Proceeds of Crime Bill

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Mr. Grieve: I beg to move amendment No. 30, in page 4, line 5, leave out ``a balance of probabilities'' and insert

    ``the standard applicable for criminal proceedings''.

The Chairman: With this we may discuss amendment No. 31, in page 4, line 5, leave out ``a balance of probabilities'' and insert

    ``the standard applicable in civil proceedings''.

Mr. Grieve: The amendments are mutually exclusive, and are so important that I hope that the Committee will consider them carefully. The Bill envisages that the important tests described in subsections (4) and (5) should be made on the ``balance of probabilities''. In modern legislation, that is a rather surprising expression. If the Government sought to apply the civil standard of proof in those circumstances, I would have expected them to use the expression ``civil standard of proof'', as in amendment No. 31:

    ``the standard applicable in civil proceedings''.

Alternatively, there may be arguments that the appropriate standard of proof should be criminal proof in view of the confiscatory nature of the proceedings, and the fact that the outcome of the proceedings, linked as they are to criminal proceedings, would result in a person clearly being identified as a miscreant and his assets being confiscated. That option is in amendment No. 30.

I stress that I want to canvass opinion on amendment No. 30. However, I am mindful, especially in view of what the Minister said and my understanding of the Bill, of the fact that in reality there may be compelling arguments why the civil standard of proof should be applied in the confiscation procedure. Nevertheless, the civil standard of proof and the balance of probabilities do not appear to be the same thing. I am especially troubled, because the original draft Bill specified the standard applicable in civil proceedings.

At some point, someone decided that they did not want that standard, but wanted the balance of probabilities instead. We do not have to go back far to decide why that is. It is apparent in previously decided case law that there is a growing divergence between the balance of probabilities and the standard of proof applicable in civil proceedings. Committee members may already be aware that, while the civil standard has always been expressed historically as the balance of probabilities, various court decisions that go back to the 1950s have emphasised that the more serious the matter to be decided, the more the civil standard of proof should not invariably mean a bare balance of probability. The civil standard is flexible, and should be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proof. I expected the standard proof in civil proceedings to be cited in the legislation, and I am anxious that it has been removed. Will the Minister tell the Committee why he did that?

There is one thing on which the Committee can agree. We are discussing serious matters, and a procedure is envisaged that would identify whether an individual falls within a category. If he does, unpleasant things can be done to him. Furthermore, the burden of proof will be reversed, so that the onus is on him to disprove the charges. If the procedure is intended to be a civil recovery procedure—and there is an argument that it should not be—the standard of proof should be the one that applies in civil proceedings, not the balance of probabilities.

In my professional experience, ``balance of probabilities'' is an old phrase, but one that is becoming increasingly qualified. I can only imagine that, by including that phrase, the Government were deliberately seeking to provide for as low a standard of proof as they could. The Committee needs to consider that matter carefully. I could amplify case law, but I do not think that that would be helpful, as I suspect that the Minister will already be familiar with the principles. However, the matter calls for comment.

On the criminal standard, there is an argument that such matters should be proved so that the court is sure, especially if confiscation is to take place. It has also been said that the civil and criminal standards in serious matters, in reality, almost dovetail one into another. Perhaps that is why I am less anxious about establishing a criminal standard of proof than a civil standard. However, a balance of probabilities, in bare form, affords the least possible protection to the individual faced with these proceedings.

The issue is simple, and I do not want to spend too much time introducing it. I hope that the debate will be one in which we have a dialogue rather than set speeches, because I am keen to find out whether other members of the Committee, irrespective of party, share my disquiet about the issue. I also hope that the Minister will give a detailed explanation—it may prompt interventions from me—of why the draft Bill was altered. That troubles me, and if the test is to be one of civil justice, I would be grateful if we can ensure that the Bill is in a form that is compatible with the ordinary principles of civil justice.

The Chairman: Before we proceed, I remind hon. Members that it is now three minutes to 5 o'clock. I suspect, from the feeling of the Cttee, that the debate may follow the lines of the previous one and that the Minister will wish to intervene fairly early on. If that is so, and if we can complete the debate by 5.30, so be it. However, the Chair has responsibility for the welfare of the Officers of the House as well as that of Members; if the debate is not completed by 5.30, it would be my intention to suspend the Committee for one hour.

Further debate adjourned—[Mrs. McGuire.]

        Adjourned accordingly at three minutes to Five o'clock till Tuesday 20 November at half-past Ten o'clock.

The following Members attended the Committee:
Gale, Mr. Roger (Chairman)
Ainsworth, Mr. Bob
Baird, Vera
Baker, Norman
Carmichael, Mr.
Clark, Mrs. Helen
David, Mr.
Davidson, Mr.
Field, Mr. Mark
Foulkes, Mr.
Grieve, Mr.
Harris, Mr. Tom
Hawkins, Mr.
Hesford, Stephen
Johnson, Mr. Boris
Lazarowicz, Mr.
Lucas, Ian
McGuire, Mrs.
Robertson, John
Stinchcombe, Mr.
Stoate, Dr.
Tredinnick, Mr.
Watson, Mr.
Wilshire, Mr.

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