Serious Crime Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Monday 16th June 2014 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I confess to having had some doubts as to whether I was justified in speaking on this Bill, given that I am so clear as to its essential merit and, indeed, so bereft of any constructive and useful criticisms. But given, too, how critical I suspect that I, and no doubt many others, am going to have to be when we shortly debate the Criminal Justice and Courts Bill, which we understand will be leaving the other House tomorrow, I thought it perhaps appropriate to express my support for the Government in what they are doing at least in the present Bill. My doubts arose afresh when I saw that the noble and learned Lord, Lord Hope of Craighead, was down to speak before me. Indeed, I passed him a note saying, “Will you leave me anything to say?”. It may be that your Lordships shortly come to doubt the correctness of his response.

In all events, I confine myself to brief comments on just four aspects of the Bill. The first is the proceeds of crime provisions, which of course are at the very heart of the Bill and indeed form the largest part of it. These provisions I certainly applaud. Indeed, anything that strengthens our legislation, designed to strip criminals of their ill gotten gains, is greatly to be welcomed, and Part 1 of the Bill should undoubtedly plug a number of gaps that have been found in the present confiscatory scheme. I particularly welcome Clause 11, which will enable restraint orders—that is to say, orders freezing assets and preventing their dissipation pending any eventual confiscation—in future to be made as soon as there are reasonable grounds to suspect that the person is guilty of an offence, rather than, which is presently the position, only when there is reasonable cause to believe. Of course, belief is the higher test. The future test is the lower test: reasonable grounds to suspect that a person has benefited from his criminal conduct. I add only that, for my part, the essential value of all this confiscatory scheme is impoverishing and therefore deterring the criminal rather than enriching the state, so I am perhaps less worried than the noble Baroness, Lady Smith, as to the comparatively high cost of enforcement.

Secondly, I also welcome Clause 41, the clause to which the noble Lord, Lord Richard, spoke at a very early stage during the Minister’s opening of this debate. Clause 41 creates an offence of participating in the criminal activities of an organised crime group, and thereby gives wider effect than the United Kingdom has hitherto given to Article 5 of the United Nations Convention against Transnational Organised Crime. Up to now, as has been explained, we have relied largely on the law of conspiracy in order to target those involved in some shape or form in organised crime groups, but this of course requires proof of the person’s agreement to carry out the criminal scheme.

This new offence is designed to target those who merely support organised crime—in other words, those who provide, in one way or other, services that facilitate criminal capability and activity but without those assisters being directly, so to speak, involved in the criminal plan itself. Henceforth, such people are going to be guilty of an offence if they turn a blind eye when, in the language of Clause 41(2), they know or have reasonable grounds to suspect—again, the lower test and not, as I think the noble Lord, Lord Sherbourne, suggested a moment ago, the higher test of belief—that they are in fact helping,

“an organised crime group to carry on criminal activities”.

This is designed not least to discourage corrupt and complicit professionals who provide services to organised crime groups. I do not for a moment suggest that more than a very tiny minority of professionals lend themselves to this, and it is therefore perhaps unsurprising that the representative bodies for both solicitors and accountants, to which I think the noble Baroness, Lady Hamwee, referred, have expressed certain concerns about this new provision. For my part, however, these concerns are misplaced. Rather, it seems to me that this new provision may be expected to reinforce the integrity of these professionals.

Thirdly, I want to say a word about Clause 62, about which many others have spoken. It amends Section 1 of the Children and Young Persons Act 1933, which criminalises cruelty to those under 16. The amendment expressly provides that is an offence to cause suffering or injury to health whether that,

“is of a physical or a psychological nature”.

Personally, and I think in common with the Minister, I doubt whether it is strictly necessary. Even under the existing wording, it seems to me reasonably clear that causing a child unnecessary psychological suffering would constitute an offence, but plainly it makes sense to update this now rather archaic language and to spell out in terms that causing psychological harm is also explicitly criminalised. Indeed, it has come to be recognised that, as the noble Lord, Lord Elystan-Morgan, made plain, these sorts of cases can indeed be some of the very worst cases of child cruelty.

As the noble and learned Lord, Lord Hope, has already observed, this proposed amendment is entirely consonant with a decision that we came to in the Supreme Court in a case called Yemshaw some three years ago, in which we held that the term “domestic violence” is indeed apt to include not merely physical and intimidatory behaviour but other forms of abuse, including, above all, psychological abuse that gives rise to the risk of harm. One wonders perhaps whether the noble Lord, Lord Paddick, might have overlooked that case in what he said as to how domestic violence is not currently apt to include it. It is true that in that particular statutory context—the urgent need to be rehoused as homeless—I doubted the correctness of the view of the majority, although I did not in the event dissent from it. In the context of outlawing child cruelty, however, it seems to me unarguably the right approach.

The final clause that I would mention, again with total approval, is Clause 64, which widens our extraterritorial jurisdiction under the Female Genital Mutilation Act 2003. Someone who, even outside the United Kingdom, mutilates a girl’s genitalia or aids, abets, counsels or procures a girl to do so herself commits an offence that is triable here, but under the present law only if they are UK nationals or permanent UK residents. The proposed amendment will extend such extraterritorial jurisdiction to those who are habitually resident here—in other words, even those who are not permanently resident here. Parenthetically, in Section 2, there is an offence of aiding and abetting the girl or woman to mutilate herself. I believe this is the only offence, apart from that of assisting suicide, which we shall no doubt discuss later, where the act of assisting and not the substantive act itself is criminalised.

I add my voice to those of the large number of noble Lords who have already spoken to express how appalling the continuing operation of this vile practice is among certain communities and how astonishing the failure of effective law enforcement procedures to stamp it out. Eight years ago, sitting with the noble and learned Lord, Lord Hope, in the Appellate Committee of this House in a case called Fornah v Secretary of State for the Home Department, we granted asylum to a 15 year-old girl from Sierra Leone because of her fear that, if returned, she would be subject to FGM. There are plainly still communities here who, as in Sierra Leone, regard FGM as an acceptable, and indeed desirable, initiation rite into adulthood. How dreadful that is. If a victim were to arrive at, say, a school or hospital with gunshot wounds, the police would be speedily alerted. So it should be with those who on examination can be seen to have been the victims of this abhorrent practice.

I wish to make a final comment on the Bill as a whole. So plain does it seem that the provisions of this Bill are essentially well directed that I find it difficult to understand why no fewer than four days have been allotted to it in Committee. As other noble Lords have already made clear, certain provisions are going to need careful, detailed consideration, but if this Bill needs four days, goodness knows how many days the Criminal Justice and Courts Bill is going to need when it comes. That, however, is for the future. As far as this Bill is concerned, so far, so good.