Police, Crime, Sentencing and Courts Bill — House of Lords, 2021-11-17
Topic: Law and Crime
Jonathan Marks (Liberal Democrats, Centre to centre-left): My Lords, my noble friend Lord Paddick will speak from the Front Bench for my party on this group, but he has quite a lot to say and, in view of the time, he has asked me to speak now, so with your Lordships’ permission or agreement, I shall address a number of points where serious violence reduction orders—SVROs for short—offend against cardinal principles of justice that our criminal law generally holds to be of the greatest importance I say at the outset that we should be in no doubt that an SVRO is to be a criminal sanction. That is, first, because of the requirements and prohibitions it imposes on an offender who is made subject or is to be made subject to such an order. It is, secondly, by reason of the draconian powers exercisable by the police in respect of an offender who is to be made subject to such an order, which are the equivalent of a criminal sanction on that subject. It is, thirdly, because the exposure of an offender subject to an SVRO to further criminal sanctions for the breach of any conditions attached to it amounts to a criminal sanction in its imposition Against that background, my first objection of principle is that it is wrong that a criminal sanction should be imposed independently of any criminal offence. Amendment 225, in the names of my noble friend Lord Paddick and the noble Baroness, Lady Meacher, is addressed to the novel and unwarranted approach to carrying a bladed article in the proposed new subsections 342A(3)(b) and (4)(b). As their explanatory statement makes clear, carrying a knife is not of itself a criminal offence, yet these provisions would render an offender liable to be made subject to an SVRO if either the offender or a joint offender with that offender had a knife with them, for whatever reason, whether the carrying of that knife was an offence or not. These orders as proposed would impose criminal sanctions for conduct which did not amount to an offence known to the law. That is contrary to principle in a profound and unacceptable way My second objection is that our criminal law generally insists on proof of guilt to the criminal standard, beyond reasonable doubt, before any criminal sanction can be imposed. Certainly, the civil standard of proof has its place in the criminal law, but that is generally when the law imposes a burden of proof upon the defendant to establish the facts of a defence which, if proved, would justify conduct that would otherwise be criminal. However, what is proposed here is that a criminal sanction can be imposed on the basis of proof, to the civil standard only, of the primary facts giving rise to that sanction. Again, that is contrary to principle and is calculated to water down, even to undermine, one of the most fundamental principles of our criminal law—one that I venture to suggest is probably the best known of any of those principles among the general public My third point concerns the unwarranted extension of the law relating to joint enterprise embodied in the proposed new subsection 342A(4). That is why I have added my name to Amendments 226A and 226B just spoken to by the noble Baroness, Lady Armstrong of Hill Top. I do not understand how it can be contended that an offender should be subject to criminal sanction if that offender did not know that a bladed article or offensive weapon would be used by a joint offender in the commission of an offence on the basis that he merely "ought to have known" that fact. That is proposed new subsection 342A(4)(a) Proposed new subsection 342A(4)(b) is even worse: an offender is to be subject to the criminal sanction of an SVRO because a joint offender had a bladed article or offensive weapon with him at the time of the offence, even if the offender did not know that, simply on the basis that he "ought to have known". And all this to be proved to the civil standard only, notwithstanding that possession of a knife is, of itself, not a criminal offence That is not all. I shall be supporting the noble Lord, Lord Ponsonby, in opposing Clause 140 standing part of the Bill because, in addition to all that I have said so far, SVROs are to be imposed without any right to trial by jury; they are to be imposed by a judge alone, following conviction. As for the evidence to be adduced to support their imposition, in the words of proposed new subsection 342A(8), it is not to matter "whether the evidence would have been admissible in the proceedings in which the offender was convicted." That anomaly is the subject of Amendment 231, in the name of my noble friend Lord Paddick. I simply ask, in connection with these SVROs, where are we heading. It is in the wrong direction for our criminal justice system.