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Criminal Justice and Immigration Bill

moved Amendment No. 99F: 99F: Clause 99, page 74, line 24, leave out subsection (1) and insert— ““(1) This section applies where an application is made to a magistrates’ court under section 98 in respect of a person (““P””). (1A) After hearing— (a) the applicant, and (b) P, if P wishes to be heard, the court may make a violent offender order in respect of P if it is satisfied that the conditions in subsection (2) are met.”” The noble Lord said: My Lords, government Amendment No. 99F relates to the process that the courts must follow when making a violent offender order, and to the rights of the individual in respect of whom an application for a violent offender order is being made. The effect of the amendment is that the individual in respect of whom an application is being made has the right to be heard at the point of an application being considered, not just at the point of renewal or variation of an order as currently provided for. Amendment No. 101 also relates to the process that the courts must follow when making a violent offender order. This amendment would require that violent offender orders are not made without a full adversarial hearing. The effect of this amendment would be that some of the criminal fairness guarantees in Article 6 would be applied to violent offender orders, particularly in relation to the cross-examination of witnesses. I understand that through his amendment the noble Earl, Lord Onslow, seeks to address two issues. The first is to ensure that all individuals in respect of whom an application for a violent offender order is made are treated fairly—quite rightly so—and appropriately throughout the application process. I assure the House that we fully support that proposition. The second issue is to follow the recommendation of the Joint Committee on Human Rights and apply the fairness guarantees for criminal matters set out in Article 6 of the European Convention on Human Rights to violent offender orders. This would suggest that violent offender orders are criminal rather than civil in nature. I understand that that has been part of the debate we have had over the past few weeks on the issue. In particular, the amendment seeks to ensure that a violent offender order is not made without a full adversarial hearing, including the opportunity for the individual in respect of whom the application has been made to appear before the court and to cross-examine witnesses. Before outlining my practical concerns with the amendment, I should make clear that violent offender orders are not criminal measures—I am sure the House is aware of that—they are civil, and as such do not have to comply with the criminal fairness guarantees in Article 6. That said, I am very sympathetic to the noble Earl’s wish for an individual in respect of whom an application is being made to have the opportunity to appear before the court at the point of application, and not just at the point of variation or renewal—I reinforce that point. The government amendment achieves that. By giving the individual the opportunity to appear before the court, the amendment also ensures that he or she would be able to cross-examine any witnesses present. My main concern with the noble Earl’s amendment is in relation to the issue of which witnesses would be required to be present at the hearing, the evidence that could be used, and, in particular, the use of hearsay evidence. As this amendment would provide some of the criminal fairness guarantees set out in Article 6 of the ECHR, my concern is that it would suggest that violent offender orders are criminal rather than civil in nature. It is essential that violent offender orders are treated as civil in nature, in part so that hearsay evidence can be used. I know that that view is not universally shared but there is a very good reason for it. Violent offender orders are intended to apply only to the most dangerous offenders. Before a violent offender order can be made, public protection agencies must consider an individual to pose a current risk of serious violent harm. We need and want hearsay evidence to be available for use in an application for a violent offender order. This is because there will be times when witnesses will be unwilling or even emotionally unable to be cross-examined. We need to ensure that evidence from persons who may feel intimidated from giving evidence directly can still be considered indirectly by the court. I am keen to reassure the House that we expect hearsay evidence to be used in rare circumstances. In recognition of the seriousness of violent offender orders, and in sympathy with the aims of the amendment of the noble Earl, Lord Onslow, we intend to make clear in guidance that hearsay evidence should be used only where necessary and must always be relevant to the matters to be proved. Where an applicant intends to rely on hearsay evidence in court, written notice must always be given in advance of the hearing. Further, it will always be for the magistrate to decide what weight they attach to hearsay evidence. We also intend to stress in guidance that in practice we want witnesses to attend the court hearing in person, and therefore be cross-examined, wherever possible. The House will be aware that the Government have invested considerable resource into supporting witnesses, and the introduction of witness protection measures such as screens and voice distortion technology supports this. The Government have also committed to strengthen arrangements for victims further as part of their new action plan to tackle violence, which was published on 18 February this year. I agree that we need to make the application process for violent offender orders as fair as possible for the individuals in respect of whom an application has been made. However, we also have a duty to make the process as accessible as possible for witnesses who may feel at risk of serious violent harm from those individuals. I hope that the House will understand the difficult position that this leaves us in and see the changes that we have offered as a fair compromise. Having heard those arguments, I hope that the noble Earl will support the government amendment in lieu of his own. We have gone some way towards his position but there is a serious and proper constraint on how far we can move in that direction. I beg to move.