Serious Crime Bill [HL]

Lord Hope of Craighead Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, this is not an easy Bill to read, as I think the noble Baroness, Lady Hamwee, was indicating at the beginning of her speech, as so much of it is concerned with updating existing legislation in those fields with which it deals. Updating is really the thread that runs right through the Bill, from start to finish. In itself, I suggest that is to be welcomed. In each of those fields, experience has shown us that there are gaps that need to be filled. We know that where there are gaps in legislation of this kind, they will be exploited. Where there is room for evasion, it will be exploited, too. All the areas of law with which the Bill is concerned are vulnerable to being undermined in this way or are lacking in the power that comes with the increased sentences to which the Minister referred.

Serious and organised criminals—those who deal in illegal drugs, attack our computer systems or are engaged in paedophilia or terrorism—are not going to go away. Their presence in our community is a constant threat. We need to keep our lines of attack and defences up to date, so it is not surprising that the statutes with which this Bill deals are in need of amendment, although some were enacted not all that long ago, and that new measures are required in support of those we already have. Speaking broadly, the Bill deserves our warm support.

I am especially grateful to the Minister for the information pack that we were given the other day to help us through these provisions. It contains fact sheets and Keeling schedules, which are of course extremely useful, but they do not tell one everything. I was troubled by the fact that on my first reading, it seemed that the provisions in Clause 3(3)(b) and Clause 24(3), amending Sections 33 and 183 of POCA, which deal with appeals against the making of confiscation orders, provided appellants with an unqualified right of appeal to the Supreme Court. Everyone else has to go through a permission process before an appeal can be heard there and, as a result, appeals in the Supreme Court are available only if a point of general importance is involved and the decision appealed against raises a point that ought to be considered by the Supreme Court. On my first reading of this part of the Bill, I asked myself: why should the appeals in this field be any different?

The answer was provided by two of the Supreme Court’s judicial assistants but they did not find it in the Keeling schedules because it is to be found in delegated legislation set out in two orders made by the Secretary of State in 2003, details of which I need not give. However, the result is that the appeals referred to in these clauses are subject to the ordinary rule, although that is not apparent on first reading. I am greatly relieved that that is so and I hope that my researchers have provided me with the correct answer.

Some of the provisions, although at first sight well meaning, may require careful scrutiny. One of them is Clause 41 in Part 3, to which the noble Baroness referred and the noble Lord, Lord Richard, drew our attention. In response to what the noble Lord said, it seems to me that the way in which the issue of organised crime is being approached in Clause 41 is, in principle, the right one. He mentioned the alternative of using the law of conspiracy to deal with matters of this kind. When I was serving as a Lord of Appeal in Ordinary I was involved in a case where a conspiracy charge was used in connection with money-laundering. In the days when it was used, the rules for the framing of counts in indictment were subject to what is called the duplicity rule. It was very complicated and I shall not trouble to explain it but the point was that conspiracy was used to get around the difficulty. When the appeal reached us, we had to quash the conviction because the evidence necessary to prove conspiracy was not there.

It is quite a complicated area of law. Although, as a Scots lawyer, I hesitate to make suggestions for the English, I think conspiracy should be avoided if it is possible to do so. The great advantage of Clause 41 is that it goes straight to the heart of what it is seeking to attack and describes it in simple language. To that extent, I welcome Clause 41 and hope that the noble Lord feels able to defend it. As the noble Baroness, Lady Hamwee, indicated, there is concern that some well meaning, law-abiding professionals might be brought within the reach of the clause when what they are doing is providing advice and intelligence to the authorities. They might feel deterred from doing this—from getting too close to the people that Clause 41 is talking about—in case they become drawn into some kind of criminal prosecution. It is all about how the offence is defined in Clause 41(2) and the way the defence in Clause 41(8) is worded. It is not necessary to say more about this, but it is a clause that will require detailed examination in Committee.

I welcome the opportunity that the provision in Clause 62—particularly Clause 62(2), which deals with the meaning of “unnecessary suffering”—gives us to debate the issue. I say that against the background of a case of domestic violence, Yemshaw, in which my noble and learned friend Lord Brown of Eaton-under-Heywood and I were involved some years ago. In that case, the House was asked to consider whether the phrase “domestic violence” in the Housing Act 1996 to describe circumstances in which it would not be reasonable to expect a person to live with someone else in the same accommodation, required there to be, and be limited to, some form of physical contact. There had been two Court of Appeal decisions which said precisely that. Although the noble and learned Lord, Lord Brown, hesitated somewhat, we were persuaded in Yemshaw that, because of the way in which people look at these matters, it would be unreasonable to confine domestic violence to physical contact. So many cases of that kind are the product of intimidation and psychological abuse, which is equally untenable and makes it equally difficult for someone to live with someone else. Psychological harm was, therefore, said to be included within “domestic violence”.

The concern is that, if the issue of unnecessary suffering, as defined in Section 1 of the Children and Young Persons Act 1933, were to come to court against the background of Yemshaw, the court might feel that it should extend it to psychological as well as physical damage. There will be differing views in the House as to whether this would be desirable. My only point is to welcome the opportunity that we shall have to debate it. I mention Yemshaw because it indicates that this is an area of law that others are working on, as well as us. It is eminently desirable that Parliament should clear this up, rather than have the matter debated, with perhaps less range of discussion, in the courts. That is to be welcomed, whatever the end result may be.

There are one or two other matters that I should like to mention, particularly in relation to Scotland. This is the result of studying the Bill with the Scottish jurisdiction in mind. I have given the Minister notice and I hope he will at least be able to give me some indication in his reply as to what the answer would be. The first relates to Clause 63, which deals with the paedophile manual. The curious feature of that provision is that, according to the wording of the clause, it extends only to England, Wales and Northern Ireland, and not to Scotland. That is confirmed by Clause 69(2)(c), which deals with the extent of the Bill and makes it absolutely plain that it does not extend to Scotland. I take it that it is no accident that it is drafted in this way.

That seems at first sight to give rise to a very strange situation. We all live on the same island, as we keep hearing in the debates about the referendum. You could imagine that if someone who lived in Carlisle or Berwick-upon-Tweed wished to get access to one of these manuals, he would have to drive only a short distance to Gretna Green or Eyemouth and find someone who was in possession of one. He could consult it and then go back to Carlisle or Berwick-upon-Tweed and do whatever the manual had taught him to do. It is very puzzling that this does not extend to Scotland. So far as my researches go, there is no equivalent provision, at least in these terms; I discussed this question this morning with a criminal law practitioner and he said that to me. It is true that a recent measure in Scotland, the Sexual Offences (Scotland) Act 2009, covers a lot of ground and it may be that the Scottish Government are reluctant to expand on it at this stage, but some explanation is required as to why this measure, which seems eminently desirable, is confined to south of the border and why it appears to be assumed that people in Scotland will not be engaging in the same malpractice.

The second point is rather more technical. It relates to the provision in Paragraph 23 of Schedule 1, which provides that the civil standard of proof will apply to any proceedings in the High Court of Justiciary or a sheriff court relating to serious crime prevention orders. I suggest that the clause may be too widely drawn. It is mirrored to an extent by the provisions relating to England and Wales about the standard of proof, but the point that emerges from a detailed reading of these provisions is that the civil standard applies to proceedings in the High Court, which in England is mainly a civil court and deals with the making or amendment of these orders, whereas the criminal standard applies to proceedings brought in the Crown Court, which is the equivalent of the High Court of Justiciary or the sheriff exercising his criminal jurisdiction. It is not immediately clear to me why the civil standard should be expressed so broadly in relation to criminal jurisdiction in Scotland when it is carefully separated out in the equivalent English provision.

The names of the courts are bit confusing but I am sure that the draftsmen understand that the High Court of Justiciary is entirely criminal—that is its jurisdiction exclusively—and that it is therefore right to be very careful about altering the standard of proof there. The point is that there could be proceedings under these orders that relate to serious crimes—an attempt to pervert the course of justice in relation to these orders, for example—which one surely would have thought could be prosecuted according to the criminal standard. Again, this matter requires some explanation. It may be that those north of the border have some guidance to give us as to what the answer should be.

My final point is a quibble about drafting. I am reminded that there used to be a practice when I first came into this House in the middle of the 1990s; from the Cross Benches you would see Lord Simon of Glaisdale and one or two others sitting looking at Bills to find bits of grammar or drafting that they could draw to the House’s attention. Usually this was a bit tongue in cheek, but sometimes there were bits that really were worth mentioning.

There is one minor complaint that I should like to voice about what one finds in Clauses 57(1) and 58(3). Clause 57(1) deals with the jurisdiction in the magistrates’ court, but magistrates’ courts do not sit in Scotland. In Clause 58(3) we find that appeals, apparently from a magistrates’ court, may be taken in Scotland to the sheriff principal, who sits only in Scotland. Again, if one delves around in the Bill, the answer is to be found later on: in Clause 61(4) we find that a reference to the magistrates’ court is to be read as a reference to the sheriff. However, it is rather untidy to have to go there to interpret magistrates’ courts, when in Clause 58 it is all set out in full for you so that you have the proper English court and this court in the same clause. It would have been better either to group all the Scottish bits in Clauses 57 and 58, or to leave Clause 58 as one that apparently dealt only with England, and then clear it all up as is apparently done in Clause 61. That is the kind of point that Lord Simon would have raised. He would never have dreamt of putting down an amendment to deal with it but would have thought it proper to draw the House’s attention to it, and I should like to do that.