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We want to draw attention to the fact that we are uncomfortable with the phrase "balance of probabilities". We are seeking a way marginally to improve the protection for innocent parties without weakening the legislation in a way that would defeat the object of the Bill. That is why we suggest the phrase that we do, which I discussed with John Wadham of Liberty the other day; I hope that the Government will look on it kindly—we are always optimistic.
I fully support amendment No. 59, tabled by Conservative Members. The word "thinks" looks entirely out of place in clause 252. It is the sort of word that some of us might have included in an amendment after being a Member for a couple of months; it is not the sort of word that one expects Government draftsmen or Ministers to use, although I do not blame any individual for using it. I am sure that the Minister will take responsibility for any bad drafting in the Bill.
The suggested alternative phrase—"has reasonable grounds to believe"—appears regularly in legislation and is commonly understood by legislators and those in the courts. It is a reasonable phrase to include. After all, if a person, or an authority, does not have reasonable grounds to believe something, how can he or she proceed? The word "thinks" is a rather looser term, which defies tight description, so I hope that the Government will consider that amendment sympathetically.
I shall conclude my remarks because I want to give other hon. Members a chance to contribute and to ensure that we move on to later groups of amendments, but we are dealing with important issues, especially given the conjunction or interface—to use that dreadful word—with human rights legislation. It is simply not good enough for the Minister to say that the Human Rights Act exists so we should not worry as the courts will deal with such issues later. The Bill should reflect the fact that Parliament has passed the Human Rights Act, not simply as an adjunct but in the Bill itself.
Mr. Garnier: I, too, will be as brief as I can, given what has been said already. I turn first to amendment No. 57. I agree with the hon. Member for Lewes (Norman Baker) that European convention jurisprudence is not concerned so much with what Governments think—if I can use that word—but with the effect of any provision. Certainly on first blush, clause 249 involves a criminal penalty, and to dress it up as part of a civil proceeding does not rescue the Government from that problem. Given that, in effect, a criminal penalty will be exacted, the evil of retrospection ought to be carefully guarded against.
Powers of retrospection seem to be increasingly introduced into this country's criminal law, but as often as not they are confined to serious terrorist activities. I shall be corrected by the Minister who knows an awful lot about this, but I think that the terrorist statutes that the House has passed in the past two or three years are examples of laws where retrospection has been accepted to a greater or lesser extent.
Mr. Davidson: The hon. and learned Gentleman speaks about the evils of retrospection and is prepared to accept them for terrorist offences, but does he accept that more people have been killed in my constituency as a result of
drug misuse than by terrorist activity and, therefore, that the significance of retrospection should be considered in that context as well as simply in that of terrorism?
Mr. Garnier: I am not an expert on the hon. Gentleman's constituency or on how people die in it. I dare say that what he says is perfectly true. However, we are not talking about criminal offences but about what the Government claim is civil recovery. If he is right, he should confine his remarks to the criminal law. We should not introduce retrospection into civil law, which this part of the Bill claims to be about.
On the points made by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and the hon. Member for Lewes, the Government should inform us of their view of article 7 of the convention, of which I am sure the hon. Member for Glasgow, Pollok (Mr. Davidson) is aware. If they did, we would be able to understand what lies behind their thought processes in relation to part 5. I do not need to labour those points—they have been made already with considerable force by my hon. Friend the Member for Beaconsfield—but they are there to be answered. I take it that the report of the Joint Committee on Human Rights has recently been published, although I regret that I have not read it. The Government have therefore not yet had a chance to reply in full or had a chance to indicate whether they intend to reply at all. I dare say that somebody will assist me on that.
Amendment No. 60 deals with the question of the balance of probabilities and/or the standard of proof applicable in civil proceedings under clause 250(3). My hon. Friend was right to say at the outset that in all civil proceedings the general standard of proof is based on the balance of probabilities. However, in those proceedings, the judge or jury will be advised to consider a particular allegation in a slightly different way. In my field of defamation, a defendant publisher will often want to allege that it is true that the claimant is guilty of fraud or some other hugely antisocial activity. By and large, the more serious the allegation that is being made, the greater the degree of proof that the court will require to be satisfied that it has occurred.
In the context of a Bill that deals with serious criminal activity—whether it be drug trafficking, money laundering or another serious crime—we are dealing, as a sub-set of that, with civil recovery by the agency of unlawful proceeds, which is, in effect, a criminal penalty. It certainly seems to me that it would be just that the court should not accede to the claim issued by the authority unless the wording of amendment No. 60 were taken into account. To use the expression "balance of probabilities" is, in these circumstances, insufficient. I urge the Government to think carefully about what my hon. Friend has said.
Amendment No. 59 refers to clause 252. There has already been criticism of the use of the word "thinks". Although it is an English word that is easily understood, I am not sure that it is the right one to use in this context. Not all thoughts are necessarily rational or based on evidence or fact; they may be based on other factors. I dare say that the authority—or the director who runs the authority—would not wish to mount a claim on an irrational basis simply because it thought that somebody held recoverable property. None the less, it is an unwise word to use in this Bill even though an element of protection might be provided by the pleadings process that
the authority will have to employ to mount its claim. We know that the enforcement authority must serve a claim form, which used to be called a writ, and a particulars of claim, which used to be called a statement of claim. No doubt those two documents—or one document, if one is endorsed on the other—will set out properly the basis on which the case is to be deployed. If that is so, there is no harm in the Bill reflecting the need for something more than thought to be the basis on which a claim is mounted.My hon. Friend's arguments in support of amendment No. 59 are unanswerable. It would be sensible, wise and just to replace "thinks" with
- "has reasonable grounds to believe".
My hon. Friend's amendments would not damage or wreck the Bill. Indeed, they would enhance its ability to do what the Government intend. I trust that the Minister, having listened to what my hon. Friend and the hon. Member for Lewes said—even if he ignores what I have said—will conclude that the amendments are good and give them serious consideration. I hope that he accepts them.
Vera Baird: Amendment No. 57 deals with retrospectivity, which is a theoretical issue at the moment and is part and parcel of whether the proceedings are criminal or civil. If what the Government call civil turns out to be criminal, the retrospectivity will make the proceedings incompatible with the European convention on human rights. On the other hand, it is good that we will have the power to seize the proceeds of a crime committed a long time ago or the day before the Bill comes into force. What were criminal goods before that date will retain the quality of criminal goods after it and should be seized. While the procedure remains civil, the problem with retrospectivity is relatively small.
Amendment No. 60 deals with the standard of proof. Current legislation uses the standard of proof that is applicable to civil proceedings. The draft Bill used the same standard of proof. The Government have changed that—if change it be—to the balance of probabilities. The issue is whether the change is cosmetic and whether it matters. Opposition Members said that common law authorities have noted that even if proceedings take place on the civil standard of proof, the fact that the complaint involves a criminal allegation requires that standard to slide upwards in relation to the criminality and the consequences that follow.
Interestingly, having accepted that that principle is right—indeed, I have experienced it and implemented it in court many times and seen the sense of it—we must consider a problem that was recently set out by Lord Bingham in a case in 2001. He said:
- "It should, however, be clearly recognised . . . that the civil standard of proof does not invariably mean a bare balance of probability . . . The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters."
- "I have no doubt that, in deciding whether the"—
- "is fulfilled, a magistrates' court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard."
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