Previous Section | Index | Home Page |
For the purposes of this Part, a person has been involved in serious crime in England and Wales if he...has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence in England and Wales (whether or not such an offence was committed).
Again the word likely is used and the offence itself does not even need to be committed.
We talked earlier about the amendment from Lord Lloyd of Berwick, which I will come to in due course. When speaking on Second Reading in the other place, he got to the nub of how muddy these parts of the legislative waters are. He said:
I could understand and sympathise with prevention orders in the case of those who have been convicted of a serious crime as part of the sentence imposed by the court. I could understand prevention orders in the case of those convicted of serious crimes by a foreign court, assuming we can ever find out who they are. That all makes perfectly good sense to me, but I simply cannot understand how one can justify prevention orders in the case of a man who has committed no crimeindeed, who may have done nothing more than facilitate the commission of the crime by others, even though he did not intend to facilitate the crime and even though in fact the crime has not been facilitated, but only made more likely, however one is going to decide that and whatever it may mean.[ Official Report, House of Lords, 7 February 2007; Vol. 689, c. 741-42.]
We find ourselves in a pretty difficult position when we are trying to legislate on such shifting sands and put in place a legal framework that can stand the test of time and which individual citizens can feel confident about.
Some serious sanctions exist and can be applied. Peoples finances and work arrangements, and even their ability to travel internally within the United Kingdom, can be restricted. A wide range of offences are involved, as was touched on earlier. Most people would regard arms trafficking or child sex offences as serious crimes, but the definition of a serious crime is loosely drawn. As has been said many times in the other place and here this afternoon, it includes salmon fishing. I do not doubt that somebody who owned salmon and did not wish it to be fished would be greatly upset by that, but it is hardly in the same category as arms trafficking and child sex offences.
Other acts that are fraudulent and certainly criminal, such as the pirating of DVDs, appear to fall under the scope of the Bill, too. Serious crime is very widely drawn indeed; it includes crimes that some people will feel ought to be punished, but that perhaps ought not to fall within the scope of the Bill. Of course, if people
fall foul of the sanctions that have been put in place with respect to their internal travel arrangements or work arrangements, and breach their serious crime prevention order, they can go to prison, so a civil offence can lead directly to a criminal sanction.
There is also concern that the measures will be seen by many as a soft alternative to prosecution, and that people who ought appropriately to be convicted, after evidence has been collected and a court case has ensued, will not go through that full, rigorous process. The thinking appears to be, We know who is causing the problems, and we are keen to get them, one way or another; if we cannot get them through conventional means, we had better devise some other means of catching them. That is a difficult basis on which to put together criminal justice legislation, and it also means that some serious offenders who ought to feel the full effects of the law may well end up getting away with far softer punishments than they would otherwise have had.
Part 3 of the Bill concentrates on fraud and data sharing. Like everyone else in the House, I deplore fraud, and I accept the arguments often made to say that it is certainly not a victimless crime; all of us can, collectively, be victims of it in many different ways. There are occasions when I wish that the Government, in putting in place schemes such as tax credits, would ensure that they were sufficiently tightly administered and were not so prone to fraud, but leaving that to one side, I think that we could all agree that measures to tackle fraud have desirable objectives. However, I and others are extremely concerned about confidentiality, and we are alive to the dangers of the surveillance state. I am pleased that the Select Committee on Home Affairs has decided to make it its business to consider the surveillance state and the degree to which people who justifiably want their security enhanced and strengthened, using modern surveillance techniques, need to be reassured about their privacy and the protection of their liberties. That is the balance that we need to strike in a state such as ours.
Of course, the presumption in the past has been that when a citizen has provided his or her details to the state for a specific purpose, the details would be held only for that purpose. I accept that that is a difficult area, inasmuch as it is important that the Government be efficient in their use of data. People may on occasion be frustrated or exasperated to find that a piece of information that they gave to one Government agency has not found its way to another, as they assumed that it would, and when that would have made their interaction with the Government much more efficient, effective and smooth, so I appreciate that we are not talking about absolutes. None the less, my concern, and the concern of many other Members, is that as soon as data are shared widely across Government, and by Departments for which the data were not intended, there is a serious risk that they will be used inappropriately, whether for phishing expeditions, as was said earlier, or for any other reason.
I am concerned that the Audit Commission has been given a role in respect of data. I always thought that the Audit Commission, set up by Mrs. Thatcher, was designed to try to ensure that we received higher quality public services that were better value for money. We could have a separate debate about whether it achieved, or continues to achieve, that; after all,
millions of pounds of taxpayers money are spent on it. However, I had never realised that the Audit Commission was intended to snoop on individual citizens to make sure that our data were being matched in a way that was desirable for the Government.
It is interesting that as far as I am awarethe Minister may correct meno estimates have been given of the potential financial savings resulting from the proposal. It is legitimate to examine this aspect. If we are to extend the power and scope of the state in such a way that the privacy of individuals may be compromised, it would be useful to know what the up side is in terms of revenue savings. If we do not know that, it is hard to make a value judgment. There are many, myself included, who will feel that the amount of money is immaterial because there are issues of principle at stake to do with the liberties of the individual citizen, but others may regard that as a reasonable quid pro quo, assuming that the amount of revenue saved is considerable. At present we are not in a position to make that judgment.
I am also concerned by the ability of the public sector and the private sector to share data. That was confirmed by the Minister, Baroness Scotland, in the other place when she said:
The provisions of this Bill will enable the public sector to share information with the private sector, and vice versa.[ Official Report, House of Lords, 7 February 2007; Vol. 689, c. 731.]
Last week at the Home Affairs Committee, the witnesses included a representative of Tesco and a representative of the company that makes Nectar loyalty cards for Sainsburys and others. They were cross-examined by the Committee in detail. People who were present would have been surprised, and some may even have been shocked, by what they heard. Of course, when one stops and thinks about it, it seems obvious. If people visit one of those stores and choose to have one of their cardsI accept that that is a choice; it is not compulsory, but millions of people make that decisionthe time and location of their purchase is logged. In other words, each time they use the card, the firm knows where in the country they are. The contents of their purchase are also logged, including items that may be confidential or embarrassingmedication, for example.
People might not wish to have such information widely shared. It was confirmed by the witnesses at the Committee sitting that that information can already, in some circumstances, be shared with the police. So there is an individual, thinking that all they are doing is collecting credit points in order to buy another few bottles of wine or another few chocolate bars, but if the circumstances are such that it is deemed necessary, the state can use that information to track the whereabouts of that citizen. There may be occasions when that is useful and perhaps even desirable, but it is worth while scrutinising in some detail, because many people will have anxieties about that.
It is interesting that we in the United Kingdom seem to have no compunction about giving a great deal of information to the private sector, but we have some
reservations about giving it to the state. As soon as the distinction is blurred, people may regard the issue differently.
The amendment in the other place that attracted most attention was that of Lord Lloyd of Berwick, which was passed by 182 votes to 121, on the use of intercept evidence. I read in one of the Sunday newspapers that the idea of Members of this place considering the use of intercept evidence was a brilliant and original scheme devised by the right hon. Member for Witney (Mr. Cameron), which came as news to me because I had heard Liberal Democrat Members putting forward exactly such a proposal many years before it appeared to come to the attention of the leader of the Conservative party. None the less, I welcome the growing consensus in this House on the use of intercept evidence in some court cases where it is deemed to be necessary and appropriatealthough that consensus seems only to be making a certain amount of progress on the Government Front Bench.
When I recently asked the Home Secretary whether intercept evidence would be a useful measure to tackle terrorism and, by extension, some serious categories of crime, he said:
Let me deal first with the question of intercept evidence in court. We have been looking at that for a considerable time, and both Opposition Front-Bench teams know that the disadvantages so far outweigh the advantages that what they are suggesting meets with complete opposition from our security and intelligence services. They are the front line, charged with the national security of this country. Consistently, time after time, they have made it clear to both Opposition Front-Bench teams that they are opposed to that approach. When those who speak for the Opposition parties make that proposal, they should admit that they are disagreeing with those who are primarily charged with the nations security.[ Official Report, 24 May 2007; Vol. 460, c. 1432.]
I did not properly capture the force with which the Home Secretary made those comments. He was full of scorn and derision for the people who had made that suggestion. At the same time, the Leader of the House, a former Home Secretary himself, was sitting next to the Home Secretary gesturing in a way that suggested that he was extremely supportive of the Home Secretarys view that intercept evidence should not be used in court cases. Then the Prime Minister in waiting, the current Chancellor of the Exchequer, suddenly conveyed a greater interest in seeking to establish a consensus and the goal posts appeared to have moved. If that is the case, we welcome it. It is not necessarily a way of conducting good government, but perhaps once this has been considered at length by right hon. and hon. Members on both sides of the House, the outcome will nevertheless be the desirable one.
Everyone wants serious action to be taken on serious crime. Serious crime has exploded under this Government, but we should not always assume that the legislation that is brought before us has the intended consequences that Ministers claim for it here. Today, I received a written answer from the Under-Secretary, the hon. Member for Gedling (Mr. Coaker), who will be familiar with it, having crafted it in detail and provided it for me. My question was fairly straightforward. On the basis that the Criminal Justice Act 2003 put in place a mandatory five-year sentence for people carrying an illegal firearm, I asked how many of those who have been convicted of carrying an illegal firearm since then have been sent to
prison for five years. One would assume that the answer was 100 per cent., because that is what a mandatory sentence would imply. However, as the Minister will know from the answer that he gave me, the actual figure is 37.9 per cent. In fact, people who have been convicted of carrying an illegal firearm are given, on average, sentences of less than four years, despite the mandatory five-year sentence.
I give that example because such items of legislation keep being put before us, and Opposition parties keep being told that if they do not endorse them in their entirety we are somehow failing in our duty to the citizens of this country. Such is the frenzy, the fury and the volume of legislation that when we return to it a few years later to see whether it had the desired effect that Ministers claimed on the Floor of the House, we tend to find that in reality the story is very different. It is therefore only right to consider the measure in that light and realise that tough talk and eye-catching initiatives but lack of follow-through have made many people in this country cynical about the Government and their ability to tackle crime.
We want action on fraud and serious crime and a Government who respect historic British liberties. We will scrutinise the Bill in detail in Committee, but at this stage, most people who are trying to achieve that balance believe that the measure fails the test.
Mr. Geoffrey Cox (Torridge and West Devon) (Con): As I listened to the debate, I became increasingly concerned by a thought that has been bearing down on me with ever greater force. Our ancestors would have gone to the stake before they allowed such a measure to pass through the House. In itself and cumulatively with other measures, it represents the most massive extension of the states powers that we have experienced for many years.
If the Bill receives a Secondlet alone a ThirdReading, the fundamental safeguards of admissibility of evidence and the protections against the state bringing abusive allegations based on flimsy evidence that are inherent in a criminal trial will be set aside, and a man or women could be found liable for the most serious crimes solely on the basis of written evidence, submitted even in the defendants absence, that he is guilty of a serious crime and is likely still to be committing serious crimes. The burden of proof will not be the criminal standardnamely, that a jury should be sure beyond reasonable doubtbut that a judge is satisfied that the defendant is probably guilty: that, on the balance of the evidence, it is likely that the defendant was involved, as the Serious Fraud Office or the Director of Public Prosecutions contends.
Several hundred years have gone by during which the right to a fair trial in this country was hard fought for and dearly achieved, not only by Conservative and Liberal Members, but Members who sat on the Government side, as it now is. The trade unions and those who fought against the Executive and abuse of power by the Executive struggled for the due process through which the state had to pass to produce a conviction.
The Bill raises fundamental questions of principle. How many of the consequences of conviction is it reasonable to impose on an individual without providing the evidence that can make a jury sure of guilt? Let us
postulate that an individual is the subject of an application by the Director of Public Prosecutions. The Proceeds of Crime Act 2002 provides that his assets can be seized by civil process, provided that it is deemed or proved, on the balance of probabilities, that they are likely to have been acquired by criminal activity.
Lord Commissioner of Her Majesty's Treasury (Kevin Brennan): Quite right too.
Mr. Cox: I do not say that, in itself, such a provision is not right. However, we must ask ourselves whether we have cumulatively reached the point at which so many of the consequences of a conviction are imposed on an individual without trial that we are essentially bypassing the due process that has been achieved through hundreds of years of sacrifice, effort and often blood by our ancestors.
The consequences of the Bill for the individual involve the seizure of his property and the stigma of guilt, because on this sort of evidence he would have to be found liableand finding someone liable means that he would have to be found liable for having committed serious crimes. On the back of that finding by the judge, presumably on written evidence alone, the individual might be able to make representations, but he would not be able to call a fully fledged trial or give his own evidence in oral testimony, as no provision appears to exist for that.
The individual would be liable to have his liberty restricted in ways unprecedented in common law. The provisionsthese are only non-exhaustive examplesallow the court to make an order placing prohibitions and restrictions and all sorts of requirements on his holding of property; his business dealings; his enjoyment of his property; his working arrangements and even the way he communicates with his associates; on the premises to which he has access; on where he lives and on his travel. Short of imprisoning him, what more on earth could be done to restrict liberty without the evidence on which convictions would ordinarily follow, but merely on the balance of probabilities?
With the greatest of respect to the Minister, this Bill imposes on an individual almost all the consequences of a conviction, short of imprisonment. It allows the judge to say where the individual should live, whom he should meet, with whom he should communicate, where he should work and what he should do. Where is the difference in fundamentalssave for the iron bars placed across the windowbetween that and imprisonment? What procedure will be adopted for that? Affidavits will be submitted in secret to a judge, often on information that would never be seen in a criminal court, and based on flimsy second or even third-hand hearsay.
It is not surprising that we should become aware of the voices whom the Government so often treat with disdain and contemptthe shenanigans of defence lawyers was how they were referred to by the Minister for Security, Counter Terrorism and Police, but I refer to them as voices of liberty and justiceand to the voices of the Law Society and the Bar Council. All those voices are raised in protest, concern and anxiety about a Bill that would remove fundamental principles from our public life. Of course they are concernedif we place a weapon of that nature in the hands of the
Executive, its power will inevitably be used in circumstances not contemplated by us. We will have no control over it. We will have no say in how it is implemented. It will be handed to the Director of Public Prosecutions, the director of Revenue and Customs and the director of the Serious Fraud Office and they will decide who is targeted as the subject of these applications.
My hon. Friend the Member for Arundel and South Downs (Nick Herbert) referred from the Front Bench to the Governments intention to ensure that the legislation hits only those describable as Mr. Big, but that is not so. Let us look at the 2006 consultation paper, which makes it as clear as a bell that the Government view this as an alternative to prosecution. I ask the Minister either now or in his summing up to clarify the circumstances in which such a power will be used.
Let us analyse some of the circumstances envisaged in the consultation paper:
circumstances in which civil orders could play a role where prosecution is not feasible, alongside prosecution or as an alternative to prosecution.
It provided examples, referring to
significant numbers of individuals at the fringes who cannot be pursued in the main trial, and for whom a separate trial is not thought worthwhile.
What we are contemplating is the use of those draconian powers to restrict peoples liberty without any admissible evidence, simply because of the expense and inconvenience of bringing them to trial. That is what the consultation paper says. It refers to case management reasons for objecting to over-large trials, saying that it might be preferable to deal with those who are marginally involved by bringing one of these orders rather than prosecuting to trial.
I ask right hon. and hon. Members to reflect for a moment on the significance of that proposition. No longer does evidence have to be brought. No longer do the hard graft of investigation, the assembling of a case and its bringing to court have to be gone through. All that is necessary is to pop along to a High Court judge on the strength of a number of affidavits and get an order against someone. The consequence is that the inconvenience and tedium of bringing through to a trial and persuading 12 ordinary people in a jury box that a man is guilty can simply be circumvented by that device. A man can be virtually imprisoned, his assets stripped, his name and reputation taken away, yet there is no need to bring him to trial.
We are not talking about Mr. Bigs. These are people described in the words of the Governments own consultation paper as essentially peripheral players who might
Next Section | Index | Home Page |