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It is therefore envisaged that orders may be sought as an alternative to a prosecution. This is a road down which we must proceed with caution. Civil orders can have a part to play in combating crime, although the way in which the Government have introduced and implemented such orders in the past hardly makes the case well. The Minister has said that only about 30 such orders are intended to be issued annually and that the main target will be the Mr. Bigs, although the Green Paper talks about orders being applied to
“individuals on the fringes” and “peripheral players”. The point is made that if someone is caught within the ambit of the Bill, clause 4 provides a reverse burden of proof for them to show that they have acted reasonably. The problem is that we do not know how this new power will be applied in practice. Even at this late stage, if the Government are not prepared to accept the amendments, I urge them to provide for a formal mechanism to monitor and renew the orders so that they do not start to be seen as an easy option when a formal criminal prosecution could and should be made to deal with a serious criminal.
Then there are the crimes that are deemed to be serious in the first place in order for an serious crime prevention order to be considered. There is a need for certainty and clarity, and it is right that the offences regarded as serious should be stated in the Bill rather than left open for further interpretation. It seems astonishing, given the increasing threat, its interrelationship with most other criminal activity, and the level of organisation and technological sophistication that now lies behind it, that computer crime is not considered a serious crime and stated in schedule 1. That appears to be a glaring omission when one considers that fishing for salmon, trout or freshwater fish with prohibited instruments is considered under the Salmon and Freshwater Fisheries Act 1975 to be a serious offence. That implies that the Government do not regard computer-enabled cybercrime as serious or a priority.
Such crime hurts more and more people each day, with some surveys suggesting that the public feel more at risk of being the victim of an online crime than they do of any of the other, more high-profile offences. A survey by the Government-sponsored Get Safe Online website asking people of which of a series of crimes they felt most at risk in their everyday lives showed that 21 per cent. identified internet crime—higher than burglary at 16 per cent., mugging at 11 per cent. or car theft at 8 per cent. Online crime is growing fast. According to Get Safe Online, 10 per cent. of internet users were the victims of an online fraud in 2006; the average loss for each individual was £875. It is not just a matter of fraud, but of trojans, viruses and other malware that damage people’s computers, as well as misusing them for botnet attacks on others. There is also identity fraud, where individuals’ personal details and credit card information are harvested by clandestine means and traded as currency among criminal gangs. Such crime undermines confidence in the use of the internet as a trading platform and its role as an effective means of communicating information.
The Government are not immune from attack. The tax credits website was shut after fraudsters used security lapses to make bogus claims and steal the identities of 13,000 staff at the Department for Work and Pensions and Network Rail. It is unlikely to reopen before next year. Business has been hit hard. During the past year, 84 per cent. of large businesses are thought to have suffered a malicious security incident. The Metropolitan police estimate the average losses to a large company of an e-crime attack at anywhere between £65,000 and £130,000, rising to £1 million for a large corporate entity. Against such a background, it seems astonishing that computer-enabled crime should not be considered as serious under the Bill.
On Second Reading, the Minister for Security, Counter-Terrorism, Crime and Policing said:
“This Bill is designed to fill the gaps and lacunae that exist in the law, and its scope does not extend to every crime that, however remotely, could be construed as serious. As I said earlier, the Bill and schedules have been devised precisely to fill what we perceive to be holes in the existing legislation covering serious and organised crime.”—[ Official Report, 12 June 2007; Vol. 461, c. 663.]
I would assert that not including cybercrime in the Bill creates a very big hole, as such crime is serious, organised and poses a significant threat to an increasing number of people, and it should be treated as such. Accordingly, amendments Nos. 81 and 82 would improve the Bill by inserting various offences under the Computer Misuse Act 1990 into schedule 1 to send a clear message to those intent on causing us harm that my party treats the issue extremely seriously, even if the Government do not. I will listen carefully to how the Minister responds and to his explanation of the Government’s position on this issue. It is so serious that if we do not receive appropriate assurances, the matter should be pressed to a Division.
The changes proposed to the serious crime prevention orders by the Government appear largely technical in nature, and do not address the fundamental issues highlighted by us and by the hon. Member for Taunton (Mr. Browne), except for Government amendment No. 3, which deals with the appeal process. That amendment effectively clarifies the appeals process through the criminal division of the Court of Appeal and on to the supreme court, and adds language to the provisions. However, the Government have reserved an order-making power under what will be inserted as clause 24(9) and it would be helpful if the Minister clarified the use of the power, the intention behind it and how it would operate and interact with the new appeal process.
We will listen carefully to the Minister’s response, but there are a number of serious issues relating to the clarity, confirmation and scope of serious crime prevention orders. Even at this late stage, I hope that the Minister will listen carefully to the significant reservations that have been raised tonight and previously, both inside and outside the House, and insert some quite simple measures to give the clarity and certainty that so many people want.
Mr. Gummer: I shall apply myself to the specific issue of certainty and clarity. When the Minister said that the tests would be virtually the same, it raised an important question. If they are virtually the same, why can they not be the same? It is no more difficult than that. I raise that question particularly because other Ministers have often suggested that they are the same. Similarly, in the discussion we had a few moments ago, all the words that I used are used by those who want greater power than they think the House would give them.
I want to explain to the Minister why I think that the issue is very serious. It has always been true that in this country the rights and freedoms of the individual have been restricted for the very best of intentions. It has always been for the highest purposes, and it has always been argued that it has to be done because of the threat of this, that or the other. The hon. Member for Taunton (Mr. Browne) found that he had to say that he
was not in favour of organised crime before he was allowed to go on to say why the issue he raised was so important. I hope that I do not have to say that, but we are almost put into that position, and we have been again and again. I hope that the Minister understands why it is necessary for him to be very precise. During the past 10 years, there has been a succession of Bills in which the freedom of the individual has come second by a long way in the Government’s approach to such issues.
Again and again, whether about juries, the burden of proof and so on, the Government are on the side of authoritarianism. It is sad for me to find, once again, that I am arguing from a position that must be to the left of the Government’s. It is increasingly confusing to people out there that the Government take views that do not start from the presumption that we have to defend people’s rights. The right that we are considering is crucial.
Mr. Jeremy Browne: Does that not show that divisions in politics nowadays are often not between left and right but between libertarians such as the right hon. Gentleman and me, and authoritarians?
Mr. Gummer: I was trying to use good, old-fashioned language so as not to upset the Under-Secretary too much, but the hon. Gentleman may be right. The Government are the most authoritarian Administration that Britain has ever had. No historian would question that.
The hon. Member for Taunton hinted at the importance of the right that we are considering. If we and the Under-Secretary are confused, the innocent person who will inevitably be caught by the measure—I have some interest in that problem—will also be confused. At no point in the process will he or she know the protections that they have, the standard of proof that has to be produced and where the measure stands between the civil and criminal standards of proof. At different times, requirements have moved elegantly between the standards, from “virtually the same” to completely different. The required standard is likely to be informed by the decision in the McCann case.
8.30 pm
Having been a Minister for several years, I know some of the language that civil servants pass to Ministers. The phrase, “is likely to inform” is well known to mean, “I am saying nothing whatsoever, but I want you to take it from me.” It does not mean anything. “Inform” merely means that somebody, in making a decision, either takes the information into account or knows about it in order not to take it into account. It has no genuine meaning.
My problem is that the freedom of the individual is too important to rely either on the direct and clear word of a Minister without being in the Bill or—even worse—on the unclear, indirect, confusing and contradictory words of a series of Ministers. I therefore hope that hon. Members, small though the attendance is for such an important subject—all parties should bear the blame for that—will not allow the Under-Secretary to get away with officialese to cover up the fundamental threat that the measure poses to the freedom of the individual.
The Under-Secretary will get away with it because the people whom we are considering are generally rather nasty. Some are very nasty. We therefore forget that soon, at some point, somebody who is not nasty will be caught up in the provisions. The vagueness means that great injustice can be done. The House is here above all to protect people from injustice. The phraseology that we are considering does not do it. I therefore commend to hon. Members the various amendments, which would at least tighten the measure sufficiently for us to believe that we have done our historic duty in defending individuals against an authoritarian Government, whose authoritarianism is unparalleled since the days of the absolute power of the Crown.
Mr. Coaker: In the time available, I will go through the various amendments. However, I do not propose to go through them in fine detail, not least because, as hon. Members who are present know, we have already debated them in great detail in Committee. They were also debated in equal detail in another place. However, I will first set out the Government’s response to the amendments and, secondly, explain the need for the amendments that we tabled.
One of the key issues that we discussed in some detail during the Bill’s passage is the appropriate standard of proof that should apply to the orders. Amendments Nos. 63, 64, 75 and 76 all touch on that. We debated those amendments at length in Committee, but I accept that hon. Members feel that the point is central to the debate. However, I hope that they will forgive me when I say that I have not changed my mind since then, and that the same arguments for not accepting the amendments continue to apply. I am afraid that I must resist them.
Clause 1 provides an effective and appropriate test to be met by the applicant authority before an order will be granted by the High Court. The test will not be easy to fulfil—and it should not be. It balances the need to protect the rights of the individual with that to protect the public from the harm that some individuals cause. That is the point to which the right hon. Member for Suffolk, Coastal (Mr. Gummer) alluded. There is always a debate about balance and where to draw the line. It is a perennial debate, which has gone on for centuries and will doubtless continue for centuries. They are not about punishing past actions, but preventing future engagement in activities that cause harm to society. For that reason, clause 1 sets out a two-part test that must be met before an order is made by the High Court. The first part of the test is a question of fact: has the proposed subject of the order been involved in serious crime in the past? The second part is a matter of judgment for the court: does it have reasonable grounds for believing that the order will prevent future harm caused by serious crime?
Amendments Nos. 63 and 64 would change the required standard of proof to be discharged in relation to the first limb of the test in clause 1 from the civil standard to the criminal standard of “beyond reasonable doubt”. The appropriate standard of proof for the orders was debated at great length in Committee, as I have said, and in another place. As can be seen from the Hansard report, there was some initial confusion over what having the civil standard of proof
would mean in practice. I tried to clarify that in Committee, but I will attempt to do so again.
The civil standard of proof is a flexible one—I shall come to the right hon. Gentleman’s point in a moment. In the case of McCann, the House of Lords decided that for antisocial behaviour orders the standard of proof that the court should apply when deciding whether a person had acted in an antisocial manner should be the same as the criminal standard—that is, beyond reasonable doubt. To be clear, Lord Steyn said in that case:
“Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are”—
“virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of the magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard.”
We expect similar principles to be applied in relation to orders. We expect the standard of proof in relation to whether a person has been involved in serious crime to be beyond reasonable doubt. The orders are civil orders, so it is right that the civil standard of proof should apply. As a result, I must resist the amendment.
James Brokenshire: The Minister has said that he expects that that standard will apply. Can he state categorically that it is the Government’s intention that that standard should apply? That is an important but distinct point on which we would appreciate some certainty.
Mr. Coaker: To put beyond reasonable doubt what I am saying, the civil court, in making its judgment about such matters, should take into account the case of McCann in the House of Lords. I am not a lawyer, but every time I raise the issue everybody says to me, “Well you ought to read the House of Lords judgment on this.” That is what I am told by barristers and lawyers everywhere—“Read the House of Lords judgment. The House of Lords is the highest court in the land. It will inform the decisions that courts make.” That is exactly what I am doing. I am saying that the courts of the land—the civil courts in this case—should apply the case of McCann in determining what standard of proof they should apply when considering serious crime prevention orders.
No doubt much more eminent lawyers than me—since I am not one anyway—use the words “virtually indistinguishable”. If those words can be used by the House of Lords, which is the highest court of the land, it seems appropriate that I, too, should use the word “virtually”, which is what I have done. If it is the intention of the hon. Member for Taunton to make the applicable standard “beyond reasonable doubt”, the House of Lords has already done that, so the amendment is unnecessary and I hope that he will feel able to withdraw it. Amendments Nos. 75 and 76 appear to go to the same end, so I hope that the hon. Member for Hornchurch (James Brokenshire) will not feel the need to press them.
On amendments Nos. 65 and 66, let me make clear one important point. The Government are dedicated to ensuring that those who commit serious crimes are quickly detected, effectively brought to trial and
punished appropriately. However, amendments Nos. 65 and 66 misunderstand the role that the orders can play. There will not be a direct choice for the Director of Public Prosecutions—or any of the other applicant authorities, for that matter—between pursuing a prosecution, which is punitive, and seeking an order, which is preventive. Orders can be sought independently of, before, alongside or after a prosecution. They will be sought at whatever point in time there is a harm that can be best and most effectively prevented by the imposition of reasonable and proportionate conditions. That does not affect the primacy of prosecution for those who have committed serious crimes. Indeed, one of the reasons we have chosen the applicant authorities that we have, in this part of the Bill, is precisely that they are the best placed to make an assessment of the most appropriate course of action in any particular set of circumstances. For those reasons, I must resist the amendments.
Amendments Nos. 77 and 78 seek to amend clause 1(3), and the similar provision for orders in the Crown court in clause 19, in order to change the word “appropriate” to the term “necessary and proportionate”. The provisions set out the test that the court must apply when deciding on the terms to include in an order. Placing a requirement on the court to act proportionately is unnecessary because it simply reflects a principle by which the court will already abide in making the orders. There is no need to tell the High Court in legislation to be proportionate. As for a requirement for the terms of an order to be necessary, we believe that we have set the standard in clause 1(3), and later in clause 19(5), at the right level. That is because we have struck the right balance in requiring the test to be sufficiently tough to ensure that an order will be proportionate but not so tough that it can never be met. For those reasons, I am afraid that I must resist the amendments.
The hon. Member for Taunton (Mr. Browne) has tabled amendments Nos. 67 and 72. They cover subjects that we debated at some length in Committee, and I have not changed my mind since that debate. We have provided a schedule to show the large majority of the offences in relation to which the use of these orders would be appropriate. Also, within the framework of the schedule, we have provided a discretion for the High Court—or, as the case may be, the Crown court—to treat an offence as serious if, in the circumstances of the case before it, which we cannot know or foresee, it considers the offence to be serious enough to be treated as if it were specified in the schedule.
It is important that we do not fetter the discretion of the courts to adapt to the constant changes around them by looking at the context of an offence and making a fully informed and reasoned decision whether it would be appropriate for that offence to attract an order. Let me give the House an example of why this discretion is necessary. We do not consider it appropriate to include in the schedule offences against the person, such as assault or murder, because they are not suitable for attracting an order in all circumstances. So, I am sure that we can all agree that, when a person assaults another in a simple fight in a pub, these orders would be completely inappropriate. However, when someone has routinely used violence to intimidate and maintain a reign of terror in an area, he might be an appropriate candidate for an order, after serving his sentence, if there is evidence that an order would prevent such crimes from being
committed again. It is the circumstances in which these types of offence are committed that determine whether or not an order is appropriate. The person best placed to make that decision will be the judge sitting in the High Court.
On amendments Nos. 73 and 74, I would like to point out that, in drafting the Bill, we wanted to ensure that any actions of the proposed subject which were reasonable in the circumstances could not be used as the basis for an SCPO. So, for example, there is no doubt that an employee of PC World facilitates serious crime when he sells Mr. X a computer that Mr. X later uses to commit a massive fraud. Mr. X could not commit the crime without that computer. However, to say that the employee should be the subject of an SCPO for those actions would be ludicrous. As a result, we have clause 4(2)(a) and 4(3)(a), which mean that any action that the proposed subject can show is reasonable cannot form the basis for an SCPO. The intent behind the amendments seems to be to force the applicant authority instead to have to show that the actions were unreasonable.
James Brokenshire: In that example of an employee, the Minister has said that it would be up to the employee to show that his actions were reasonable. Does he accept that that would be a somewhat perverse burden in those circumstances, should an SCPO be sought against such an individual?
Mr. Coaker: I do not accept that, for the reasons that the hon. Gentleman knows. We have already debated that matter long and hard.
As I have said, the intent behind the amendments seems to be to force the applicant authority to show that the actions were unreasonable. Whether that is correct depends on one question: who is best placed to know the circumstances surrounding those actions and whether they are reasonable? The answer must surely be the subject. It is important to remember, though, that for this even to be an issue, the applicant authority will already have had to adduce evidence to show that the actions of the proposed subject facilitated, or were likely to facilitate, serious crime. Without having proved the existence of the element of facilitation, the question of whether the actions were reasonable would not arise. So, the proposed subject will not be asked to prove reasonableness in a vacuum; rather, they will need to show that the actions that facilitated the serious crime were reasonable. If I asked my constituents whether it was acceptable to ask someone who has been proven to have facilitated crimes such as drug trafficking or people smuggling to show that their actions were reasonable, I am confident that their answer would be the same as mine. I continue to resist the amendments for those reasons and hope that they will be not be pressed. We have already discussed at some length the civil nature of the orders and I do not propose to go into any further detail now.
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