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9.15 pm
I looked, as a good lawyer would, to an evidence textbook to muddy the waters even further. I found in the latest edition of the textbook, that the civil standard of proof and the balance of probabilities were dealt with as though they were exactly the same thing. I comfort myself in this way: under clause 6(7), the court has to decide on the balance of probabilities the issues that arise under that clause, and under subsections (4) and (5) in particular. When it comes to the big decisions to be taken under clause 11, and to whether or not the assumptions should bite—that will be the penal bite of this aspect of the Bill—the court will not have to apply a standard of proof at all. It has to be satisfied that there is not a serious risk of injustice if the director's application is granted.
As I have understood it throughout my practising life, when a judge is considering the question of an injustice, he does not apply a burden or standard of proof on either side; he uses his experience and reason and makes a proper decision. Consequently, the backstop, which encourages me to think that the amendment is not as necessary as it might have first appeared, is that one can, I suspect, leave the balance of probabilities to be applied by the judiciary within the confines of what is acceptable.
Mr. Garnier: Is not the point that the hon. Lady is drawing to our attention that most decisions reached by the courts do not depend on the burden of proof but are much affected by the standard of proof? The burden of proof is who has the duty of proving a particular thing, and the courts are not always very worried about that. They are interested in the quality of the evidence in front of them and the standard to which it has to be proved.
Vera Baird: I know what the hon. and learned Gentleman means, but I have argued time and again at the Court of Appeal, when it is eminently in my interest and that of my client to do so and when the issue is injustice, that the burden of proof falls on one side, and I have repeatedly been faced with the answer that it does not. I have been told that when the issue is one of injustice, what is important is the judge's properly reasoned view of what is just and what is not.
As a backstop provision, that comforts me into thinking that however doubtful one might be, there is that difficult conundrum that the civil burden of proof, is capable of rising up until its application becomes wholly impractical. The Government will already have tried to prosecute the
person concerned and will be unable, on the same standard of proof, to take away his property under civil recovery proceedings.I conclude my remarks on this difficult issue by saying that, as long as these are civil proceedings, it is acceptable to leave the question to the judiciary. If they become criminal proceedings, we will have to think again.
Mr. Mark Field: We have spoken at great length on this matter, so I shall keep my comments brief because I shall be interested to hear what the Minister has to say. I agreed almost entirely with the remarks of my hon. Friend the Member for Beaconsfield (Mr. Grieve).
Part 5 has been the crux of Opposition Members' concern, both in Committee and on Second Reading. I fully understand the inevitable frustrations of many Labour Members, which, as usual, were vocally expressed by the hon. Member for Glasgow, Pollok (Mr. Davidson), when individuals are seen to get away with blue murder, or at least with the proceeds of their crime. I hope that Members on both sides of the House accept our concern about many aspects of part 5. I probably go a wee bit further than my hon. Friend the Member for Beaconsfield, who, in his perennially consensual way, talked about our agreement with the main thrust of the proposals. I agree with the basic long-term aims of part 5, but I have deep concerns about the way in which the Government propose to introduce it. As has been said in relation to amendment No. 57 and the issue of retrospective recovery, we are trying to make a civil recovery test when we are dealing with criminal activity. There is therefore great concern that we are muddying the judicial waters.
On amendment No. 60, there is, as a number of Members have said, great concern about using the test of a balance of probabilities, rather than a test based on a decision beyond reasonable doubt. The hon. Member for Redcar (Vera Baird) made an extremely good point that is slightly unanswerable: that if we move towards a test based on a decision beyond reasonable doubt, many other amendments that we may wish to make would inevitably fall away. I entirely understand where the hon. Lady is coming from, but equally I would like the Minister to say something about the proposals in amendment No. 60, which, broadly speaking, rehearses arguments that we made in Committee.
On amendment No. 59, there is understandable concern about the power of the state, which, to many people with a libertarian cast of mind, is being unacceptably extended by the Bill. The state will have an almost overwhelming power; there is an assumption that if an individual is not prepared to tell all and sundry about the state of their bank account and assets they will quickly find themselves under full-frontal assault by a number of different state agencies, not least the all-powerful Assets Recovery Agency. I am interested to hear what the Minister has to say, but the use of the word "thinks" in clause 252 is symptomatic of the state's all-embracing power. At the very least, it should be substituted by words such as "reasonable grounds".
Norman Baker: The words "thinks" is a test that the ARA applies to an individual. It can say, "Well, we did think that", and that is all that has to be satisfied, whereas
the criterion in the amendment based on "reasonable grounds to believe" is external and has to be justified and validated by someone else.
Mr. Field: I thank the hon. Gentleman and entirely agree that that is our core concern. I should be grateful if the Minister elucidated other cases in which such power rests with a state organ and in which there is simply a test on its director to think rather than believe or have reasonable grounds to believe.
I shall not harp on, as other Members have done, particularly the hon. Member for Lewes (Norman Baker), about human rights aspects of the Bill. That ground has been covered; Members will know that had I been in the House when it discussed our country becoming a signatory to a lot of European human rights legislation, I would not have supported that proposal. We all want to make sure that the Bill works. Nothing could be worse than finding ourselves in a position where a number of high-profile cases fell through simply because the European court of human rights could interfere, and the legislation became a jamboree for a lot of human rights lawyers. That is not a sensible way forward, particularly given the long-term goals of the Bill and the ideas that have understandably been put in place.
My hon. Friend the Member for Beaconsfield was right that there are no loopholes through which wrongdoers can possibly escape; the risk, however, is that a lot of innocent people will be put through the mill.
On amendment No. 61, concern has been expressed about what is almost a double-whammy in terms of the underlying intention of the Bill. I fear that the Assets Recovery Agency will be put under great pressure to produce results, with an increasing temptation for it or other organs of the state to go through the process of a second prosecution.
Clause 287 deals with compensation—I know that it arises elsewhere in the Bill, but it is obviously specific to part 5. Amendment No. 62 seeks to bring a certain level of justice into play by accepting that a receiver or interim administrator can initiate a course of action without culpability.
Mr. Grieve: In a desire to sit down and allow the debate to progress, I inadvertently failed to comment on amendment No. 62, whose importance my hon. Friend clearly appreciates. He may agree that the reason for that importance is that the Bill as it stands allows a defendant to obtain compensation in respect of a civil recovery, but not a third party that has been affected by the actions of the receiver. As the process is initiated by the state and may leave a third party at a grave disadvantage, that appears rather surprising, as he may agree.
Mr. Field: Something might be said about organ grinders and monkeys—but perhaps I am being a little too harsh on myself. My hon. Friend is absolutely right that the innocent person must be protected. The current provisions establish a convoluted route; in effect, as he says, a defendant can get compensation if his interests have been upset, but a third party will always have to be put into the shoes of a defendant in order to do so. That is why some amendment is necessary to protect the interests of other persons.
Mr. Davidson: I rise to speak with some trepidation, given that so many learned Members have spoken.
The implication in such debates is always that the rest of us are not so learned. Allow me to confirm that prejudice by speaking from a non-legal background, as this is one of those debates where the voice of non-lawyers ought to be heard.
Norman Baker: That includes me.
9.30 pm
Mr. Davidson: The hon. Gentleman is a Liberal, and I am never quite sure what category the Liberals fall into. They certainly have a natural tendency to bore.
I speak as someone who has been generally committed to the principles of civil liberty. For a long time, I was a member of the executive of the SCCL, the Scottish Council for Civil Liberties, so I do not approach these matters from an intolerant point of view. As the hon. Member for Lewes (Norman Baker) and some other hon. Members said, however, we are considering a question of balance. I have heard little to indicate that many hon. Members, especially Opposition Members, appreciate what is happening in the lives of constituents and understand how they are adversely affected by the actions of those whom we wish to pursue by introducing the Bill.
I appreciate that criminals have rights. I accept that they will want to hire the best lawyers whom they can afford to defend them, and that the job of those lawyers is to find loopholes and tricks to get their clients off, even though they might be as guilty as sin and the lawyers might know that. I recognise that that is all part of the game, but it must also be recognised that my constituents have rights. They have a right to expect criminals to be taken off the streets. There are families in my constituency who never go out together because they are afraid not to leave someone in the house, because they know that if they do so it will be broken into by people looking for something to steal and sell in order to feed their drug habit.
I know that some of those points are Second or Third Reading issues, but these matters must be seen in context. The Bill must be considered in the context of the perils and difficulties faced by people outside. I am struck constantly—
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