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8 pm
Mr. Jeremy Browne: I beg to move amendment No. 63, in page 1, line 6, after ‘satisfied’, insert ‘beyond reasonable doubt’.
Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 75, in line 6, after ‘satisfied’, insert ‘so that it is sure’.
No. 65, in page 2, line 3, at end insert—
‘(c) it is informed by the Director of Public Prosecutions—
(i) that there is no reasonable prospect of a successful prosecution of the individual in respect of the involvement in serious crime in question, or
(ii) that such a prosecution would not be in the public interest.’.
No. 64, in line 5, after ‘satisfied’, insert ‘beyond reasonable doubt’.
No. 76, in line 5, after ‘satisfied’, insert ‘so that it is sure’.
No. 66, in line 9, at end insert—
‘(c) it is informed by the Director of Public Prosecutions—
(i) that there is no reasonable prospect of a successful prosecution of the individual in respect of the involvement in serious crime in question, or
(ii) that such a prosecution would not be in the public interest.’.
No. 77, in line 13, leave out ‘appropriate’ and insert ‘necessary and proportionate’.
No. 67, in clause 2, line 38, leave out from ‘1’ to end of line 41.
No. 68, in page 3, leave out line 20.
No. 69, in line 23, leave out from ‘Wales’ to end of line 27.
No. 70, in clause 3, line 47, leave out from ‘1’ to end of line 3 on page 4.
No. 71, in page 4, leave out line 27.
No. 72, in line 30, leave out from ‘Ireland’ to end of line 34.
No. 73, in clause 4, page 5, line 5, leave out from ‘must’ to end of line 9 and insert
‘determine that the defendant acted unreasonably in the circumstances’.
No. 74, in line 13, leave out from ‘must’ to end of line 17 and insert
‘determine that the defendant acted unreasonably in the circumstances’.
No. 78, in clause 19, page 12, line 34, leave out ‘appropriate’ and insert ‘necessary and proportionate’.
Government amendments Nos. 1 to 10, 84, 12 and 13.
No. 79, in clause 35, page 25, line 20, leave out subsection (2).
No. 80, in line 25, leave out from ‘is’ to ‘that’ in line 27.
Government amendment Nos. 16 and 17.
No. 81, in schedule 1, page 56, line 27, at end insert—
13A An offence under section 1 of the Computer Misuse Act 1990 (unauthorised access to computer material).
13B An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate the commission of further offences).
13C An offence under section 3 of the Computer Misuse Act 1990 (unauthorised modification of computer material).’.
No. 82, in page 60, line 31, at end insert—
25A An offence under section 1 of the Computer Misuse Act 1990 (unauthorised access to computer material).
25B An offence under section 2 of the Computer Misuse Act 1990 (unauthorised access with intent to commit or facilitate the commission of further offences).
25C An offence under section 3 of the Computer Misuse Act 1990 (unauthorised modification of computer material).’.
Government amendments Nos. 22 and 47.
Mr. Browne: Most hon. Members, particularly those who sat through our extended periods in Committee, will accept that amendment No. 63 relates to the crux of this legislation—the principal reason why my party and I are uncomfortable with the Government’s proposals.
The amendment has a simple purpose: to put the criminal standard of proof into the Bill. At the moment, the Government insist that serious crime prevention orders are a preventive, not punitive, measure and that therefore the civil standard of proof is appropriate. However, I remind hon. Members that the sanctions for those who fall foul of the proposals are severe indeed: people’s travel can be restricted, within the United Kingdom as well as abroad, and they may also be restricted in where they can work, live and visit. Short of sending people to prison, pretty much every imaginable restriction on the liberty of the citizen may be involved, and if people fail to comply with the orders, the sanctions extend as far as a prison sentence. In some cases somebody contravening the orders might go to prison despite never having committed a criminal offence or having been found guilty according to a criminal standard of proof.
Furthermore, the orders can apply for anything up to five years—indeed, they are more draconian than that, because the five-year period is indefinitely renewable. Somebody could have a most severe restriction on their liberty for the remainder of their life without having committed a criminal offence or having been found guilty by any criminal standard of proof. The amendment addresses head-on that lack of legal certainty.
Baroness Scotland said in the other place:
“the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of ‘beyond reasonable doubt’ ”.—[ Official Report, House of Lords, 7 February 2007; Vol. 689, c. 729.]
Let us stop for a moment, as we did in Committee, and consider that statement to ascertain whether it is satisfactory in respect of the protection of the citizen’s liberty. The Baroness mentioned a “sliding scale”; that will ring alarm bells with some people straight away. She talked about the “likely”—another qualification—standard of proof being “very close” to the criminal standard. Everyone will note that she did not mention “the criminal standard”, merely one “very close” to it.
The Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker) said during earlier deliberations on the Bill:
“On clause 1(1)(a), we would expect the standard of proof to be virtually identical to that for criminal proceedings” ——[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 19.]
Again, the caveat is entered: not identical, but “virtually identical”. On Second Reading, the Minister for Security, Counter-Terrorism, Crime and Policing said:
“we expect that the standard of proof required in relation to the question of whether a person has been involved in serious crime will be the same as in criminal cases”—[ Official Report, 12 June 2007; Vol. 461, c. 664.]
However, that standard has not been put into the Bill; at present, according to the verbal guidance given by most Ministers, we are some way short of the criminal standard of proof. We do not know how far short we are, and it is difficult to know how the legislation will be enacted in practice, but we do know, or appear to know, that the criminal standard of proof will not have to be met for people to be subject to the restrictions on liberty and sanctions in the Bill.
To broaden my point, I shall briefly go through the scope of some of those sanctions. First, as I have mentioned, they are very wide ranging; we are not talking about a slap on the wrist. They have been called “gangster ASBOs” in tabloid parlance, although the punishment that they carry has a far greater effect than ASBOs themselves. Secondly, the sanctions are too easy as an alternative to prosecution. No one is more in favour than I am of trying to arrest and detain someone involved in crime—drawing the evidence together and putting it before a court with a jury of the person’s peers. If such a person can be proved to be guilty, a criminal prosecution should be sought. However, I feel far more uncomfortable with the Bill’s underlying assumption: that we essentially know who is breaking the law, but we do not have enough evidence to prove it, so we will make legislation that means that we do not have to come up with such evidence, because we can restrict those people’s liberty severely without needing to prove that they have done anything wrong.
If anything, the opposite to the norm is often the case: the accused person has to demonstrate that they have not done anything wrong, rather than the other way around. A person need never have committed a crime to fall foul of the Bill, and in my party we do not regard that as a sufficient safeguard. The amendment gets to the absolute essence of the legislation, and I am keen not only to speak to it but press it to a Division so that we can try once again to put a criminal standard of proof into the Bill. I urge the Government to consider that point seriously.
James Brokenshire:
The Government have sought to clarify their position on the standard of proof to be applied in considering serious crime prevention orders,
but the wording of the Bill rather muddies the waters, which is why further clarity is necessary.
The starting point for the standard of proof that is to be applied in deciding whether a person has been involved in serious crime is the Government’s Green Paper, “New powers against organised and financial crime”, which was published in July 2006. Paragraph 3.1 states:
“The courts would be able to impose an order if they believe on the balance of probability that the subject
Has acted in a way which facilitated or was likely to facilitate the commissioning of serious crime
That the terms of the order are necessary and proportionate to prevent such harms in future.”
“we would envisage stating on the face of the legislation that to impose an order the courts should be satisfied on the balance of probability that the test is met.”
Clauses 35(2) and 36(2) are incorporated in the Bill precisely to give effect to that stated intention, as they make it clear that the standard of proof to be applied by the High Court and the Crown court is the civil standard of proof—in other words, the balance of probabilities test, or, in simple language, “Was it more likely than not?”
However, the Government have said that despite the language used in the Bill, things have moved on, and they would expect the House of Lords judgment in the case of McCann, which related to antisocial behaviour orders, to apply to serious crime prevention orders, with the effect that the aforementioned sliding scale would be adopted, incorporating something close to the criminal burden of proof. As the Minister said in Committee,
“For clarity, let me say that we expect that, with respect to clause 1(1)(a), the standard of proof, as laid out in the McCann judgment, would be virtually identical to the criminal standard of proof.”
“as far as the Government are concerned, the judgment in McCann in the House of Lords will inform the practice when it comes to the implementation of serious crime prevention orders.” ——[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 17-18.]
So the expectation is that the McCann judgment would apply or that it would “inform the practice”. What has not been said is that that will be the practice. That is why I remain of the view that it is important, for the sake of certainty and clarity, to avoid the need for case law, and for interpretation to make this relatively simple issue clear in the Bill by way of the amendments.
Mr. John Gummer (Suffolk, Coastal) (Con): Does my hon. Friend agree that when something like this is not made clear, it means either that the Government have not made up their own mind about what they want or that they do not want it to be clear? In the end, the judgment is based not on the Minister’s words but on the words in the Bill. I am worried that we are instigating a procedure that is justifiable only on the basis of the normal criminal measurement of guilt, and pretending that it is almost that although it is actually something much less.
James Brokenshire:
My right hon. Friend makes an extremely powerful and effective point. It is extremely strange that this simple and narrow point has not been taken on board in the language of the Bill. As the
Minister will see from the amendments, it does not require a huge amount of drafting to clarify the burden of proof required to demonstrate that somebody has been engaged in or involved in serious crime. One must therefore question why there is such reluctance to take that on board and to make the changes that we believe are necessary. We think it appropriate for the situation to be made clear in the Bill, and our amendments Nos. 75, 76, 79 and 80 would give effect to that.
The Government have said throughout the passage of the Bill that the orders in part 1 are intended to be a preventive civil tool rather than a punishment. Indeed, as we have already discussed, that approach is essential to compliance with the European convention on human rights. There is little doubt, however, that these orders could be extremely wide ranging in nature and scope and be quite draconian. That point has been rehearsed on many previous occasions on Second Reading and in Committee, and I do not intend to delay the House unduly with it. However, given the need to make it clear that the powers should be used in a preventive way, it is important that this House states that the terms of the order should be “necessary and proportionate” in order to prevent the harm of serious crime. This is not about questioning the integrity of the court but about providing a clear statement of purpose which should aid compliance with article 6 of the ECHR.
8.15 pm
Mr. Coaker: I am glad that the hon. Gentleman added that rider. He must have suddenly realised, when he said that he hoped that the orders were proportionate, that he was suggesting by implication that the High Court—which is, as he knows, a public authority for the purposes of the Human Rights Act 1998—would be acting in a disproportionate way.
James Brokenshire: By using the word “appropriate”, the Minister is suggesting that the High Court would operate in an inappropriate way; otherwise, he would not have put the word in the Bill in the first place. I do not accept his argument. For the purposes of clarity, “necessary and proportionate” sums up very clearly what we believe should be stated in the Bill.
There remains a genuine concern that the orders may be used in a way that subverts or replaces the existing criminal process. Paragraph 3.2 of the Green Paper notes:
“As with other disposals available to agencies like the FSA, those deciding whether to prosecute or pursue a civil order will need to decide which disposal is most likely to reduce harm in the long run, while taking due account of the public interest in prosecutions.”
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