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Criminal Justice and Immigration Bill

moved Amendment No. 99DA: 99DA: Clause 97, page 72, line 33, at beginning insert ““Subject to subsection (4A) below,”” The noble Lord said: My Lords, the purpose of this amendment is to provide that after a period of 10 years after a sentence is served or the order, established under the clauses referring to a violent offender order, is rescinded or comes to an end, a person who has either served a sentence or been the subject of an order should no longer qualify to have a violent offender order imposed. I emphasise that I am proposing 10 years from the expiry of a sentence, not 10 years from conviction. The purpose is to establish a significant period in which the person has had an opportunity to re-establish good character and has not fallen foul of the criminal law. In other words, they should be treated like other citizens. The fact that the Government have introduced the concept of an immediate and current risk helps matters. It cannot be done purely on a whim. Notwithstanding the fact that we are talking about current risk, I still believe that there is legitimate room for concern about people who, as I said, have established in the intervening years a lifestyle and pattern of behaviour which has not given rise to any further involvement in crime, or convictions for crime. In his letter to my noble friend Lord Thomas of Gresford, the Minister gave an example of circumstances when, even after a period of time, the order might be legitimately sought. He cited someone who had committed a crime of attempted murder in 1993 following a two-day drinking binge. The sentence was given before the introduction of the public protection sentences—there was no statutory management for ongoing supervision after the completion of a sentence. The letter continued: "““In early 2008, the police were receiving various complaints about the individual’s behaviour from his neighbours who had reported that he was often very drunk and had been acting in an extremely threatening way to them. In particular, one neighbour reported to the police that he often banged on people’s doors in the neighbourhood in the middle of the night and shouted threats of violence. The police had also received complaints from the owner of the local pub who said that the individual’s behaviour had dramatically worsened over recent months and he was often ejected from the pub for provoking fights with other drinkers … Over the last few months, the man’s behaviour had concerned public authorities enough to conclude that he now posed a risk of serious violent harm. We would want a Violent Offender Order to be an available tool to protect the public from the risk of serious violence””." I acknowledge that it is always difficult when giving examples, but that was given in a letter to justify the circumstances of someone who had had a conviction in the past but had not had one in the intervening 15 years. Prima facie, there appear to be a number of specific crimes in that example, such as acting in a threatening way towards neighbours, banging on people’s doors in the middle of the night, shouting threats of violence and being ejected from a pub for provoking fights with others. That leads to a profound concern. In an earlier debate when the Minister gave an example of someone being punched at a trade union meeting, the noble Earl, Lord Onslow, said that if it is a crime, it is a crime. It should be treated as such and we should not use the back door of civil procedure to try in some way to get round the provisions of the criminal law. Why would the authorities use the violent offender order rather than go down the route of criminal procedure? They may be concerned that they would not have sufficient evidence. I read the exchanges in Committee on 5 March, when the most reverend Primate the Archbishop of York said: "““Either a crime has been committed or it has not. If it has not been committed, for heaven’s sake what are these orders for?””.—[Official Report, 5/3/08; col. 1173.]" He was saying the criminal law was the place to deal with this. In response, the Minister said: "““We are talking about going into a pub and people saying that a crime has been committed and being prepared to talk about it. However, I am afraid that there are areas in our country where people will not do that. People will not come forward, as they are scared””.—[Official Report, 5/3/08; col. 1173.]" I recognise that that is a legitimate concern, but he is basically saying that there might not be any evidence to prosecute a crime, so the civil procedure will be used which does not necessarily have the requirements of the criminal law to establish that a person should be convicted. Perhaps a later amendment might address that. The other possibility is that an argument might be made that drunkenness in the middle of the night might not attract the kind of penalty or sentence that could possibly be applied by a restriction attached to a violent offender order. I find that disturbing as well because it would mean that rather than having the appropriate punishment that would follow from conviction for a specific crime, a more restrictive order on behaviour could be imposed. We are going dangerously close to a breach of Article 7 of the European Convention on Human Rights because we are talking about people who have been convicted in the past having an additional punishment added at a later date. The other fundamental reason why I am concerned about circumstances where someone has led a life that has not attracted a conviction for a lengthy period of time and where no crime has been committed is that it opens the door to broadening this beyond people who have been convicted in the past. In response to the previous debate, the noble Lord, Lord West, referred to the importance of not exposing the public to the risk of violent harm. He did not qualify his response, but a risk under these orders is a risk of violent harm from someone who has already been convicted of a serious criminal offence as set out in the Bill. If a pattern of behaviour by A, who had a conviction 20 years ago, justifies a violent offender order, how long will it be before a Government come back to Parliament and say, ““We’ve already got it for someone who committed an offence and was convicted 20 years ago—for the sake of argument—why shouldn’t it also apply to people who have never committed an offence?””? If in two identical patterns of behaviour one can attract a violent offender order and the other cannot, I can imagine a Minister standing up in future to say that that is illogical and therefore violent offender orders should be extended to people who have never had a criminal conviction. At that stage, we would be imposing restrictions on people who have not committed an offence in the past and who have not committed one then. Giving any Government or public authority the power to impose restrictions on people when no offence has been committed is a very worrying development. I do not think it is beyond imagination that at some stage in future someone could make that argument. We should not be putting in place building blocks for a further encroachment on civil liberties in future. On those grounds, I beg to move.