further harm. The Commissioner welcomes this provision and will continue working with the government to develop proposals for the effective management of perpetrators.”
In answer to the hon. Lady’s question, in the data we have, which is from 2022, 566 people were convicted of coercive control, and it is estimated that, as she suggested, around 200 would be serving 12 months or more and would have been eligible for MAPPA management. We simply make the point that the MAPPA framework is used for the most serious offenders; whether it is a sexual, violent or terrorist offence, people qualify for MAPPA if their sentence is one year or more. We are not doing anything unorthodox or irregular in having that criteria in relation to coercive control.
I will respond to one of the shadow Minister’s final points. He asked whether there was provision for other forms of domestic abuse to fall under MAPPA management —the answer is yes. We strengthened the statutory guidance to clarify that MAPPA management can be considered by the relevant agencies in all domestic abuse cases. I hope that answers his query.
Jess Phillips
I did not find the piece of paper from Refuge, but I knew it would be about 200 people. Just to make it clear for the record, in one ward in my constituency there will be 200 violent perpetrators of domestic abuse. To the Minister’s point that she did not wish to take my intervention on the piece of legislation that was passed, I will never, ever criticise this Government on that. They have passed lots of legislation, so the skins of goats have had lots of words written on them. It means absolutely nothing—pieces of words on goat skin mean absolutely nothing if they are not then properly resourced, managed and implemented in our communities. The women in refuge accommodation speak of little else than what a nirvana it has been recently under this Government.
Laura Farris
I beg to move amendment 37, in clause 31, page 26, line 23, at end insert
“(and, in the case of a service offence, the corresponding offence is not so specified).”
This amendment provides that, for a service offence, the corresponding offence must also not be specified in Schedule A1 to the Sentencing Code.
The Chair
With this it will be convenient to discuss the following:
Government amendment 38.
Government amendment 39.
Clause stand part.
Laura Farris
Amendments 37 to 39 are not technical amendments, as my brief says; they are amendments that extend the operation of clause 31 to Scotland. I will be scolded by my officials if they do not agree, but that is what the amendments do.
Clause 31 ensures that categories of offender who were previously out of scope for polygraph testing are brought into scope. It ensures that there is express provision to enable the Secretary of State to impose mandatory polygraph testing as a licence condition for the most serious offenders who pose a risk of sexual offending or who committed historic offences connected to terrorism.
Polygraph examinations are used, most importantly, to monitor compliance with licence conditions, and the information obtained during testing is used by probation practitioners to refine and strengthen risk management plans. They have proved to be somewhere between 80% and 90% effective and have been used successfully by the probation service in the management of sexual offenders since January 2014. More recently, they were extended to terrorist offenders under the Counter-Terrorism and Sentencing Act 2021. Provisions in the Domestic Abuse Act also enabled the Secretary of State to commence a three-year pilot of mandatory polygraph testing on specified domestic abuse perpetrators.
Laura Farris
I don’t—[Interruption.] Yes, it has.
The clause extends eligibility for polygraph testing to offenders who have been convicted of murder and are assessed as posing a risk of sexual offending on release. It extends eligibility to those who are serving multiple sentences where the index sex offence will already have expired. To give a rather grim illustration of what that might look like, if somebody is sentenced for convictions of rape and murder, by the time of their release the sentence for the sex offence will have expired, and they would therefore not automatically qualify for polygraph testing without the extension that the clause provides.
The clause also extends polygraph testing to a cohort of individuals who have received non-terrorism sentences. At this point, I want to pick up on what Jonathan Hall told the Committee in evidence just before Christmas. This measure could apply, for example, in the case of someone who was convicted of conspiracy to murder but whose offences were an act of terrorism, took place in the course of an act of terrorism or were committed for the purposes of terrorism, if they committed their offences before the relevant legislation came into force.
The way in which we make that assessment will depend on the judge’s sentencing remarks. If, in sentencing, the judge made an express reference to the offending being in the course of terrorism, the extension provided by the clause would make polygraph testing applicable. We define this cohort as historical terrorism-connected offenders, and the polygraph testing licence condition is currently unavailable as a tool to manage the risk that they pose, although it would be available for an individual who commits the same offence today.
The intention of the clause is to fill the gap and provide more effective risk management in the community. I reassure the Committee that that does not mean that the person can be recommitted to prison. It is an assessment of their licence conditions. It affects their risk management. If it should later transpire that they have breached licence conditions, they could be recalled, but not by the polygraph test alone. As a whole, the clause will ensure that polygraph testing can be used to strengthen the management of those who pose a risk of sexual offending and those who committed historical terrorism-related offences.
Alex Cunningham
In his evidence to the Committee, Jonathan Hall said:
“In fact, if you look at the wording of the Bill, the Secretary of State will be allowed to be ‘satisfied’—not beyond reasonable doubt, just satisfied—on exactly the same test that currently applies to judges”
in determining whether the test should be taken. He went on to say:
“There is obviously a fundamental issue there, which I can expand on, but there is also a really practical issue, because what is a terrorism offence is not always very obvious.”—[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 66, Q170.]
He was clear that the clause might not have all the bolts and washers that it needs to be totally effective.
Nevertheless, I thank the Minister for introducing the clause. As she said, it will allow the polygraph condition to be imposed where the Secretary of State considers that an offender convicted of murder
“poses a risk of committing a relevant sexual offence on release”,
and where an offender is
“serving a relevant custodial sentence in respect of an offence who…at an earlier time during that sentence was concurrently serving a relevant custodial sentence in respect of a relevant sexual offence”.
It will also extend the use of polygraph conditions for terrorist offenders by enabling the Secretary of State to extend polygraph conditions to offenders where the Secretary of State is satisfied—just satisfied: this was the issue that Jonathan Hall was concerned about—that the offence
“was, or took place in the course of, an act of terrorism, or…was committed for the purposes of terrorism.”
Labour supports the clause. Where polygraph conditions have proved to be effective with certain offender cohorts, we should certainly be enabling the courts to impose such conditions to improve public protection. The extensions included in the clause are sensible additions to the scope of polygraph conditions.
We are also happy to support the Government amendments to the clause. They clarify some matters in relation to service offences and offences with alleged terrorism connections in Scotland. I would be interested if the Minister could share any additional recent evidence that she may have of the effectiveness of polygraph conditions on public protection, particularly if there are any ongoing assessments by her Department of the current use of polygraph conditions in England and Wales. Conducting polygraphs can be an expensive and time-consuming process, so I am sure the Minister will agree that we need to ensure that there is a robust evidence base to show that expanding the conditions will contribute further to public protection.
Although we support the clause, I am left to ask the Minister: is this all there is? Offender management has been in disarray for years, especially following the failed structural reforms through which the Government have dragged it. The Public Accounts Committee said that the probation service was
“underfunded, fragile, and lacking the confidence of the courts.”
That was even before the additional serious challenges that it has faced throughout and following the pandemic.
The chief inspector of probation noted that the high-profile independent reviews into the supervision of the likes of Damien Bendall and Jordan McSweeney found
“broader systemic issues in both cases which we are seeing time and time again, both in our local probation inspections and thematic reviews. These included: overloaded practitioners and line managers with well above their target workloads; significant delays in handing over cases from prison to community probation staff, resulting in last minute and inadequate release planning; and incomplete or inaccurate risk assessments. This is the case at both the court stage and start of supervision, with very inexperienced staff being handed inappropriately complex cases with minimal management oversight.”
That is the reality of our probation service today. It is another criminal justice agency in deep crisis.
A properly functioning probation service—I will say more about this on a later clause—is essential to keep the public safe by managing the risk of offenders in the community. The Government have brought yet another justice Bill before us and have given themselves another chance to improve the probation service and provisions around offender management. The Minister will probably talk about the new investment in the probation service, but we have to set that in the context of the huge cuts that the service has suffered since the current Government came to power in 2010. They have missed a lot of opportunities with this Bill. As I said on the previous clause, the offender provisions in the Bill are so slight that their impact will be negligible.
We are seeing a Government who have simply run out of ideas and are not doing enough to keep our communities safe. Although we fully support the clause, I again put on record our disappointment at the lack of ambition that the provisions show when our justice system is in chronic and intractable crisis.
Laura Farris
On Jonathan Hall’s comments, there are two points to make. First, given his expertise, it is relevant to consider what he said about polygraphs in general, which is that
“polygraph measures for released terrorist offenders are a good thing.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 64.]
You asked for an updated example of where polygraph testing had been instrumental, and he gave an example—in fact, I do not think it had been used—when he said:
“I was in favour of polygraph measures after Fishmongers’ Hall. It was partly on the back of one of my recommendations that polygraph measures were brought in. They always, or at least for a long time, existed for sex offenders. You will recall Usman Khan, who was clearly a very deceptive man. My view was that polygraph measures could be useful.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 66.]
It is difficult to prove a negative, but they were brought in shortly after that.
Carolyn Harris (Swansea East) (Lab)
Can the Minister clarify whether the polygraphs are administered by the private sector or the statutory sector? Given that we have had some startling problems with technical issues in the private sector of late, it would be interesting to know who is responsible for the polygraphs.
Laura Farris
Can I come back to you on that? The shadow Minister talked about the categorisation of former terrorist offenders, and I hope I can answer his point.
We have made the point, and I hope it was clear, that those who were convicted of an alternative offence where there was a strong belief that there was a terrorism connection—it is a small cohort—were convicted before the counter-terrorism law came in. They would have been convicted separately. Politicians are not making a random adjudication of whether an offender should be classified retrospectively as a terrorist. It is about looking at the sentencing remarks and what the judge, who heard all the evidence and sat through the trial, made of that offender.
It is a fair challenge. I know that it is quite an irregular provision in law to have, effectively, a retroactive clause. However, when you look at the failings that applied in the Fishmongers’ Hall case, there is a very strong public interest in ensuring that we maximise and extend the protection of this provision in a way that the public would find reasonable. When you refer back to sentencing remarks, you can be reasonably confident that you are—
The Chair
Order. I gently remind members of the Committee, from Ministers down, that when you use the word “you”, you are referring to me. You must refer to the hon. Gentleman either by his constituency or by his title, otherwise I might get a bit worried about what I have been up to.
Alex Cunningham
The Minister will know that we are very supportive in this entire area, but we have the right to highlight the issues that others have raised with the Committee. Jonathan Hall talked about the powers to carry out tests for people who may have served a sentence for a terrorism offence abroad and who return to this country. He went into some detail about that in his evidence. The Minister said that it is important that we have as strong a law as possible in the UK. On the overseas powers, Jonathan Hall’s final sentence was:
“Slightly ironically, the power that Parliament is being asked to create here would make the protections available to a domestic offender less than those that apply to a foreign offender.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 65, Q170.]
That is why the Minister needs to look again at the aspects that she has outlined. Clearly Jonathan Hall thinks that they could be strengthened.
Laura Farris
I thank the hon. Gentleman for his intervention, although I am not sure that I completely followed it.
To answer the point about who administers the polygraph testing, it is the probation service.
The hon. Gentleman asked about resourcing and funding. We have injected extra funding into the probation service, as he acknowledged: it is now getting an extra £155 million a year. In the past 12 months, there has been a recruitment exercise that brought in over 1,500 new recruits. That is on top of the 2,500 since 2021, so in the past two and a half years alone we have added 4,000 people to the service and given it some increased funding. I hope that that answers the hon. Gentleman’s questions.
Amendment 37 agreed to.
Amendments made: 38, in clause 31, page 26, line 31, after “applied” insert
“(and was not an offence in relation to which section 31 of the Counter-Terrorism Act 2008 would have applied if paragraph (b) of subsection (1) of that section were omitted)”.
This amendment excludes, from inserted subsection (4BB), an offence tried in Scotland where it was alleged but not proved that the offence was aggravated by having a terrorist connection.
Amendment 39, in clause 31, page 27, line 4, leave out “(4BB), (4BC) and” and insert “(4BA) to”.—(Laura Farris.)
This amendment is consequential on amendment 37.
Clause 31, as amended, ordered to stand part of the Bill.
Clause 32
Confiscation
Amendment made: 40, in clause 32, page 27, line 8, at end insert—
“(2) In Schedule 5 to the Proceeds of Crime Act 2002 (criminal lifestyle offences: Northern Ireland), after paragraph 9A insert—
‘Offences relating to things used in serious crime or vehicle theft
9B (1) An offence under section 1 of the Criminal Justice Act 2024 (articles for use in serious crime).
(2) An offence under section 3 of the Criminal Justice Act 2024 (electronic devices for use in vehicle theft).’”—(Chris Philp.)
This amendment adds the offences created by clauses 1 and 3 of the Bill to the offences listed in Schedule 5 to the Proceeds of Crime Act 2002 (criminal lifestyle offences: Northern Ireland).
Question proposed, That the clause, as amended, stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 62, in schedule 4, page 119, line 18, leave out paragraph 25.
This amendment would remove the risk of dissipation as a condition for the making of a restraint order.
Schedule 4.
The Minister for Crime, Policing and Fire (Chris Philp)
As always, Dame Angela, it is a pleasure to serve under your chairmanship.
Clause 32 introduces schedule 4 to the Bill, making reforms that are more than technical: they are significant reforms to the confiscation regime in part 2 of the Proceeds of Crime Act 2002, to which I suggest we refer henceforth as POCA. That Act was passed over 20 years ago. The measures that we are introducing apply only to the regime in England and Wales contained in part 2 of POCA; there are separate confiscation regimes that apply in Scotland and Northern Ireland in parts 3 and 4 of POCA respectively. We are discussing with the Scottish Government and the Northern Ireland Department of Justice whether the reforms introduced by the Bill should also be applied to the regimes in Scotland and Northern Ireland. If they so wish, no doubt there will be amendments in due course.
In 2018, the Home Office commissioned the Law Commission of England and Wales to review the confiscation regime and make recommendations. The commission’s report was published just over a year ago, in November 2022. It contains 119 recommendations, which have shaped the measures we are introducing in this Bill; essentially, we are implementing the Law Commission’s recommendations.
Reform is necessary to ensure that the confiscation regime operates as efficiently and effectively as possible, prevents criminals from retaining the ill-gotten gains of their criminality, and makes it clear to offenders and victims that crime does not pay. We will achieve that in schedule 4 by streamlining processes, creating realistic confiscation orders and expediting enforcement.
The Government have consulted extensively on the measures for reform, which benefit from over 20 years of operational insight. These reforms will support the delivery of key objectives in the economic crime plan 2 and the fraud strategy to reduce money laundering and increase asset recovery. The 10 parts of schedule 4 contain a number of reforms, which, broadly speaking, do what I have set out; I would of course be happy to go through them in detail should any Committee member so wish.
I note that the hon. Member for Nottingham North has tabled amendment 62. I propose to respond briefly to that amendment once the hon. Gentleman has spoken to it.
Alex Norris (Nottingham North) (Lab/Co-op)
It is a pleasure to see you in the Chair, Dame Angela. I rise to speak to amendment 62.
Clause 32 and the weighty schedule that it introduces deal with confiscation orders and the regime that governs them. As the Minister says, they are not technical; they are substantial and important. It is safe to say that it is a matter of unanimity across the House that where people are convicted who have benefited, and in many cases made huge sums, from crime and its attendant misery, that money should be recovered from them where possible. Convicted criminals should not make out ahead as a result of their crimes. They should always know that that is what we believe in this place—perhaps they should have priced it in as a cost of doing business that they will not benefit from the misery that they bring.
It is no great surprise that we believe strongly in the Proceeds of Crime Act 2002, but it is important to ensure that it remains effective, two decades on, and that gaps are closed wherever they may exist. The Law Commission work commissioned by the Home Office was very valuable. Its 119 recommendations will help us to improve the process by which confiscation orders are made, ensure that orders are made realistic and proportionate, and improve the enforceability of orders. Those are noble goals, and we are grateful to the commission for its excellent work. We welcome and support clause 32 and schedule 4.
There is only one small change that I would suggest, and I am interested in the Minister’s views on it. I am grateful that he is letting me make my case first; sometimes with groups of amendments we get the case against what we are about to say before we have said it, which always seems a little unkind. I would like to see what he thinks about my amendment 62.
The Committee took evidence from Kennedy Talbot KC that dissipation was a material factor in delaying or preventing restraint orders. He suggested that we take it out. His evidence was of great interest:
“I am sure that the Committee is familiar with the power for the court to make restraint orders preventing people who are suspected of crime, and then charged with crime, from dealing with their assets. At the moment, a statutory proposal in the Bill is that the risk of dissipation factor—such risk needs to be established for an order to be made under case law, not under statute—should be specified. The answer, in my view, is to scrap the risk of dissipation, so that it is not a requirement.
In many cases, what prevents prosecutors from applying for restraint orders is that they feel they cannot meet that test. Normally, that is because the case is brought to them some time after an investigation first started. The defendants are often aware that they are being investigated, and the case law more or less establishes that unless you can show that a defendant is on the point of selling his house or moving £100,000 to the UAE or whatever it may be, you cannot get a restraint order. Scrap the risk of dissipation.”––[Official Report, Criminal Justice Public Bill Committee, 14 December 2023; c. 102, Q44.]
The challenge put to us by Kennedy Talbot KC is that although the risk of dissipation factor is well meant and was designed to find a fair balance as to effectiveness and proportionality between the individual and the collective, it is acting as a perverse incentive not to pursue confiscation orders or pursue assets. I do not think that that is what we want.
I must say, my amendment is possibly not the most elegant way of making that a reality. It would simply delete paragraph 25 of schedule 4, which relates to the risk of dissipation. There may be—in fact, there doubtlessly will be—other ways in which that could be done, and we would be very interested in that.
I am interested in what the Minister has to say in response because, if he is not willing to accept my amendment, I think it is incumbent on him to say whether he shares Kennedy Talbot KC’s concern. If he does, how else might we clear that test? But if he does not share it, why not, because that seemed a pretty reasonable point to me?
On Scotland and Northern Ireland, the Minister pre-empted a question that I was going to ask. This seems like another area where a four-nations approach would be desirable, so that there are no parts of the Union where someone is treated differently, or where it is better to base oneself to exploit differences in regimes. The Government have tabled an awful lot of amendment for this Committee stage. I would hope and expect them to slow down that approach over the rest of this Bill’s stages—in this and the other place—but we would very much welcome it, and they would have nothing to fear, if they tabled an amendment. Perhaps the Minister will say whether any further conversations are planned. Clearly, very effective conversations have taken place on the rest of the Bill, but I wonder whether conversations on this have ground to a halt. Could the Minister tell us whether this is an ongoing process?
Chris Philp
I will first respond to the questions about amendment 62, to which the shadow Minister just spoke. I agree with the concern that he is raising. We must ensure that the barrier is not set too high, and that these orders can be made so that, where there is a risk of dissipation, the assets can, essentially, be placed under control so that they cannot be sold—or “dissipated”, as the Bill puts it.
As the hon. Gentleman said, there is already case law that the court has developed. It cannot be done arbitrarily. The court is essentially freezing someone’s assets, or preventing them from disposing of them at least, and there should be some sort of test before that draconian—but, of course, sometimes necessary—step is taken. That is currently in case law; all we are doing here is putting it on to a statutory footing. Law enforcement partners have welcomed that, because it provides clarity where currently there is simply case law.
Therefore, the Committee could reasonably ask itself whether the way in which this is drafted is reasonable and whether the test is set at the right level. The relevant part is part 8 of schedule 4, which starts at line 18 of page 119 and sets out exactly what the test is. As we would expect, the first test is that the first to fifth conditions in this section of POCA already apply. Secondly, the critical phrase is in paragraph 25(2)(a):
“there is a real risk that relevant realisable property”—
meaning stuff that someone can sell—
“held by any person will be dissipated unless the Crown Court exercises the powers”.
Therefore, the test is set as there being a real risk that the relevant property may essentially be sold off. That is where the threshold is: “a real risk”.
Chris Philp
I will in just one moment. Then, to determine whether there is a real risk, the schedule sets out towards the end of page 119 what the court may have regard to. That includes the nature of the property and the extent to which steps have already been taken, which is only one consideration, not a determinative consideration. Other items include the circumstances of the person and evidence of their character, which means that, if they are a crook, the court would take extra care. It would also have regard to the nature of the defendant’s criminal conduct. Are they a fraudster? Are they into money laundering and moving cash around? It will also take into consideration the amount of money involved and the stage of proceedings. Presumably that means that the further advanced the proceedings, the more sensitive the court will be. None of those different factors is individually determinative, but they should all be considered. On page 119, line 24 of the Bill, schedule 4 inserts in the Proceeds of Crime Act 2002 the critical phrase,
“there is a real risk”.
I would be interested to hear the shadow Minister’s view on that point, and not on any other points he may wish to intervene on.
Alex Norris
The Bill defines many terms, and I hope that “crook” will become one such term at a later stage. It is a great phrase.
In previous debates, the Minister has said that putting things on the record may be valuable to future court interpretation. What I am hearing from the Government is a clear message that by “risk of dissipation”, we are talking about not acts of or in the throes of, but a much broader definition. That would be enough comfort to me on my amendment.
Chris Philp
Yes, I am very happy to give the shadow Minister that assurance and to state clearly on the record in Hansard that that is the Government’s intent, and I think it is also the Committee’s intent—I can see waves of agreement rippling around Committee Room 10. We do intend for this to be applied widely. This does not just mean that an asset is on the cusp of being sold; it is much wider than that. It means that any real risk that property might be sold should engage the provisions of this clause, and the judge should have the confidence and, when this is passed, the statutory basis to make that order. The shadow Minister is absolutely right that there is cross-party agreement that this should be quite widely interpreted by the courts, should it be passed. I absolutely put on the record what he was saying.
On the shadow Minister’s other question, discussions are ongoing with the devolved Administrations. We would be very happy to extend these provisions to them. As he said earlier, it is much better that these things are done on a UK-wide basis. We the UK Government are certainly engaging constructively. I am hoping to have more to say on Report. If those jurisdictions want to take up these provisions, I expect there will be an amendment on Report, but it would obviously require their agreement. That is certainly something we would want to facilitate.
Question put and agreed to.
Clause 32, as amended, accordingly ordered to stand part of the Bill.
Schedule 4
Confiscation orders: England and Wales
Amendment made: 49, in schedule 4, page 96, line 21, at end insert—
“(4A) After paragraph 9B (inserted by sub-paragraph (4)) insert—
‘Offences relating to things used in serious crime or vehicle theft
9C (1) An offence under section 1 of the Criminal Justice Act 2024 (articles for use in serious crime).
(2) An offence under section 3 of the Criminal Justice Act 2024 (electronic devices for use in vehicle theft).’” —(Chris Philp.)
This amendment adds the offences created by clauses 1 and 3 of the Bill to the offences listed in Schedule 2 to the Proceeds of Crime Act 2002 (criminal lifestyle offences).
Schedule 4, as amended, agreed to.
Clause 33
Suspended accounts scheme
Question proposed, That the clause stand part of the Bill.
Chris Philp
Clause 33 and schedule 5 will enshrine in law a power for the Secretary of State to create a suspended accounts scheme, with details to be set out in regulations. The scheme will allow financial institutions, such as banks and building societies, to transfer to a Government-appointed scheme administrator amounts equivalent to the balances of customer accounts that have been suspended based on suspicion of criminality. These funds would then be used to finance projects relating to economic crime.
As part of its commitment to tackling economic crime, alongside its legal obligations—for example, to combat money laundering—the financial sector has been suspending customer accounts where it suspects criminal activity. Where practicable, our law enforcement agencies will then investigate such criminality. However, it is not always possible for law enforcement to investigate the alleged criminality to the point that a conviction can be secured, for a variety of reasons, including where the source of the funds and the owners cannot be identified, especially where techniques designed to obfuscate the funds’ origins or ultimate beneficial ownership have been deployed. As a result, quite a lot of money remains suspended across industry. From a survey conducted with the financial sector, it is estimated that it currently holds £200 million of suspected criminal funds in suspended accounts and that a further £30 million a year could be suspended in the future. There is currently no way to access those funds; they simply remain suspended.
This scheme presents an opportunity to leverage our world-class public-private partnership to extract the money that is currently suspended and to invest it in measures to combat economic crime. I am sure that we can all get behind that opportunity. We worked closely with industry partners on developing this measure and consulted with them. We held targeted stakeholder engagement to test the proposals, and they are broadly supported. I am grateful to the stakeholders for the work they have done. I think that this is quite a sensible measure: it will get more cash out of suspended accounts, where it is not doing any good, and into combating economic crime for the benefit of all of our constituents.
The Chair
Order. It is my fault—I started it—but let us concentrate on the Bill. I call the shadow Minister, Alex Norris.
Alex Norris
It is absolutely right that we do that, Dame Angela.
The clause and the schedule govern suspended bank accounts and, more pertinently, what happens to the money in those accounts. We should say on the record that it is right that banks are vigilant to the possibility of fraudulent activity and, when they suspect that it is taking place, that accounts are suspended. We know that that sort of regime and the culture of the industry have changed significantly in recent years. We could argue that there is a commercial disincentive to doing that, but banks clearly understand that being a trusted part of a system that does not want fraudulent activity or to have money washing around is good for everybody. That work and its creative use should be recognised, because, as the Minister says, if we held strictly to a criminal standard, there would be all sorts of reasons why that money would not be stopped. We know that good uses of terms and conditions for holding an account have been employed by the industry, which is welcome.
It is important to have a suspended account scheme in place so that those funds have somewhere to go. We support this clause and schedule. Earlier this week, I was getting very excited about the use of regulations rather than putting things in the Bill. This is a case where that is the right approach, and we look forward to good engagement while that is being developed.
Paragraph 114 of the explanatory note says:
“For the past…15 years, organisations in the financial sector (and to a lesser extent in other parts of the Anti-Money Laundering Regulated sector) have been suspending accounts and transactions where criminality is suspected. Organisations have been doing so on a private law basis taking into account their terms and conditions and threat analytics.”
Clearly, this has been going on for a while, and we are now catching up with a regime so that we can give some shape for releasing that money. It is sensible that the funds have somewhere to go, and of course we would support the purpose of that money being to go back into tackling economic crime. That is a good, virtuous loop.
I hope that the Minister will address this. We know that there has not been a scheme to release this money. Are we to understand from that paragraph of the explanatory note that there are 15 years’ worth of suspended funds just sat there? I do not see anything about that in the Bill, and I wonder whether the Minister can make it clear whether he anticipates there being anything in regulation that would mean that funds that predate the legislation would be out of scope of the scheme. I do not read anything about that in the Bill; as I said, my reading is that they are in. That gives rise to a very obvious question: how much money is there? That will be an issue of great interest for colleagues.
The beginning of schedule 5 says that financial institutions “may” take part in this scheme. I wonder whether the Minister got a sense from the consultation responses and the conversations that he has had with the industry of how widely he expects financial institutions to participate in the scheme and of whether there is a degree of risk—or any anxiety in the Home Office about there being a degree of risk—of displacement to financial institutions that are known not to take this action. Again, I suspect that most of the major players are doing this activity and therefore would wish to be part of it. I would be interested to know how widespread the Minister expects take-up to be.
It is right that there is a compensation mechanism for individuals who have their fund suspended and taken away, because mistakes can and doubtlessly will be made in this sort of scheme. Paragraph 5(1)(c) of schedule 5 governs that this ought to be part of the regulations, and we support that. I presume that that would be a liability against the scheme in its aggregate. Paragraph 5(2) states that it is possible to cap the amount of compensation money that the scheme can pay an institution. What is the reason for that? Clearly, there are institutions that are not being careful, so I presume that the measure covering the money they pay to the scheme is an incentive for them to be more careful in how they handle and freeze accounts. However, is there not a risk that shareholders or executives decide to cap the contribution at the compensation sum, so that they do not inadvertently create a liability on their balance sheet? The Minister might say that that will be covered by regulations, but there is nothing in the Bill to say that once a financial institution is part of the scheme, it must always be part of it, or that, for every account it suspends, it must send all of the money, in full, to the suspended accounts scheme.
The Government may not know the answer to that yet, but they must have thought about it because they have set up a compensation cap. If someone has had their account frozen incorrectly and they have not engaged with it for a number of years, that money is going to a suspended accounts scheme. If they then come back and say, “Hang on a minute, I’d like my money back,” it is not unreasonable—in fact, it is very reasonable—to think that they should get it back in full. The Government have chosen to cap that. That might be because they want to encourage good behaviour, but I am keen to get an explanation from the Minister. I really look forward to having, hopefully to a pounds and pence level, a sense of how much he thinks will go into this scheme when it is opened on day one.
Chris Philp
I mentioned this in my introductory remarks. It will apply to all the balances currently held, which includes all those balances accumulated over the last 15 years. The estimation is that that adds up to £200 million. We estimate that the inward flow each year will be £30 million or more. I hope that gives the shadow Minister a sense of the quantum.
We expect wide take-up across the whole financial services industry. Obviously, financial institutions are already suspending accounts, to the tune of £200 million up to date and, we think, £30 million or more a year going forward. Our engagement suggests that there will be wide take-up.
On the shadow Minister’s point about the limit to the compensation, the last words of paragraph 5(2) of schedule 5 are “in any period”, which I presume is to ensure that the scheme remains solvent. He is right to say that any compensation will be paid from inside the scheme and not subsidised by the wider taxpayer, so it will be internally financed, not creating any wider financial liability. It may be the case that, if there is one big claim, the “in any period” caveat would allow for the compensation to be paid over more than one period.
The shadow Minister also asked whether this might inadvertently create a perverse incentive for financial institutions to only make transfers up to the limit of the cap. Clearly, where that cap is set requires some thought. That is a very good question to dig into when these regulations are brought forward and debated. I will make sure that colleagues in the Home Office designing these regulations do so with that concern in mind. When we bring the regulations back, the shadow Minister or his colleagues can have a look at how that is designed. He has made a good point, and we will make sure it is reflected in the way in which the regulations are designed in due course.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Schedule 5 agreed to.
Clause 34
Electronic monitoring requirements
Chris Philp
I beg to move amendment 84, in clause 34, page 27, line 16, at end insert “and Northern Ireland”.
This amendment and amendments 85 to 88 provide that a serious crime prevention order made in Northern Ireland may include electronic monitoring requirements.
The Chair
With this, it will be convenient to discuss the following:
Government amendments 85 to 89.
Clause stand part.
Government amendments 90 to 108, 110 to 113, 115, 118, and 120 to 132.
Chris Philp
I have about 10 minutes on each amendment, if that is all right. [Laughter.] No?
Chris Philp
I would like to remain popular with colleagues, so I will not do that.
The Government amendments relate to clauses 34 to 37, which seek to strengthen the operation of serious crime prevention orders. SCPOs are a powerful tool for preventing and disrupting the activities of the highest-harm criminals involved in serious crime. However, they are not currently being used to maximum effect and their use is significantly lower than was when they were introduced in the Serious Crime Act 2007.
As drafted, clauses 34 to 37 apply to England and Wales only. Having consulted the Northern Ireland Department of Justice, we tabled the amendments to extend the application of the clauses to Northern Ireland, which will ensure parity between England and Wales and Northern Ireland when it comes to SCPOs. Scotland will keep the existing regime, as set out in the 2007 Act, whereas Northern Ireland will benefit from the various provisions of clauses 34 to 37. In particular, I draw the Committee’s attention to the express power for courts to impose electronic monitoring; the opportunity for a wider range of frontline agencies to apply directly to the High Court for an SCPO; the introduction of a prescribed set of notification requirements for these orders; and the enabling of the Crown court in Northern Ireland to make an SCPO on acquittal where the two-limb test is met.
Ideally, we would apply these measures on a UK-wide basis. However, at the request of the Scottish Government, they will not be extended to Scotland at this time. I think it would be better if they were, but on this occasion we will respect the request made by the Scottish Government. However, we have considered how we can manage the differences in regime between Scotland and the rest of the UK once the measures come into force.
Scotland will, of course, continue to benefit from the existing SCPO regime under the 2007 Act, and in instances where an SCPO made in England, Wales or Northern Ireland is breached, the offender will not be able simply to flee to Scotland. The offence of breaching an order, as set out in the 2007 Act, remains a UK-wide offence, so enforcement against breach continues on a UK-wide basis. The exception to that will be in breaches of the prescribed notification requirements in clause 36, as the offence of not providing that information will apply to England, Wales and Northern Ireland but not to Scotland.
That is the substance of the amendments. As for the substance of clause 34 itself—I think that we will talk about clauses 35, 36 and 37 separately—it provides an express power for the courts to impose an electronic monitoring requirement as part of an SCPO. Tagging the subject will be used to monitor their compliance with various relevant terms, such as an exclusion zone or a curfew, and that will make the orders more effective. They are strengthened in other ways too, but those ways are set out in clauses 35 to 37, which we will talk about later. Clause 34 provides for those electronic monitoring or tagging obligations to be imposed as part of the SCPO.
Alex Cunningham
I am sure that the Government Whip, in particular, will be pleased to know that I am going to make one speech to cover clauses 34 to 37, and it is relatively brief.
Clauses 34 to 37 make several amendments to the Serious Crime Act 2007, in relation to serious crime prevention orders, that will apply to England and Wales only.
The Chair
Order. We are debating clause 34. I know that the clauses are connected, but there will be separate debates on clauses 35, 36 and 37. I wonder whether the hon. Gentleman could concentrate on clause 34 and all the amendments to it. I will call him again at the appropriate time if he wants to make points specific to clauses 35, 36 or 37.
Alex Cunningham
I will be guided by what you say, Dame Angela.
We support the changes proposed in relation to clause 34 on electronic monitoring requirements. We recognise, as the Minister did, that SCPOs can be a powerful tool for disrupting the activities of the highest-harm serious and organised criminals. The orders are not currently being used to maximum effect and clause 34 amends the 2007 Act to strengthen and improve their functioning. Applications to the High Court have been significantly lower than anticipated since the 2007 Act was passed. The idea is to streamline the process for the police and other law enforcement agencies, place restrictions on offenders or suspected offenders, and stop them from participating in further crime.
As I have said before—it is particularly pertinent to clause 34—the Government have recognised the Bill’s many weaknesses, evidenced by the many amendments they have tabled. In fact, I do not recall, having scrutinised half a dozen justice Bills, seeing seen so many amendments to one clause. Even with the amendments, the Bill will not bring about the changes necessary in the light of the crisis in our probation system, which will have a major role to play in the work created by this clause. I recognise what is, in fact, the replacement of funding to the probation service outlined by the Under-Secretary of State for Justice, the hon. Member for Newbury. I acknowledge that we also now have additional staff—4,000 people. That is very good news, but the probation service is still playing catch-up, and the people recruited are of course very inexperienced in comparison with those who have left the service.
It was not so many years ago that the then Justice Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling), implemented a disastrous privatisation of the service, and it has been under a huge strain ever since. Even with the partial reversal of those reforms in 2021 with the partial renationalisation of probation, the service is still facing huge challenges and pressures due to a host of issues. That impacts very much on the work introduced by the clause.
I will quote directly from a report from the chief inspectorate that contains important context. It states:
“We’ve found chronic staff shortages in almost every area we’ve visited and poor levels of management supervision – as well as large gaps in whether the needs of people on probation that might have driven their past offending are being met.
It swiftly became clear that the service was thousands of officers short of what was necessary”—
I acknowledge that more have been more recruited—
“to deliver manageable workloads under the new target operating model for the re-unified service…68 per cent of probation officers and 62 per cent of PSOs rated their caseloads as being… ‘unmanageable’”.
Against that backdrop, does the Minister expect these changes to fulfil their statedobjectives?
Furthermore, the outgoing chief inspector of probation, Justin Russell, reported in September that
“chronic staffing shortages at every grade…have led to what staff report perceive to be unmanageable workloads”.
The Government frequently boast about the funding put into the recruitment of staff and having beaten their target of recruiting 1,000 trainee probation officers. However, that should not distract from the huge problems around retention and burnout in the service. The probation system’s own case load management tool shows that probation officers are working at a case load of between 140% and 180% of their capacity. It should be 90% 95%, so half the current load, for staff to do their job effectively.
In the year to March 2023, 2,098 staff left the probation service, which is an increase of 10% on the year before. Two thirds of those had five or more years’ experience; 28% of probation officers who left in 2023 had been in service for less than four years, so something clearly needs to be done to recruit and retain staff; and 19% of trainee probation officers recruited in 2021 have left the service.
The staffing shortages and retention issues put a strain on those doing more work than they can manage. In 2022, 47,490 working days were lost due to stress among probation staff; the average working-day loss per staff member due to stress was two days. We know that that has an impact on public safety. The recent report by Justin Russell warned about the impact that cuts to probation were having and said that there was “consistently weak” public protection. That followed a similar report in 2020.
In the cases of Damien Bendall and Jordan McSweeney, we saw the impact of the poor conditions facing probation. In both cases, incorrect risk assessments meant that junior probation officers were dealing with offenders who should have been classed as a high risk. The Government’s impact assessment states:
“There is insufficient data with which to monetise the benefits of this measure”.
Can the Minister address whether data collection in this department could do with improvement?
The impact assessment for the Sentencing Bill, which is being scrutinised in parallel to this Bill, shows that the case load for probation will increase by between 1,700 and 6,800. That will cost around £3 million for probation, with a running cost of between £3 million and £4 million a year—a good measure, with real costs and issues behind it. I look forward to the Minister’s response.
Chris Philp
Many of the questions concerning the probation service are for the Ministry of Justice, not the Home Office, but I know that the Ministry of Justice is investing more resources. Now that the probation service has been effectively renationalised, there is a lot more direct control over its activities and some of the quality problems that arose a few years ago. It is worth saying that it is not the probation service that manages SCPOs, but the National Crime Agency, but I wanted to offer the hon. Gentleman reassurance about the probation service.
The National Crime Agency supports these measures. In last two years, between 2021-22 and the current financial year, 2023-24, there has been a 21% increase in its budget from £711 million to £860 million, giving it quite a lot of bandwidth to monitor these orders. The issue, really, is getting more orders made, but the monitoring of them is also important, as the shadow Minister says.
Amendment 84 agreed to.
Amendments made: 85, in clause 34, page 27, line 18, after “Wales” insert “or Northern Ireland”.
See the explanatory statement to amendment 84.
Amendment 86, in clause 34, page 27, line 28, at end insert “—
(a) where the order is made in England and Wales,”.
This amendment is consequential on amendment 87.
Amendment 87, in clause 34, page 27, line 30, at end insert—
“(b) where the order is made in Northern Ireland, must be of a description specified in an order made by the Department of Justice under Article 40(3) of the Criminal Justice (Northern Ireland) Order 2008 (N.I. 1).”
This amendment provides that the person responsible for conducting electronic monitoring must be a person specified by the Department of Justice under Article 40(3) of the Criminal Justice (Northern Ireland) Order 2008 (N.I. 1).
Amendment 88, in clause 34, page 28, line 23, leave out “The court” and insert
“A court in England and Wales”.
This amendment sets out the requirements to be satisfied for a court in England and Wales to impose an electronic monitoring requirement. It is limited to England and Wales because electronic monitoring is available throughout Northern Ireland.
Amendment 89, in clause 34, page 28, line 29, leave out “In” and insert “For the purposes of”.—(Chris Philp.)
This amendment clarifies that the definitions in new section 5C(5) are relevant to subsection (4)(a) (but the defined terms are not all set out in subsection (4)(a)).
Clause 34, as amended, ordered to stand part of the Bill.
Clause 35
Applicants for an order: England and Wales
Amendments made: 90, in clause 35, page 30, line 16, leave out “the appropriate court” and insert “a court or sheriff”.
This amendment restates the position under sections 8 of the Serious Crime Act 2007 in relation to applications for serious crime prevention orders to the High Court of Justiciary or the sheriff in Scotland under section 22A of that Act.
Amendment 91, in clause 35, page 30, leave out lines 32 and 33 and insert—
“(ii) the Director of the Serious Fraud Office,
(iii) the Director General of the National Crime Agency,
(iv) the Commissioners for His Majesty’s Revenue and Customs,
(v) the chief officer of police, or
(vi) the Chief Constable of the Ministry of Defence Police, and”.
This amendment provides that the persons listed in the amendment may apply to the High Court in Northern Ireland for a serious crime prevention order.
Amendment 92, in clause 35, page 30, line 34, leave out from “by” to end of line 39 and insert
“a person listed in paragraph (a)(iii) to (vi), only if the person has consulted the Director of Public Prosecutions for Northern Ireland.”
This amendment omits the requirement that a chief officer of police in Northern Ireland may only apply for a serious crime prevention order if it is terrorism-related. It also provides that each of the applicants listed in paragraph (a)(iii) to (vi) must consult the Director of Public Prosecutions for Northern Ireland before making an application.
Amendment 93, in clause 35, page 30, line 39, at end insert—
“(1D) A serious crime prevention order may be made by the Crown Court in Northern Ireland—
(a) only on an application by—
(i) the Director of Public Prosecutions for Northern Ireland,
(ii) the Director of the Serious Fraud Office, or
(iii) a chief officer of police, and
(b) in the case of an application by a chief officer of police, only if—
(i) it is an application for an order under section 19 or19A that is terrorism-related (see section 8A), and
(ii) the chief officer has consulted the Director of Public Prosecutions for Northern Ireland.”
This amendment makes provision for the Director of the Serious Fraud Office to apply to the Crown Court in Northern Ireland for a serious crime prevention order.
Amendment 94, in clause 35, page 30, leave out lines 41 to 44 and insert—
“(a) in paragraph (a)—
(i) omit sub-paragraphs (i) and (iii);
(ii) after sub-paragraph (iv) insert—
“(v) in any other case, the person who applied for the order;”;
(b) for paragraph (b) substitute—
“(b) in relation to a serious crime prevention order in Northern Ireland, the person who applied for the order.””
This amendment makes provision for the meaning of “relevant applicant authority” for serious crime prevention orders in Northern Ireland, and is consequential on amendment 91.
Amendment 95, in clause 35, page 31, line 17, at end insert—
“(4A) In section 28 (power to wind up companies: Northern Ireland)—
(a) in subsection (1)—
(i) in the words before paragraph (a), after “Northern Ireland” insert “or the Director of the Serious Fraud Office”;
(ii) in paragraph (b), for “of Public Prosecutions for Northern Ireland” substitute “concerned”;
(b) for subsection (1A) substitute—
“(1A) A person mentioned in section 8(1C)(a)(iii) to (vi) may present a petition to the court for the winding up of a company, partnership or relevant body if—
(a) the company, partnership or relevant body has been convicted of an offence under section 25 in relation to a serious crime prevention order made on an application by the person, and
(b) the person considers that it would be in the public interest for the company, partnership or (as the case may be) relevant body to be wound up.”;
(c) in subsection (3), for the words from “the Director of Public Prosecutions for Northern Ireland” to the end substitute “a person who is authorised to present a petition in accordance with subsection (1) or (1A).”
This amendment makes provision for each of the new applicants for a serious crime prevention order in Northern Ireland to be able to present a petition to the court for the winding up of a body which has been convicted of an offence in relation to an order made on the application of the applicant. It is consequential on amendment 91.
Amendment 96, in clause 35, page 31, line 18, at end insert—
“(za) in paragraph 12—
(i) in paragraphs (a) and (b), after “England and Wales” insert “or Northern Ireland”;
(ii) in paragraph (c), after “section 27” insert “or 28”;”.
This amendment extends the functions of the Director of the Serious Fraud Office in relation to serious crime prevention orders in Northern Ireland, and is consequential on amendment 91.
Amendment 97, in clause 35, page 31, line 24, after “England and Wales” insert “or Northern Ireland”.
This amendment and amendments 98 and 99 extend the functions of the Director General of the National Crime Agency in relation to serious crime prevention orders in Northern Ireland, and are consequential on amendment 91.
Amendment 98, in clause 35, page 31, line 29, at end insert “or Northern Ireland”.
See the explanatory statement to amendment 97.
Amendment 99, in clause 35, page 31, line 33, after “section 27” insert “or 28”.
See the explanatory statement to amendment 97.
Amendment 100, in clause 35, page 31, line 43, after “England and Wales” insert “or Northern Ireland”.
This amendment and amendments 101 and 102 extend the functions of the Commissioners for His Majesty’s Revenue and Customs in relation to serious crime prevention orders in Northern Ireland, and are consequential on amendment 91.
Amendment 101, in clause 35, page 32, line 4, at end insert “or Northern Ireland”.
See the explanatory statement to amendment 100.
Amendment 102, in clause 35, page 32, line 8, after “section 27” insert “or 28”.
See the explanatory statement to amendment 100.
Amendment 103, in clause 35, page 33, line 7, after “England and Wales” insert “or Northern Ireland”.
This amendment and amendments 104 to 105 extend the functions of the Chief Constable of the Ministry of Defence Police in relation to serious crime prevention orders in Northern Ireland, and are consequential on amendment 91.
Amendment 104, in clause 35, page 33, line 12, at end insert “or Northern Ireland”.
See the explanatory statement to amendment 103.
Amendment 105, in clause 35, page 33, line 15, at end insert “or Northern Ireland”.
See the explanatory statement to amendment 103.
Amendment 106, in clause 35, page 33, line 20, after “England and Wales” insert “or Northern Ireland”.—(Chris Philp.)
See the explanatory statement to amendment 103.
Chris Philp
The clause amends the Serious Crime Act 2007 to provide additional agencies with the power to apply directly to the High Court for a SCPO. The High Court can already make an SCPO upon application by the Crown Prosecution Service and the Serious Fraud Office, as well as by the police in terrorism cases. However, as we have heard already, these orders are not being used to maximum effect. In the 10 years between 2011 and 2021, only two applications were made to the High Court for an SCPO in the absence of a conviction, of which only one was successful.
The clause extends the power to make applications to the High Court for an SCPO to other agencies, particularly the National Crime Agency, His Majesty’s Revenue and Customs, the police in all cases, the British Transport police and the Ministry of Defence police, so that many more law enforcement agencies can use it. The clause also sets out who is authorised to make those applications, and it streamlines the process for doing so, in the hope that that will encourage more applications. In many cases where criminal proceedings cannot be pursued, those agencies will be best placed to lead the process of applying for an SCPO as they will have in-depth knowledge of the case and subject matter expertise.
The CPS is responsible for evaluating the merits of an application to ensure that an SCPO is not being used inappropriately as an alternative to prosecution, and it can intervene if it thinks prosecution would be more appropriate. In recognition of this role, the agencies being given the right to apply directly to the High Court will be required to consult the CPS before making an application. It will be for the law enforcement agency that applied for the SCPO to monitor and enforce it once it is imposed on the individual concerned.
The clause also extends to those additional agencies the power to submit a petition to the court for the winding-up of a company or partnership. A petition can be submitted only if the body has failed to comply with the terms of the SCPO and it is in the public interest for the body to be wound up.
In summary, we hope that extending the range of law enforcement agencies that can apply for an SCPO will, when combined with the other streamlining measures, help to encourage more applications. I commend the clause to the Committee.
Question put and agreed to.
Clause 35, as amended, accordingly ordered to stand part of the Bill.
Clause 36
Notification Requirements
Amendments made: 107, in clause 36, page 33, line 35, at end insert “and Northern Ireland”.
This amendment and amendments 108 and 110 to 113 make provision for notification requirements by persons other than individuals who are subject to a serious crime prevention order in Northern Ireland.
Amendment 108, in clause 36, page 33, line 38, after “Wales” insert “or Northern Ireland”.—(Chris Philp.)
See the explanatory statement for amendment 107.
Chris Philp
I beg to move amendment 109, in clause 36, page 33, line 39, leave out from second “the” to end of line 40 and insert
“first day on which any of its provisions comes into force—”.
This amendment adjusts the time period within which a notification under section 15A(1) must be made.
The Chair
With this it will be convenient to discuss the following:
Government amendments 114 and 116.
Amendment 69, in clause 36, page 35, line 2, at end insert
“or, where the person is in custody, within three days of the day on which the person is released from custody,”.
This amendment would mean that, where a person in custody is made subject to a serious crime prevention order, the three day time period within which they must notify the police of notifiable information does not start until the day they are released from custody.
Government amendments 117 and 119.
Clause stand part.
Chris Philp
The clause amends the Serious Crime Act 2007 to provide that all those subject to an SCPO are required to provide the police with specified personal data as standard. It includes a set of appropriate requirements for bodies corporate. All those requirements can currently be attached to an SCPO at the discretion of the court, on a case-by-case basis, but the clause will place the same set of notification requirements on all individuals without the need for case-by-case applications.
Most respondents to the public consultation agreed with this proposal. Many highlighted that standardising notification requirements will create consistency and save the court some time. The notifiable information includes information such as the person’s address, employment details, telephone numbers, email address and some financial information.
Government amendments 117 and 119 will add to the list of notification requirements. The clause already includes things such as usernames and display names for social media, because monitoring these individuals’ activity online is very important. Amendment 117 adds to that list a requirement so that, in addition to usernames for social media, the relevant individuals must notify the police of any names used to access, or that identify them on, an online video-gaming service with messaging functionality. Law enforcement agencies report that such gaming websites are frequently used by individuals to communicate with other people, including in an attempt to circumvent restrictions on communications detailed in their order, so that they may re-establish their criminal enterprises.
Tightening the legislation will remove that loophole.
Amendments 109 and 116 provide that the time within which an individual made subject to an SCPO must provide the relevant information to the police is three days from the day the order comes into force—not three days from the day the order is made, as drafted. Although some orders come into force on the day they are made, others do not until, for example, the individual has served their prison sentence. The amendments allow for those different circumstances and will ensure that individuals do not inadvertently fall foul of the offence of failing to provide the required information when that would not be the Government’s intention or be reasonable. The amendments have the same effect as amendment 69, tabled by the hon. Member for Stockton North—I apologise that the Government have adopted the measure, if that is the right word.
Chris Philp
There we are. We have enthusiastically embraced the hon. Gentleman’s idea. I give him and his colleagues full credit for conceiving it. I acknowledge that the Government amendment does the same thing as his amendment 69 would do, for which I thank and congratulate him.
Finally, Government amendment 114 is a drafting amendment—it might even be a technical drafting amendment—to ensure that the definition of a “relevant body” in proposed new section 15A of the Serious Crime Act 2007 carries through to the proposed new section 15C. I am sure that even the shadow Minister will agree that that is fairly technical in nature.
Alex Cunningham
This has been a long time coming. The Minister and I have looked across at each other many times in this room over the past few years, and I think this is the first time he has accepted that we have actually got it right. I am obliged to him for that. This set of measures improves the efficiency of our court system, and anything that we can do to enable that is critical. Adding the information to the system automatically will make it much easier in future to ensure that those people are properly monitored and can be contacted wherever they are. We are happy to support the clause.
Amendment 109 agreed to.
Amendments made: 110, in clause 36, page 34, leave out lines 4 to 6 and insert—
“(3) A person who is subject to a serious crime prevention order made by a court in England and Wales commits an offence under the law of England and Wales if, without reasonable excuse, the person fails to comply with a requirement imposed by subsection (1) as it applies by virtue of the order.
(3A) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if, without reasonable excuse, the person fails to comply with a requirement imposed by subsection (1) as it applies by virtue of the order.”
This amendment clarifies the jurisdiction in which a person commits an offence for failure to comply with a notification requirement under section 15A.
Amendment 111, in clause 36, page 34, line 7, leave out “on summary conviction to a fine” and insert “—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Northern Ireland, to a fine not exceeding level 5 on the standard scale.”
This amendment makes provision for the penalties to apply in Northern Ireland for a failure to comply with the notification requirements set out in section 15A.
Amendment 112, in clause 36, page 34, leave out lines 22 to 24 and insert—
“(3) A person who is subject to a serious crime prevention order made by a court in England and Wales commits an offence under the law of England and Wales if, without reasonable excuse, the person fails to comply with a requirement imposed by subsection (2) as it applies by virtue of the order.
(4) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if, without reasonable excuse, the person fails to comply with a requirement imposed by subsection (2) as it applies by virtue of the order.”
This amendment clarifies the jurisdiction in which a person commits an offence for failure to comply with a notification requirement imposed by section 15B.
Amendment 113, in clause 36, page 34, line 25, leave out “on summary conviction to a fine” and insert “—
(a) on summary conviction in England and Wales, to a fine;
(b) on summary conviction in Northern Ireland, to a fine not exceeding level 5 on the standard scale.”
This amendment makes provision for the penalties to apply in Northern Ireland for a failure to comply with the notification requirements set out in section 15B.
Amendment 114, in clause 36, page 34, line 36, at end insert—
“(3) In this section “relevant body” has the same meaning as in section 15A.”
This amendment inserts a definition of “relevant body” into section 15C.
Amendment 115, in clause 36, page 35, line 1, after “Wales” insert “or Northern Ireland”.
This amendment and amendments 118 and 120 to 123 make provision for notification requirements by individuals who are subject to a serious crime prevention order in Northern Ireland.
Amendment 116, in clause 36, page 35, line 2, leave out from “with” to end and insert “the first day on which any of its provisions comes into force,”.
This amendment adjusts the time period during which a notification under section 15D(1) must be made.
Amendment 117, in clause 36, page 35, line 13, at end insert—
“(da) any name—
(i) which the person uses to access a video game that is a user-to-user service or that is available as part of a user-to-user service, or
(ii) the function of which is to identify the person as the user of such a game;”.
This amendment requires the subject of a serious crime prevention order to notify the police of any name used to access a video game which is a user-to-user service or which identify the person as the user of such a game.
Amendment 118, in clause 36, page 35, leave out lines 24 to 36.
This amendment and amendment 120 clarify the jurisdiction in which a person commits an offence for failure to comply with a notification requirement under section 15D and make provision for the penalties to apply on conviction in Northern Ireland.
Amendment 119, in clause 36, page 36, line 12, at end insert—
“(e) ‘user-to-user service’ has the meaning given by section 3 of the Online Safety Act 2023.”
This amendment defines “user-to-user service” for the purpose of amendment 117.
Amendment 120, in clause 36, page 36, line 12, at end insert—
“(6) A person who is subject to a serious crime prevention order made by a court in England and Wales commits an offence under the law of England and Wales if the person—
(a) fails, without reasonable excuse, to comply with a requirement imposed by subsection (1) as it applies by virtue of the order;
(b) notifies the police, in purported compliance with such a requirement, of any information which the person knows to be false.
(7) A person guilty of an offence under subsection (6) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.
(8) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if the person—
(a) fails, without reasonable excuse, to comply with a requirement imposed by subsection (1) as it applies by virtue of the order;
(b) notifies the police, in purported compliance with such a requirement, of any information which the person knows to be false.
(9) A person guilty of an offence under subsection (8) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.”
See the explanatory statement to amendment 118.
Amendment 121, in clause 36, page 36, line 18, after “person” insert—
“who is subject to a serious crime prevention order made by a court in England and Wales”.
This amendment and amendments 122 and 123 clarify the jurisdiction in which a person commits an offence for failure to comply with section 15E(1).
Amendment 122, in clause 36, page 36, line 21, at end insert—
“as it applies by virtue of the order”.
See the explanatory statement to amendment 121.
Amendment 123, in clause 36, page 36, line 30, at end insert—
“(3A) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if the person—
(a) fails, without reasonable excuse, to comply with a requirement imposed by subsection (1) as it applies by virtue of the order;
(b) notifies the police, in purported compliance with such a requirement, of any information which the person knows to be false.
(3B) A person guilty of an offence under subsection (3A) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.”
See the explanatory statement to amendment 121.
Amendment 124, in clause 36, page 37, leave out lines 10 and 11 and insert—
“(3) A person who is subject to a serious crime prevention order made by a court in England and Wales commits an offence under the law of England and Wales if the person fails, without reasonable excuse, to comply with subsection (1) in relation to the notification.”
This amendment and amendment 125 make provision for a person to commit an offence under section 15G(1) under the law of Northern Ireland.
Amendment 125, in clause 36, page 37, line 17, at end insert—
“(5) A person who is subject to a serious crime prevention order made by a court in Northern Ireland commits an offence under the law of Northern Ireland if the person fails, without reasonable excuse, to comply with subsection (1) in relation to the notification.
(6) A person guilty of an offence under subsection (5) is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.”
See the explanatory statement to amendment 124.
Amendment 126, in clause 36, page 37, line 20, after “Wales” insert “or Northern Ireland”.—(Chris Philp.)
This amendment provides for a court in Northern Ireland to make provision in a serious crime prevention order about how notifications under section 15A to 15E are to be made.
Clause 36, as amended, ordered to stand part of the Bill.
Clause 37
Orders by Crown Court on acquittal or when allowing an appeal
Amendments made: 127, in clause 37, page 38, leave out lines 19 to 21 and insert—
“(2) A court that makes an order by virtue of subsection (1) in the case of a person who is already the subject of a serious crime prevention order in England and Wales must discharge the existing order.
(2A) The Crown Court in Northern Ireland may make an order under this section in relation to a person who is acquitted of an offence by or before the court, or where the court allows a person’s appeal against a conviction for an offence, if—
(a) the court is satisfied that the person has been involved in serious crime (whether in Northern Ireland or elsewhere), and
(b) the court has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in Northern Ireland.
(2B) A court that makes an order by virtue of subsection (2A) in the case of a person who is already the subject of a serious crime prevention order in Northern Ireland must discharge the existing order.”
This amendment and amendment 128 make provision for the Crown Court in Northern Ireland to make serious crime prevention orders on acquittal or when allowing an appeal.
Amendment 128, in clause 37, page 38, line 27, at end insert
“or (as the case may be) Northern Ireland”.
See the explanatory statement to amendment 127.
Amendment 129, in clause 37, page 38, line 38, at end insert—
‘(5A) In section 3(4), for “section 1(2)(a)” substitute “sections 1(2)(a) and 19A(2A)(a)”.’
This amendment is consequential on amendments 127 and 128.
Amendment 130, in clause 37, page 39, line 4, after “19A(1)” insert “and (2A)”.—(Chris Philp.)
This amendment is consequential on amendments 127 and 128.
Question proposed, That the clause, as amended, stand part of the Bill.
Chris Philp
Clause 37 also amends the Serious Crime Act 2007 to provide the Crown court the power to impose an SCPO on a person who has been acquitted or when allowing an appeal. The High Court already has the power to impose an SCPO in lieu of conviction, provided that it meets the two-limb test set out in the 2007 Act: the court must be satisfied that a person has been involved in a serious crime, presumably on the balance of probability, and it must have reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime. The serious offences are defined in schedule 1 to the 2007 Act, and they include slavery, drug trafficking, firearms offences, terrorism, armed robbery, people trafficking and economic crime, including fraud, money laundering, sanctions evasion and offences in relation to the public revenue.
Clause 37 sets out that the Crown court can impose an SCPO on acquittal or when allowing appeal if the same test is met. The Government believe that the Crown court, on application from the Crown Prosecution Service or the Serious Fraud Office, is best placed to decide whether to make an order against a person whom it has just acquitted, given that the court will have heard all the evidence relating to the person’s conduct and can ensure that the two-limb test has been met.
There are reasons why a person may be acquitted of a particular offence where the standard of proof is high—beyond reasonable doubt—but where an SCPO may still be appropriate: for example, when the evidence may not satisfy the court beyond reasonable doubt that a serious offence has been committed, but there may be sufficient evidence to satisfy the court that the person has been involved in serious crime. The court could then decide that imposing an SCPO would protect the public.
There is precedent for this approach: domestic abuse protection orders under the Domestic Abuse Act 2021 and restraining orders under the Protection from Harassment Act 1997 also allow for court orders to be made against individuals on acquittal or when allowing an appeal. This clause will streamline the process and help ensure that SCPOs can be used more frequently where appropriate.
Alex Cunningham
The Minister rightly said that, when somebody is acquitted but the court is considering the imposition of an SCPO, the grounds on which the order is made must be very robust and they must pass the necessary tests. How do we ensure that that happens? Given that these people have been acquitted of an offence, will there be any report to Ministers or to Parliament on how the clause is working? It is significant if a person is declared innocent but is still subject to a control order. I would welcome clarity on whether we would have feedback on that.
Chris Philp
The shadow Minister asks how he can be sure that these orders will be used reasonably. The answer to that lies in the two-limb test, which was set out in the 2007 Act. I guess it must have been either the Blair Government or the Brown Government who set out the test. It is that the court—now it will obviously be the Crown court as well as, previously, the High Court—is satisfied that a person has been involved in serious crime and that it has reasonable grounds to believe that the order will protect the public. The protection really is that the court must be satisfied of those two things. All we are really doing is extending to the Crown court the ability that the High Court has had already in applying those tests, which have been around for the past 17 years.
Jess Phillips
I absolutely do not expect the right hon. Gentleman to have right now the data that I am about to ask for; that would be unreasonable. He raised the case of DVPOs, which are not in practice being used quite yet; it is still just a pilot up in the north-west. I wonder how many cases we have seen where this has happened under the restraining order that he outlined. I just want to feel confident that courts will actually do this, because I can envisage thousands of cases where it would absolutely be the right thing to be happening, but I have personally never seen it in cases of acquittal. I just wonder whether some sort of data—I do not expect it now—could be provided to the Committee about how it has worked with regard to restraining orders.
Chris Philp
I thank the hon. Member for her question. She has anticipated the fact that that data is not immediately at my fingertips, but I would be happy to provide her, by way of follow-up correspondence, with the data that she has just requested.
In relation to monitoring, which I think the shadow Minister asked about, there will be post-legislative review, three to five years after Royal Assent, that will check up on progress and how this is being used in practice. We do want to ensure that it is properly used, in the sense that it is applied to all the cases where it could protect the public. The hon. Member for Birmingham, Yardley is, I think, right to highlight the risk that it might not be used as frequently as it should be, so we need to ensure that the Crown Prosecution Service, the barristers who are presenting these cases before the court, and the court itself—Crown court judges—are fully informed about this power once we pass it.
Of course, being able to issue an SCPO at the point of acquittal—there and then, on the spot—is much easier than having to make a separate application to the High Court, which I can imagine might get forgotten about, so this should result in a much larger number of SCPOs: the judge can do it on the spot, on acquittal, having just heard all the evidence, and without the need for a whole separate application and process in the High Court to be gone through. But we should definitely monitor the situation to ensure that the power is actually used. I think that probably answers the points that have been raised.
Question put and agreed to.
Clause 37, as amended, accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Scott Mann.)