 House of Commons |
Session 2006 - 07 Publications on the internet General Committee Debates Serious Crime Bill [Lords] |
Serious Crime Bill [Lords] |
The Committee consisted of the following Members:Emily
Commander, Chris Shaw, Committee
Clerks
†
attended the Committee
Public Bill CommitteeTuesday 26 June 2007(Morning)[John Bercow in the Chair]Serious Crime Bill [Lords]10.30
am
The
Chairman:
I remind the Committee that there are money and
legislative consent resolutions in connection with the Bill; copies are
available in the room. I also remind Members that adequate notice
should be given of amendments: as a general rule, I and my fellow
Chairman do not intend to call starred
amendments.
Order
ed,
That—
(1)
The Committee shall (in addition to its first meeting at 1030 an. on
Tuesday 26th June)
meet—
(a) at
4.30 p.m. on Tuesday 26th
June;
(b) at 9.00 a.m.
and 2.00 p.m. on Thursday 28th
June;
(c) at 1030 a.m.
and 4.30 p.m. on Tuesday 3rd
July;
(d) at 9.00 a.m.
and 2.00 p.m. on Thursday 5th
July;
(e) at 10.30
a.m. and 4.30 p.m. on Tuesday 10th
July;
(2) The
proceedings shall be taken in the following order: Clauses 1 to 3;
Schedule 1; Clause 4; Schedule 13; Clauses 5 to 36; Schedule 2; Clauses
37 to 46; Schedule 3; Clauses 47 to 49; Schedule 4; Clauses 50 to 56;
Schedule 5; Clauses 57 and 58; Schedule 6; Clauses 59 to 67; Schedule
7; Clause 68; Schedules 8 and 9; Clauses 69 to 71; Schedule 10; Clauses
72 and 73; Schedule 11; Clauses 74 to 77; Schedule 12; Clauses 78 to
81; Schedule 14; Clause 82; Schedule 15; Clauses 83 to 85; new Clauses;
new Schedules; remaining proceedings on the Bill;
(3) the proceedings shall (so
far as not previously concluded) be brought to a conclusion at 7.00
p.m. on Tuesday 10th July.—[Mr
.
Coaker.]
Order
ed,
That—
subject
to the discretion of the Chairman, any written evidence received by the
Committee shall be reported to the House for
publication.—[Mr
.
Coaker.]
Clause 1Serious
crime prevention
orders
Mr.
Jeremy Browne (Taunton) (LD): I beg to move amendment
No.1, in clause 1, page 1, line 6, after ‘satisfied’,
insert ‘beyond reasonable
doubt’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 16, in clause 1, page 1, line 6, leave out
‘satisfied’ and insert
‘certain’.
No.
51, in clause 1, page 1, line 8, leave
out
‘it has reasonable
grounds to believe
that’.
No. 17,
in clause 1, page 1, line 8, leave
out
‘has reasonable
grounds to believe’
and
insert ‘is satisfied’.
No. 2, in clause 1, page 1, line
12, after ‘satisfied’, insert ‘beyond reasonable
doubt’.
No. 52,
in clause 1, page 2, line 1, leave
out
‘it has reasonable
grounds to believe
that’.
No. 119,
in clause 20, page 12, line 25, leave
out
‘it has reasonable
grounds to believe’
and
insert
‘is satisfied
beyond reasonable
doubt’.
No.
124, in clause 21, page 13, line 15, leave
out
‘has reasonable
grounds to believe’
and
insert
‘is satisfied
beyond reasonable
doubt’.
Mr.
Browne:
This is the first time since I was elected two
years ago that I have served as a member of a Bill Committee, and it is
a privilege to do so under your chairmanship, Mr. Bercow. I
hope that others will bear what I have said in mind if there are any
glitches in my performance during the ensuing
weeks.
I am throwing
myself into the deep end by getting to the nub of matters at the start
of the Committee’s consideration of the Bill. I shall explain
why I consider this group of amendments to be of such import. The
essential point is this: in order to fall foul of the Bill’s
provisions, the court needs to be satisfied only that a person has
committed an offence or may commit an offence. That is not a
sufficiently rigorous threshold, which is why the amendment would,
after “satisfied”, add “beyond reasonable
doubt”. I shall give the Committee a little background and
explain my
motivation.
First, I
shall tell the Committee about some of the representations that have
been made. Kirsty Brimelow, the spokesperson for the Bar Council,
said:
“The
tortuous logic appears to be that the word ‘prevention’
means that restrictions are not punitive. This is word play and the
logic is fallacious.”
The
Criminal Bar Association said that one would need an “astute
gymnastic mind” to be convinced of the provisions. John Stalker,
a notable former deputy chief constable of Greater Manchester who
appears regularly in the media, said
that
“super-ASBOs, as
these are being called, are not the answer to heavyweight criminals.
They may be OK for hoodies on the
street”
but that they
were not appropriate for heavyweight
criminals.
So a person
need not commit a criminal offence and need not be found guilty by a
jury “beyond all reasonable doubt”. I was led to believe
when I was growing up—and people still believe it to be the case
today—that people expected such a threshold if their liberties
were to be curtailed. All that is needed under the Bill is for the
court to be “satisfied” in that regard. If people
subsequently breached what John Stalker called the super-ASBO, criminal
sanctions could follow even though the person had not been found guilty
of an offence to that standard or burden of proof. That is my motive
for moving the amendment.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I support
the hon. Gentleman’s remarks. I have tabled a number of
amendments in this group, one of
which is in the same terms as those used by the hon. Gentleman in moving
the lead amendment. The purpose of my amendments is to enhance the
standard of proof required before the order can be made. The Committee
will see that I have incorporated the higher standard of proof with
regard to both of the elements set out in clause 1, which is to say
that the court must be satisfied not only that it is beyond reasonable
doubt that the individual has been involved in serious crime, but,
secondly and differently, that the order would protect the public in
the way set out in the Bill.
It is important to understand
how far-reaching the orders are. For that purpose, we need to look at
clause 6, which sets out the consequences of an order. Until one has
addressed those, one cannot understand how important it is to have a
high standard of proof for the making of the order. If one looks at
subsection (3), one will find that the orders are among the most
draconian ever contemplated by the legislature in this country. The
power of the court is not confined to the making of the orders in
subsection (3); they are but examples. It says:
“Examples of
prohibitions, restrictions or requirements that may be imposed on
individuals (including partners in a partnership) by serious crime
prevention orders include prohibitions or restrictions on, or
requirements in relation
to—
(a) an
individual’s financial, property or business dealings or
holdings;
(b) an
individual’s working
arrangements;
(c) the
means by which an individual communicates or associates with others, or
the persons with whom he communicates or
associates;
(d) the
premises to which an individual has
access;
(e) the use of
any premises or item by an
individual;
(f) an
individual’s travel (whether within the United Kingdom, between
the United Kingdom and other places or
otherwise).”
The
Committee needs to understand that an order made under those provisions
will wholly restrict a person’s liberty in every material way.
It could be used to prevent him from earning his living; to prevent him
from travelling; to confine him to a particular part of the United
Kingdom; to prevent him from living in his own house; to prevent him
from visiting another person’s house; to prevent him from
talking to individuals; to prevent him from using his bank, and so on.
It is some of the most draconian legislation that I have had the
misfortune to see.
Those are facts. In what
circumstances should such draconian orders be made? Let us consider the
order-making power that is set out in clause 1, to which the hon.
Gentleman referred. He was absolutely right: such orders can be made in
respect of a person who has committed no substantive offence of any
kind, because that is the effect of subsection (1)(a) and (b). The
definition of involvement in serious crime is set out in clause 2; it
embraces convictions, to which we will come shortly, but it also
embraces such offences as
facilitating
“the
commission by...another person of a serious
offence”.
Incidentally,
the definition of a serious offence in the schedule includes unlawful
fishing and other such examples.
Let us stand back and consider
the matter seriously. Through the Bill, the Government propose to
incorporate the most draconian restrictions that one
can readily contemplate, in respect of people who have committed either
fairly trivial offences or no offence whatsoever. I ask rhetorically:
is that what this House should do? I hope that the answer is no, it is
not.
The
Parliamentary Under-Secretary of State for the Home Department
(Mr. Vernon Coaker):
Notwithstanding the right
hon. and learned Gentleman’s passion, does he believe that the
High Court, which is a public authority for the purposes of the Human
Rights Act, will put into place an order that will do the things that
he is suggesting to this Committee that it would do, which would be
totally disproportionate and at odds with the Human Rights Act? Does he
really think the High Court would do
that?
Mr.
Hogg: It is the business of Parliament to safeguard the rights of
the citizen. Of course we trust the courts to act justly; we need to
set out the criteria by which they will have to implement the
order-making power. Incidentally—we will come to this
shortly—this Bill does not provide any proper criteria of any
kind to guide the courts. That is why I tabled amendments, one of which
includes the word “proportionate”, which the hon.
Gentleman has just used, which does not appear in the Bill as drafted.
As the hon. Gentleman used my word, I hope he will support my
amendment, because it reflects exactly the policy that he is
articulating.
The
truth is that it is the business of Parliament to safeguard the
liberties of the subject; the courts have an important role to play,
but the plain fact is that if you give power to anybody there is a risk
that it will be abused. That is why, as a matter of principle, we
should give the minimum power that has to be extended in a democratic
society for the good of society. I am not in favour of giving powers
that are capable of being
abused.
I
return to my point: the Bill creates the power to make draconian orders
in respect of trivial offences—or things that are not offences
at all. That being so, how can we remedy it, other than having a stand
part debate and excluding clause 1? It is a matter for the Chairman,
Mr. Bercow, but I hope that we will have lots of stand part
debates on clause after clause. One very important step is to ensure
that the courts cannot make these orders unless they are satisfied
beyond a reasonable doubt that the criteria are made
out.
Jeremy
Wright (Rugby and Kenilworth) (Con): I entirely agree with
my right hon. and learned Friend’s argument, that the safeguard
for the criminal standard of proof is necessary. Does he agree that one
of the reasons for that is that when one considers the proposed offence
of facilitating the commission by another person of a serious offence,
paragraph 33 of the explanatory notes makes it clear that subject to
any consideration of whether what the respondent has done is
reasonable,
“the court
must ignore the intentions and other aspects of the mental state of the
respondent at the time of the act in question. This means that it does
not matter if the respondent did not, for example, intend to facilitate
the commission of a serious offence, or had no knowledge that he was
conducting himself in a way that was likely to facilitate serious
crime.”
In those
circumstances, all the safeguards we can possibly have are entirely
appropriate.
Mr.
Hogg:
My hon. Friend is entirely right; he is anticipating
some of our later debates. He will see that in amendments that appear
further down the selection list I have incorporated the phrase
“knowingly and intentionally” with regard to the
facilitation offence, and I have also taken up the particular point
that my hon. Friend made, to so amend the Bill that the court is
directed to have regard to the intention and knowledge. We will come to
that debate
shortly.
My
hon. Friend has highlighted the fact that the facilitation offence is
strict liability in respect of something that is not an offence known
to the criminal law and which exposes the respondent to extremely
draconian risks. We need to tighten up the legislation to try to ensure
that the courts act only when they are satisfied beyond reasonable
doubt.
I have no
difficulty with my hon. Friend’s word “certain;”
the word “sure” could be incorporated, but some form of
higher standard is
required.
I am well
aware that the Minister is likely to say, “What about the case
of McCann?” As the Committee knows, McCann is a case in the
Court of Appeal that relates to antisocial behaviour orders. It is true
that the courts apply a higher standard of proof in respect of a range
of matters that are quasi-criminal. In the McCann case, the House of
Lords indicated that the standard of proof should be virtually the same
as the criminal standard.
When this matter was debated in
the other place, it was conceded that the standard of proof is always
on a sliding scale: sometimes it is the full standard of proof, as
required in a criminal case; sometimes it is not, and sometimes it is
virtually the full standard. It depends on the facts of the particular
case and the degree of criminality being
asserted.
10.45
am
However, the
important thing is to say this; we should not leave this matter to the
court. If I am right in saying that this is a matter of fundamental
importance, then we should incorporate the required standard of proof
in the
legislation—
We should incorporate the
required standard of proof in the legislation and not leave it
exclusively to the courts. May I remind the Committee that, from time
to time, we discuss the discretion of the courts, for example under the
tariffs for mandatory life sentences? This House has said to the
courts, “We do not leave to your exclusive discretion the
minimum tariffs to be imposed for life sentences, because we think that
these things should be determined by this House”. That is my
view with regard to this particular measure in this Bill; it should be
determined by this House and not left to the
courts.
Mr.
Browne:
I wonder what the right hon. and learned Gentleman
thinks about the observations made by Baroness Scotland in the other
place on this very issue. I think that it was in the debate on Second
Reading that she
said:
“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.]
Does the right hon. and
learned Gentleman share my concern that there are a lot of
mealy-mouthed words in there? For example,
“the likely standard of
proof”
and “very
close” are not quite close enough.
The
Chairman:
Order. I am listening intently to what the right
hon. and learned Gentleman is saying, but I must implore him to speak
from behind his desk, rather than to perambulate around the room; that
is not in order. So, if he would speak from his position in the way
that every other Member does, that would be very
helpful.
The problem
that Baroness Scotland faced in the other place was this; although the
proposition that in serious cases involving criminality the court will
generally impose something approaching the highest standard of proof is
a correct one, it is a sliding scale, as she herself acknowledged. I
think that the sliding scale will vary depending upon the nature of the
consequences incorporated in the order and the nature of the
criminality being asserted. Therefore, she could not be more positive
than that in her assessment. However, what both she and the hon. Member
for Taunton are right in saying is that we do not know for certain the
standard of proof that the court will require in respect of the
order-making powers, and we need to know that. That is our duty, and I
say that anybody who argues otherwise is failing in their
duty.
There is
another point; it is the last point that I am going to make on this
particular measure. I can see prosecution authorities coming to the
conclusion that it would be better to use the order-making power than
to institute prosecutions, because if one looks at the order-making
power itself one will see that, in reality, one can impose a whole
range of penalties upon people against whom it is not possible to
secure a conviction. It is even worse than that, because if one looks
yet further within the Bill, one can see that the orders can be rolled
over, year after year after year. So let us pause just for a moment and
note this fact; prosecution authorities may well be tempted to use this
power, because there is a lower standard of proof required, they can
achieve very much the same effect in terms of penalty and the process
can go on for very much longer. Of course, it can also be used in
respect of unlawful fishing too, if people were foolish enough to try
that. Now, is that really something that the House of Commons should be
promoting? I leave that question hanging in the air, because the answer
is, “Manifestly not.”
Nick
Herbert (Arundel and South Downs) (Con): I agree with the
hon. Member for Taunton, who tabled this amendment, and with my right
hon. and learned Friend the Member for Sleaford and North Hykeham,
that this is a very important amendment, as it goes to the heart of what
clause 1 and part 1, which deal with the operation of serious crime
prevention orders, are about.
I agree with both of them that
the reason we should be concerned about the evidential
burden—which is what the amendment and indeed very similar
amendments that I tabled which would have had largely the same effect
as the hon. Gentleman’s amendment are about—is because of
the very serious nature of the potential offences that are created by
breach of these orders and because of the nature of the restrictions
that can be placed upon an individual’s freedom as a consequence
of these orders.
The
orders are very wide-ranging in their scope. Clause 2 makes it clear
that the involvement in a serious crime, which must be demonstrated if
an order is to be made by the High Court, does not need the
commissioning of any criminal offence. Indeed, the definition of
“serious offence”—the list of potential serious
offences—includes one that is actually determinable by the court
itself. We will come to all these issues in later amendments.
The restrictions that the High
Court is able to enforce in the making of a serious crime prevention
order are very serious ones. There is a non-exhaustive list of the
potential restrictions in the Bill. They include specifically under
clause 6(6) restrictions relating to the occupation by the individual
of their own private dwelling. Those restrictions can also apply to
third parties who may be affected by the serious crime prevention
orders but are not subject to them.
The penalties are very serious.
Breach of these orders carries a criminal sanction: under clause 26 a
fine or a term of up to five years’ imprisonment. As my right
hon. and learned Friend observed, these orders can last for five years
and they are renewable indefinitely. No system of review of the
operation of these orders has been proposed under the Bill by this
place or anybody else. Again, I hope we will come to these matters in
later amendments. All of this demonstrates that the nature of these
orders requires us to be very careful indeed before allowing this
incursion into the civil law of what is a quasi-criminal
remedy.
Indeed, I
should observe that some of the restrictions that can be placed on
individuals under the operation of serious crime prevention orders are
actually more restrictive than those relating to control orders, where
a review process is permitted under legislation.
So the question is, given that these are
civil orders, not criminal orders, but ones which carry a serious
criminal sanction should they be breached, what is the correct
evidential burden? To what extent should the court be satisfied that
there has been some involvement in serious crime? Should they be
satisfied to the criminal standard which is beyond reasonable doubt, as
we propose in the amendment—an alternative wording I proposed is
that the court should be certain—or is it acceptable that the
far lower civil standard on the balance of probabilities should be
applied, in other words that the court need only believe that it is
likely that the person had been involved in serious crime, bearing in
mind this very wide definition of what the nature of that involvement
can be and bearing in mind that no offence need have been committed for
the person to have been so involved?
Mr.
Coaker:
May I point out to the hon. Gentleman that clause
1(1)(a) may be an example of where you would expect the evidence to be
beyond reasonable doubt. If, however, he looks at clause 5(2)(a), which
is where a respondent is saying to a court that is trying to impose a
serious crime prevention order that, in fact, their behaviour was
reasonable and not unreasonable, it is perfectly proper in those
circumstances for the standard of proof not to be “beyond
reasonable doubt”, in other words the criminal standard, but to
be “on the balance of probabilities”. That would be
fairer to the respondent in the case.
Nick
Herbert:
I am grateful for the Minister’s
intervention, but I do not think that that matter is in dispute, is it?
What we are talking about is what the evidential burden should be in
the initial making of the serious crime prevention order, not when the
defendant responds to the court.
Mr.
Hogg:
Before my hon. Friend welcomes the suggestion made
by the Minister, perhaps he would look a little more carefully at
clause 5(2)(a). He will see that there is a reverse burden of proof;
that the burden is actually on the respondent rather than on the Crown.
In any event, it is in respect of the facilitating offence, which is
not an offence known to the law. So what the Minister is actually
requiring is that, in respect of an act that is not an offence known to
the law, there should be a reverse burden of proof on the respondent to
show that what he was doing was reasonable.
Nick
Herbert:
I agree entirely with my right hon. and learned
Friend. However, that matter is not the subject of this amendment and
not what we are discussing. We are discussing clause 1 and the original
evidential burden that will be necessary for the making of one of these
orders. No doubt, we will come on to that issue of the reverse burden
of proof in clause
5.
So, should we allow
these orders to be made on the balance of probabilities, or should we
allow them to be made only where there is evidence beyond reasonable
doubt that the person concerned has been involved in serious
crime?
Part of the
problem here has been that the Government have not been clear about
what they intend in relation to the legislation. Part of the purpose of
this amendment is to get the Government to be clear about what they
mean, and to put in the Bill a measure that I think most hon. Members
would like to see in relation to the evidential burden.
My right hon. and learned
Friend has already raised the issue of the McCann judgment, which has
also been raised by a number of external organisations, including
Liberty. During the Second Reading debate on 12 June, the Minister for
Security, Counter Terrorism and Police went to the trouble of trashing
Liberty’s briefing on this issue. He did so in a very
uncompromising manner. He quoted the part of the briefing that
said:
“The
Government may hope that these orders are a way of getting round the
presumption of innocence because the applicable standard of proof will
be the lowest civil standard of ‘on the balance of
probabilities’”.—[Official Report, 12 June
2007; Vol. 461, c. 664.]
That was Liberty’s fear—that
the rules of evidence that should be applied in relation to these very
serious orders would not be applied, and that the lower test would
apply, that of
“on the
balance of
probabilities.”
The
Minister for Security, Counter Terrorism and Police went on to
say:
“That is
absolutely wrong. My noble and learned Friend Baroness Scotland stated
categorically in the other place that, in keeping with the House of
Lords judgment in the case of McCann, 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, namely
‘beyond reasonable doubt.’ Liberty’s assertion is
thus entirely unfounded—a bit of a
shame.”—[Official Report, 12 June 2007; Vol. 461,
c. 664.]
If that is
the case and if we are to take the word of the Minister for Security,
Counter Terrorism and Police for it, as expressed on Second Reading,
that the test is to be “beyond reasonable doubt”, what
possible objection can the Government have to the inclusion of those
words in the Bill by this amendment? What possible objection could they
have, given that that is the test that the Minister has said would
apply?
In fact, the
Minister, disgracefully, misquoted what Liberty actually said. Liberty
made it clear that there was a caveat. Although it said it was clear
that the Government intended originally to apply the test of the
balance of probabilities, it pointed to the McCann judgment and
noted:
“In the
context of ASBOs this does not seem to have worked...The Courts
have developed a heightened civil standard of proof which Lord Bingham
has described as, for all practical purposes, indistinguishable from
the criminal
standard”.
Therefore, it
is the McCann case we should turn to, because, as the hon. Member for
Taunton pointed out, contrary to what the Minister said on Second
Reading, Baroness Scotland, the Minister in the House of Lords, was
talking not about beyond reasonable doubt being the correct evidential
burden for the clause but the balance of probabilities when she said
that there should be a sliding scale. She
said:
“I thank
those who have acknowledged the sliding scale in relation to the
balance of probabilities.”—[Official Report, House of
Lords, 7 February 2007; Vol. 689, c.
764.]
11
am
Mr.
Hogg:
It is interesting in this context to consider
clauses 34 and 35, where the Bill makes it plain that proceedings
before the High Court and proceedings before the Crown court are civil
proceedings. When the Bill was originally drafted, the Government had
it in mind to use, if they could, the civil, bare standard of proof;
that is why, inter alia, they put this in the
Bill.
Nick
Herbert:
My right hon. and learned Friend is absolutely
correct. We do not have to rely only on our interpretation of the Bill
to realise that; we can refer to the Green Paper, “New Powers
Against Organised and Financial Crime”, published last July, in
which the Government proposed serious crime prevention orders for the
first time. On page 32, paragraph 3.4 of the document, they deal
specifically with the standard of proof. The Government point out that
standards of
proof vary for the various civil orders on the statute book. In the case
of terrorist control orders the basis of the proof is reasonable
suspicion; for ASBOs, which are analogous to the serious crime
prevention orders, although the orders are civil, the legislation
refers to proof being necessary. The McCann judgment has imposed a
standard not far from the criminal one. Paragraph 3.4 of the document
continues:
“We
believe these varying standards usefully reflect the different levels
of threat posed to society by terrorism and anti-social behaviour. In
the case of organised crime, the potential harms are somewhere between,
and 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.”
The
document says that the test should be on the balance of probability,
the Minister in the House of Lords says that there is a sliding scale
in relation to the balance of probabilities, but the Minister in the
House of Commons tells us that the test is beyond reasonable
doubt.
We should not
underestimate the importance of clarity in this matter; we are talking
about restrictions in relation to people’s lives, which could be
immensely onerous, and about whether a court has to decide that it is
likely that a person has been involved with serious crime—in
other words, there may be only a 51 per cent. chance that that person
has been involved in serious crime—or whether the court is
certain that they have.
On that test will fall the
operation of these orders and the very serious conditions that can be
attached to them; freedom of assembly, which is granted under magna
carta will be compromised, and breaches of those conditions will be
very serious criminal offences. The lack of clarity in this matter is
very serious. These are not nice legal points; they go fundamentally to
the operation of these
clauses.
The Minister
referred to the McCann judgment, which is immensely important because
it set what should be the correct evidential burden in relation to
ASBOs. The first thing to say about the McCann judgment is that it
specifically related to ASBOs, so we do not know that it will be used
by the courts in relation to serious crime prevention
orders.
Mr.
Hogg:
What is more, it is quite plain from paragraph 3.4
of the White Paper that the Government was taking the view that you
cannot necessarily transfer the McCann judgment to the power now under
discussion because in that paragraph the distinction is made between
ASBOs and these powers. With respect to these powers, the Government is
saying that they hope, notwithstanding ASBOs, that the balance of
probability will be the test used.
Nick
Herbert:
Again my right hon. and learned Friend is exactly
right. We cannot therefore expect the courts to rely on what has been
said in this place or what Ministers may have said when setting the
burden when it has been made quite clear that the burden is to fall
below the standard of “beyond reasonable doubt”. That is
in effect what is implied in the Bill and that is what was said
directly in the White
Paper.
The McCann
judgment in any case was completely unambiguous. There was no sliding
scale, to use the
words of the Minister in the other place in relation to the McCann
judgment. Lord Stein, in delivering his judgment in McCann in relation
to the standard of proof
said:
“In my
view, pragmatism dictates that the task of magistrates should be made
more straightforward by ruling that they must in all cases under
section 1”—
that
is the section under which ASBOs can be
made—
“apply the
criminal standard in all
cases.”
There
is no sliding scale in relation to that. That view was echoed in the
other judgment that was given on this matter by Lord Hope who
said:
“I would
hold that the standard of proof that ought to be applied in these cases
to allegations about the defendant’s conduct is the criminal
standard.”
So
we have the extraordinary proposition in this Bill, if the Minister
will not accept this amendment or clarify that “beyond
reasonable doubt” is the correct test, that in the making of an
ASBO the courts will, when following the McCann judgment, have to apply
an evidential burden which is, to use the words of Lord Chief Justice
Bingham, indistinguishable from the criminal standard. They will
therefore effectively have to be satisfied beyond reasonable doubt that
a person had been engaged in anti-social behaviour before they can make
that ASBO—for low-level issues of anti-social
behaviour.
For the
operation of serious crime prevention orders, however, if
“beyond reasonable doubt” is not to be the test, if there
is to be some test which is lower than the evidential burden of McCann,
courts will not have to be satisfied beyond reasonable doubt. For these
much more serious orders, therefore, relating to much more serious
potential offences, targeting the Mr. Bigs with very onerous
restrictions and criminal penalties attached to them, the evidential
burden for making these orders is apparently to be lower than that in
relation to ASBOs. Nobody will have the ability to review the making of
those orders.
I think
the Minister will have to provide a very clear explanation of this. If
his colleague was correct and the test is “beyond reasonable
doubt”, there is absolutely no reason why he should not accept
the hon. Gentleman’s amendment and place that immediately on the
face of the Bill. If that is not to be the test, which is the import of
the White Paper, the Minister should say so and we will know that there
is to be this lower evidential burden for the making of these orders,
in which case the Committee and indeed this place as a whole will start
to take a very different view of the way in which these orders can be
applied. The Minister must now tell us which of the evidential burdens
is to
apply.
Mr.
Coaker:
Let me start my remarks, Mr. Bercow, by
formally moving to welcome you to the Chair of the Committee and also
to welcome your co-Chair, Mr. Benton. We look forward to
interesting and challenging debates on these important matters. I also
take this opportunity to welcome all other hon. Members to the
Committee.
The first
part of the debate was interesting and important. As the right hon. and
learned Member for Sleaford and North Hykeham said—his hon.
Friends and the hon. Member for Taunton made the same
point—this is an important discussion. I hope to
reassure hon. Members of the Government’s
position.
I shall
answer a couple of specific points before I make some general comments.
The hon. Member for Arundel and South Downs asserted that an order can
impose restrictions on a person who is not the subject of that order.
That is absolutely not the case; an order can place prohibitions,
restrictions, requirements or other terms only on its
subject.
Mr.
Hogg:
The Minister understands that the Bill provides a
power for a third party to make representations if their interests are
affected. He will know that from the terms of the Bill, and we have
tabled amendments to deal with it. It follows that where a person who
is the subject of an order has restrictions placed on him that affect
his rights to trade with third parties, those third parties will be
affected.
Mr.
Coaker:
They would have to be the subject of the order.
The third party would have the ability to make representations about
the impact on them, but they would have to be included in the order as
a subject.
I shall now
move
on—
Mr.
Coaker:
I shall now move on to a couple of the right hon.
and learned Gentleman’s other points. He mentioned Baroness
Scotland’s position. She stated quite clearly that the
applicable case law was the McCann case, which discussed the civil
standard, as the right hon. and learned Gentleman knows. She stated
equally clearly that the civil standard was flexible. The civil
standard will apply to civil orders. The flexibility means that, in
relation to clause 1(1)(a), the court will be able to require a
standard of proof beyond reasonable doubt, as set out in
McCann.
In relation
to clause 5(2)(a)—this was the intervention that I was trying to
make during the remarks of the hon. Member for Arundel and South
Downs—the court can apply the lower standard of proof, that of
balance of probability. That is what we mean by a sliding
scale.
“In the
case of organised crime, the potential harms are somewhere between, and
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.”
Will the Minister
tell the Committee whether the Bill reflects that statement of
intent?
Mr.
Coaker:
I quoted to the right hon. and learned Gentleman
the correct position of Baroness Scotland,
when she outlined in the other place the Government’s position on
the appropriate standard of proof. That is the point that I was trying
to
clarify.
The
Chairman:
Order. Let us establish at the outset that there
are rules that are to be observed by every member of the Committee,
without discrimination. Members of the Committee do not intervene by
chuntering from a half-sedentary position, “Will the Minister
now answer my question?” [
Interruption.
]
Order. If the right hon. and learned Gentleman wishes to intervene, he
is entitled to seek to intervene. He will do so in the same way as
every other hon. and right hon. Member does
so.
Mr.
Hogg:
On a point of order, Mr. Bercow. I
apologise if I offended you. I got to my feet and, as I understood it,
the Minister was sitting down. If he was not, I
apologise.
The
Chairman:
No. For the avoidance of doubt, I am not having
any trouble seeing the position. The right hon. and learned Gentleman
was starting to rise and he did not ask to intervene; he simply blurted
out his question. I do not want to argue the point with him. He can
speak when he has the opportunity to do so when he is on his feet.
However, the rules are the rules and they will be applied without
discrimination. If there is a dispute about whether the rules have been
observed, the arbiter is not a member of the Committee, but its
Chair.
11.15
am
Nick
Herbert:
On a point of order, Mr. Bercow. When
applying the rules of the House to the conduct of this Committee, do
you establish whether there has been a breach on the balance of
probabilities, or does it have to be proven beyond reasonable
doubt?
Mr.
Hogg:
As the power of the Chair can be penal, should such
a breach not have to be proven beyond reasonable
doubt?
The
Chairman:
I am grateful to the right hon. and learned
Gentleman and glad that a sense of humour has been displayed. However,
we must now get back to the main business of the
Committee.
Mr.
Coaker:
Perhaps we could apply a sliding scale, under
which “beyond reasonable doubt” would apply to the right
hon. and learned Gentleman and “on the balance of
probabilities” to
others.
I am afraid
that the Government must resist the amendments, as they are unnecessary
and undesirable in principle. In discussing them, I shall also try to
set out why 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. Such orders aim to reduce the harm caused by
serious crime by preventing those engaged in it from carrying on. They
are about not punishing past actions, but preventing future engagement
in activities that cause harm to society.
That extremely important point
goes to the heart of the Bill. The measures are preventive, not
punitive—they are about preventing harm. As I said, they are not
about punishment; if they were punitive, they would not be appropriate
for a civil order. 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 for
the judgment of the court. Does it have reasonable grounds for
believing that the order will prevent future harm caused by serious
crime?
Amendments
Nos. 1 and 2 would change in clause 1 the required standard of proof to
be discharged in respect of the first limb of the test, from the civil
standard to the criminal standard of “beyond reasonable
doubt”. The appropriate standard of proof for such orders was
debated at some length in the other place. As can be seen from
Hansard, there was initial confusion about what having the civil
standard of proof would mean in practice. It will be best if I clear up
any potential
misunderstandings.
Jeremy
Wright:
On the specific point of clearing up any
misunderstandings, the Minister said that clause 1(1)(a) was a simple
matter of fact. Will he confirm that what is involved is not simply a
matter of the court looking at the person’s record of previous
offences and considering whether they have committed a criminal
offence? Clause 1(1)(a) states that the High Court must be
“satisfied that a person has been
involved in serious
crime”.
“Serious
crime” is defined in clause 2, which goes into some of the
issues that we have discussed, such as the facilitation of
“the commission by another person
of a serious offence”
or
a person’s
having
“conducted himself
in a way that was likely to facilitate the commission by himself or
another person of a serious
offence”.
The issue is
not quite as straightforward as the Minister puts
it.
Mr.
Coaker:
That is a matter of opinion; our belief is that
the vast majority of cases relating to clause 1(1)(a) would involve
people who had been convicted of a criminal
offence.
Mr.
Hogg:
Will the Minister give a reason for making that
assertion? The Bill makes the issue plain; we have only to look at
clause 2(1)(a), (b) and (c). Two of the paragraphs deal with
facilitation; only one deals with the commission of an offence. Why
should we suppose that the commission of a serious offence will be the
majority
case?
Mr.
Coaker:
I said that we believed that the majority of such
cases would involve people who had been
convicted of a criminal charge and that the serious crime prevention
order would be applied alongside that. On facilitation, the High Court
would have to be satisfied that the person had been involved in serious
crime. So different measures of the Bill refer to different people, who
may then be made subject of a serious crime prevention order. As I say,
the application of the Bill would be different for different people,
which is the essence of why we believe, with respect to a civil order,
there would be a sliding scale of evidence, because it would be
different in different circumstances for different people.
As I said, the civil standard
of proof is a flexible one. The House of Lords, in the case of McCann,
decided that, for ASBOs, the standard of proof that the courts should
apply when deciding if a person has acted in an antisocial manner
should be the same as the criminal standard, which is “beyond
reasonable doubt”. To quote Lord Steyn in the McCann
judgments:
“Having
concluded that the relevant proceedings are civil, in principle it
follows that the standard of proof ordinarily applicable in civil
proceedings, namely the balance of probabilities, should
apply.”
However, I agree
that, given the seriousness of the matters involved, at least some
reference to the heightened civil standard would usually be necessary.
Lord Bingham of Cornhill went on to
observe:
“The heightened
civil standard and the criminal standard are virtually
indistinguishable.”
In
the McCann judgment, therefore, the House of Lords is laying out for
us, in case law, what would be the appropriate standard of proof with
respect to civil orders. The hon. Members for Arundel and South Downs
and for Taunton made the point that, although the McCann judgment
relates to ASBOs, many of the principles from the case have been
applied in relation to other civil injunctive orders and we can expect
them to apply in relation to serious crime prevention orders.
Clause 1(1)(a)
says:
“The High
Court in England and Wales may make an order
if—
(a) it is
satisfied that a person has been involved in serious crime (whether in
England and Wales or
elsewhere)”.
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. Baroness
Scotland has said that in the House of Lords. I have repeated that
here. I hope that that gives some reassurance to the hon. Member for
Taunton. By saying that the criminal standard of proof is beyond
reasonable doubt, through McCann and in the statements that Baroness
Scotland has made in the House of Lords and that I have made in this
House, that shows that we expect that the standard of proof, with
respect to that first limb in clause 1(1)(a), to be virtually identical
to the criminal
standard.
Mr.
Hogg:
Does the hon. Gentleman not understand that this
Committee finds it very difficult to reconcile what the Minister has
just said with what is in his White Paper, in paragraph 3.4, which was
published long after McCann? In that paragraph, there is a specific
reference to McCann and it goes on to
say:
“In the
case of organised crime, the potential harms are somewhere between, and
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.”
That is what is in
the Minister’s White Paper, drawing away and disapplying
McCann.
Mr.
Coaker:
All I can say to the right hon. and learned
Gentleman, in answer to his specific points, is that what I have tried
to do is to set out not what is in the White Paper but what is relevant
to the Bill that is going through Parliament now. What was said by
Baroness Scotland in the House of Lords, in answer to questions by many
of his hon. Friends in the other place, was to reassure them that, 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. It is perfectly
reasonable for him to quote the White Paper, but it is also perfectly
reasonable for me to say that, notwithstanding what is in the White
Paper, I am saying in this Committee, in the House of Commons, as
Baroness Scotland said on the Floor in the House of Lords, what we
expect the standard of proof to be, with respect to clause 1(1)(a). I
hope that that reassures him; to repeat myself, notwithstanding what it
says in the White Paper, what is relevant and appropriate is what has
been said by Baroness Scotland in another place and what I have said
here.
Nick
Herbert:
But the problem is that Baroness Scotland did not
say, in another place, what the Minister is suggesting that she said.
She said:
“In
the most serious issues, quite often the distinction between the
criminal standard and the civil standard will be
negligible.”—[Official Report, House of Lords, 7
February 2007; Vol. 689, c.
764.]
There was an element of
doubt in what she was saying about whether the standard of
“beyond reasonable doubt” would be required. In the same
paragraph she said that there was a “sliding scale”. Does
the Minister not understand that his assurances are not sufficient to
allay concerns? There is no guarantee that the courts will apply the
McCann judgment to these offences, which are more serious than those
requiring ASBOs. If what he says is correct and his intention is that
the evidential standard should be “beyond reasonable
doubt”, why does he simply not put it in the Bill and avoid all
doubt?
Mr.
Coaker:
The hon. Gentleman is trying to get the Government
to introduce into the Bill something relevant to criminal law. These
are civil orders. We are trying, in Committee, to flesh out the
evidential base for a civil court. They are not criminal proceedings.
The words, “beyond reasonable doubt” and the sorts of
amendments to which he has referred would blur the distinction between
criminal and civil law. We are trying to clarify the evidential base
for civil
proceedings.
Jeremy
Wright:
I am very grateful to the Minister for giving way;
he is being generous this morning. I do not want to ask him about what
another Minister has said or, indeed, what has been said in the White
Paper, but specifically about what he has been able to say today. I
understand entirely that he is attempting to reassure
the Committee. Does he accept, however, that the difficulty is that,
owing to the seriousness of the orders that could be made under the
legislation, whether civil or criminal—we will argue about that
later—it is important that the Bill is clear about what an
individual may face, before they are made, and what standard of proof
they are expected to meet? It is peculiar in the extreme that he is
really saying that he expects the courts to clarify that matter at a
later date. The courts will look to statute and hope to interpret, not
make it. It is for this Committee and the House to make the law in the
first place, and it should be as clear as we can make
it.
Mr.
Coaker:
I am trying to say to the Committee that civil
orders will be made according to a sliding scale. On clause 1(1)(a), we
would expect the standard of proof to be virtually identical to that
for criminal proceedings, which is what the McCann judgment tells us.
That is relevant to the quotes that I have read out, but to repeat,
Lord Bingham of Cornhill observed that the heightened civil standard
and the criminal standard are virtually indistinguishable. I have tried
to reassure the Committee and to demonstrate our belief that, with
respect to the first limb in clause 1(1)(a), we expect the civil and
criminal standards to be virtually
indistinguishable.
We
are saying also that there are other elements to the making of the
serious crime prevention orders in which we expect that the standard of
proof will not necessarily be at that level. That was the point that I
was trying to make to the hon. Member for Arundel and South Downs, but
I was accused of not understanding. I was trying to point out that,
with respect to clause 5(2)(a), notwithstanding the reverse burden of
proof, which means that it is for the respondent to prove that their
actions were reasonable in the face of an SCPO from the applicant
authority saying that they were unreasonable, we think that it would be
much fairer and better for the respondent in a civil court to
demonstrate that their behaviour was reasonable on the balance of
probability, rather than on the balance of “beyond reasonable
doubt”. That was the only point that I was trying to draw
attention to. It is a sliding scale and, of course, therefore, courts
must have the discretion, when deciding whether to apply a serious
crime prevention order, to apply the appropriate standard of proof,
depending on which part of the proceedings is being dealt
with.
11.30
am
Ian
Lucas (Wrexham) (Lab): Does my hon. Friend agree that the
central difficulty is that those who propose the amendment do not
recognise that the Bill is intended to deal with situations that are
not currently covered by criminal law? It is for that reason that the
clause contains civil proceedings. The purpose of the Bill is to
protect victims of crime who are not currently protected by criminal
law, so the orders have a civil burden of proof—they are civil
orders, after all. The sliding scale is necessary to cover
circumstances in which victims of crime are not currently covered. That
is the entire purpose of the Bill.
Mr.
Coaker:
My hon. Friend makes an excellent point. To
reinforce what I was trying to say, we do not want to punish past
actions. The orders are not punitive; we will not be saying, “As
a result of you being found guilty of this, this is your
punishment.” That will be a matter for the criminal process. As
my hon. Friend points out, we are trying to reduce harm and prevent
further crime. As that is the aim of part 1 of the Bill, it is entirely
appropriate for the civil process to be
used.
Mr.
Crispin Blunt (Reigate) (Con): The Minister says that the
orders are not about punishment, but his own party’s former
Attorney-General, the noble Lord Morris of Aberavon, said in another
place that we were
“in a
situation that inevitably is in the same ballpark as a criminal penalty
by the restrictions set out in subsection (3), that is in reality
nothing more or less than a criminal
penalty.”—[Official Report, House of Lords, 7
March 2007; Vol. 690, c.
240.]
So we are talking about
things that amount to a pretty serious punishment, however the Minister
attempts to dress them
up.
On the sliding
scale, the implication in the White Paper and elsewhere is that there
should be a lower standard. When there is a serious risk of terrorist
offences, the test is on the balance of probabilities. If it is
assessed that there should be an intervention to prevent a serious
threat to society, a lower burden of proof is required for the state to
intervene. The McCann judgment on ASBOs, which are on a less serious
threat to society, was that the criminal burden of proof should apply.
I have to
say—
The
Chairman:
Order. I am sorry to interrupt the hon.
Gentleman, but in the past 10 minutes or so interventions have become
significantly longer. They need to get shorter. If he wishes very
briefly to finish his point, he
can.
Mr.
Blunt:
I am grateful, Mr. Bercow. If the
Government want and expect the burden of proof to be virtually
identical, the Minister now has the opportunity to make it so. He
should do
so.
Mr.
Coaker:
I am trying, as always, to be reasonable and fair
in giving way to hon. Members, but I take your point about brevity,
Mr. Bercow, and will bear it in
mind.
On the point
made by the hon. Member for Reigate about Lord Morris and punishment,
the orders are called prevention orders because they are about
preventing future crime to reduce harm. The restrictions placed on an
individual by the High Court are about trying to prevent an occurrence
in the future, not about punishing people for what they have done. The
hon. Gentleman may sigh, but that is the fundamental purpose of the
orders—to prevent crime and reduce the possibility of serious
harm.
If the hon.
Gentleman looks again at the McCann judgment, he will see that it will
apply to serious crime prevention orders. The whole point made in the
judgment was that such are the serious consequences of orders being
imposed on people through due process that, in serious cases, one would
expect the standard of proof to be close, or virtually identical, to
the criminal
standard. The hon. Gentleman might not accept that. His colleagues might
go to the House of Lords to argue that the McCann judgment was wrong
and that all the Lords involved had got things wrong and misunderstood
the process. That is a point of view and the judgment that the hon.
Gentleman and his hon. Friends have made, but the Government accept the
McCann judgment and the point that there should be a sliding scale for
the standard of proof for civil orders.
Given the seriousness of some
of the allegations that are made against people—the hon.
Gentleman made the point about terrorism—and some of the
restrictions that are placed on people as a consequence of the High
Court taking action, the standard of proof should be virtually
identical. All I am saying is that the Government accept that. That is
the Government’s position on the very serious issues covered in
clause 1(1)(a), and whether the hon. Gentleman agrees with it or not, I
hope that I have made it clear. We expect the standard of proof in this
case to be virtually identical to the criminal
standard.
Mr.
Blunt:
I am confused because the implication of the
sliding scale is that the more serious the offence—the more
serious the threat to society—the lower the burden of the proof.
That is the implication of the treatment of terrorism as opposed to
ASBOs. In other words, a lower burden of proof is required for the
state to intervene in respect of terrorism than in respect of ASBOs.
The implication of the arguments that the Government advanced in
another context is that the burden of proof would be lower, and I am
rather confused about where serious crime fits in the scale. The Bill
should not leave the Committee in a confused state, and these matters
should be set out absolutely clearly in the
Bill.
Mr.
Coaker:
It is not confused at all. It gives the High Court
discretion and allows it to understand that, as far as Parliament is
concerned, there is a sliding scale for the standard of proof. Perhaps
I can repeat what I said before, because this is an extremely important
point, and I hope that hon. Members will forgive me. Such is the
seriousness of the test in clause 1(1)(a)—the first of the two
tests—that we would expect the standard of proof, consistent
with the McCann judgment, to be virtually identical to the criminal
standard. There are other aspects, however, where the balance of
probability would be used.
As I said, this may be a matter
of disagreement between us, but my comments about what the standard of
proof in clause 1(1)(a) should be will be perfectly clear when we read
the transcripts of this Committee, just as Baroness Scotland’s
comments in the other place are perfectly
clear.
Mr.
Hogg:
We are looking now at the issue of facilitating
somebody who has committed, or is going to commit, a serious offence.
Is the Minister saying that the courts will apply the criminal standard
in respect of the two elements of the standard of proof, or will they
apply a criminal standard to one element and a civil standard to the
other? They will have to decide, first, whether there is facilitation,
and secondly, whether another person has committed, or is going to
commit, a serious offence.
Mr.
Coaker:
I am saying that there is a sliding scale, which
the High Court can use as appropriate. Given the seriousness of some
aspects of the orders, we would expect the standard of proof to be
virtually identical to the criminal standard.
This is not the only question
in the Bill to which a standard of proof must be applied, and I alluded
to that earlier. For example, when the court is deciding whether a
person’s actions were reasonable and should therefore be
disregarded, as set out in clause 5, we would expect the courts to use
the flexibility of the civil test and to apply the lowest possible
standard, the balance of probabilities, because the burden is on the
subject to demonstrate the reasonableness of the actions. They are
civil orders, so it is right that the civil standard of proof should
apply. As a result, I urge the Committee to resist the
amendment.
The
intention of the hon. Member for Taunton is to make the applicable
standard “beyond reasonable doubt”, but the House of
Lords has already done so; I hope that what I have said reassures him
that the amendment is unnecessary and that he will feel able to
withdraw it. Amendment No. 16 would achieve the same end, so I ask the
hon. Member for Arundel and South Downs not to press it
further.
Amendment
No. 17 would alter the threshold in relation to the second limb of the
test. As I said, following McCann the second limb of the test in
subsection (1)(b) will not be subject to a standard of proof as such,
because it is a question of judgment and not of fact. It is not
possible to prove something that might happen in future. The same
argument applies to amendments Nos. 119 and 124 to clauses 20 and 21,
on the power of the Crown court to make or to vary an order. The
intention may be to require the second limb of the test to be proved,
but I hope to have explained why it is not appropriate—although
the amendment may be aimed at probing the appropriate threshold for the
test in subsection (1)(b).
Amendments Nos. 51 and 52 seem
to be aimed at the same question. We believe that we have set the
threshold at the appropriate level. The courts must have reasonable
grounds for believing that an order would protect the public. They must
therefore have an objective basis for such a belief. The courts are
used to applying the test of reasonableness, and it presents a
significant hurdle for the applicant authority to meet it without it
being so high as to make things unworkable.
I hope that the hon.
Gentleman will withdraw the amendment.
Mr.
Browne:
I shall seek your guidance, Mr. Bercow,
throughout our discussions; but I wish to make some concluding remarks
before pressing the amendment to a Division. I do not wish to withdraw
amendment No. 1, because it is of fundamental importance.
We have had a detailed
discussion of the matter. I well understand that the purpose of Bill
Committees is to discuss the nitty-gritty, and I greatly admire the
right hon. and learned Member for Sleaford and North Hykeham for his
forensic examination of the issues—if not for his observation of
Committee etiquette, Mr. Bercow, as it leaves much to be
desired.
Mr.
Browne:
I want to step back from the nitty-gritty for a
moment, and consider why the amendment is so fundamental. It goes to
the heart of people’s objection to the Bill. The expectation of
residents and citizens of the United Kingdom is that if they were to
commit an offence and be caught by the police, they would go to court.
They would be put before a jury and if found guilty they would be
convicted.
However, we
are talking about people who may never have committed any criminal
offence. I get the feeling that the Government are saying, “We
know who these people are, we know who the troublemakers are, and if we
cannot get them through the normal conventional
procedures”—they were established over many hundreds of
years—“we will come up with a lower threshold so that we
can catch the bad guys without having to worry about the details of the
law.”
Mr.
Browne:
The right hon. and learned Gentleman makes a
reasonable point, but I do not wish to be waylaid.
A number of offences are
described in the Bill as serious. Indeed, salmon fishing was mentioned
earlier. Sadly, I do not own a salmon pond, but if I did I would
doubtless find it deeply objectionable if others were illegally to fish
in it. I have not visited the constituencies of all the Labour members
of the Committee, so I do not know whether it would be regarded as a
serious crime in those places, but I have my doubts. Then there are
areas such as the pirating of DVDs. DVD pirating is an offence, and it
might be one that people take seriously, but is it in the same category
as some of the other offences in the Bill? In any case, the Secretary
of State has the power to amend the list at any
point.
As has been
touched on, the sanctions are in some circumstances an extremely
serious curtailment of the liberty of the individual, including, for
example, the individual’s right to travel freely in the United
Kingdom. That kind of restriction is normally associated with more
draconian regimes than we have traditionally had in this country.
Ultimately, somebody who breaches the conditions could find themselves
spending five years in prison—a considerable period even if they
might quality for the early release scheme that the Prime Minister
outlined to his great discomfort in the House of Commons last
Wednesday. In addition, their reputation as an individual, as a
business man or business woman, or as a citizen could be compromised or
even destroyed.
11.45
am
Jeremy
Wright:
I substantially agree with the hon.
Gentleman’s remarks. Can he determine any difference between
some of the restrictions that will be placed on individual liberty as a
result of these orders, which the Minister described as preventive, and
restrictions placed on individual liberty as part of a community order,
which would be described as a punishment?
Mr.
Browne:
No, I cannot. To conclude, and before I press the
matter to a vote, the essential point is that the individual liberties
that everybody in this country is at risk of taking for granted are
guarded by this House. It is the duty of hon. Members, including Labour
Members who have chosen not to raise any objections to the points
raised by Opposition Members during the past hour and 20 minutes or so,
to safeguard those liberties. We must ensure that we are extremely
vigilant about overturning centuries of legal practice, and on that
basis I am keen to press for a
Division.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 6, Noes
9.
Division
No.
1
]
AYESNOES
Question
accordingly negatived.
Mr.
Hogg:
I beg to move amendment No. 53, in
clause 1, page 2, line 7, leave
out ‘appropriate’ and insert ‘necessary, just and
proportionate’.
No. 120, in
clause 20, page 12, line 38, leave
out ‘appropriate’ and insert ‘necessary, just and
proportionate’.
Mr.
Hogg:
Amendments Nos. 53 and 120 were both tabled in my
name and concern subsection (3), which relates to the serious crime
prevention order itself. It
says:
“An order
under this section may
contain—
such
prohibitions, restrictions or requirements;
and
(b) such other
terms;
as the court
considers appropriate for the purpose of protecting the
public”
and so forth. The
court is not given any guidance as to the meaning of the word
“appropriate.” It is as long as the Lord
Chancellor’s foot, as used to be the expression in the courts. I
am happy to say that it is no longer used. In the case of the present
Lord Chancellor, as large as the Lord Chancellor’s tum, might be
another approach one could use. It is not unparliamentary to refer to
the fatness of a person, Mr. Bercow; at least, I have never
heard that it is so. On subsection
(3)—
The
Chairman:
Order. It may not be out of order to refer to
whether someone is fat, but it would be out of order for the right hon.
and learned Gentleman to dilate on matters outwith the terms of the
amendment.
Mr.
Hogg:
I model myself on you, Mr.
Bercow—I have long admired your passages with Mr.
Speaker in the main Chamber—however, I will stop doing so
because you have told me not
to.
We
come to the serious point: what are the criteria on which the court
should determine the matter? The Committee has already been referred to
the breadth of clause 6(3), in which the extent of the order-making
powers is sketched out. Although the Minister said that they are not
punitive—that may not be the purpose; the purpose may be
preventive—there is no doubt that the consequences are punitive
because they can restrict people’s liberty in an extensive way,
and guidance should be given to the courts. They should not simply be
asked to determine whether it is appropriate; there should be more
precise tests. They should be required to ask themselves whether it is
necessary, just and proportionate to make one of these
orders.
The Minister
earlier used the word “proportionate” when he asked me
whether I was really suggesting that the High Court would not make an
order that was proportionate, and I reminded him of the language of my
amendment. I am very anxious that the word
“proportionate” should appear in the Bill because I wish
to protect the civil liberties of my fellow citizens; whether or not
they are criminals, they have their rights to be protected. The least
we can do is to oblige the courts to ask themselves the question I have
set out: is the order in question necessary, is it just, is it
proportionate? To suggest that the word “appropriate”
necessarily involves those tests is plain
wrong.
Jeremy
Wright:
My right hon. and learned Friend said that all our
fellow citizens have rights that are in need of protection, whether or
not they are criminals. Does he agree that the point of the debate is
that those subject to these penalties would not, in the
Minister’s words, be criminals, because they would not be
responsible for criminal
offences?
Mr.
Hogg:
Exactly. Even as I uttered the phrase I was
conscious that I was only stating part of the fact, as I was going for
brevity on this occasion. But my hon. Friend is entirely right: many of
the people who will be affected by the orders will not have committed
criminal offences. They will be people against whom it is said that
they have facilitated someone else’s criminal offence. Surely
the very least we can do for them is to ensure that the relevant term
of the order is just, necessary and proportionate. It is the very least
that a House that should be safeguarding the rights of its constituents
should require.
Mr.
Coaker:
Let me start by repeating something that the right
hon. and learned Gentleman said. It is important to place it on the
record, lest there be any misunderstanding. I do not believe that any
member of this Committee would play fast and loose with the civil
liberties of citizens of this country. People may have different ideas
about how to protect civil liberties, but I do not believe that any of
us do not see them as important. As the hon. Member for Rugby and
Kenilworth said, we all also believe that everyone has rights. All of us
on this Committee accept that. It is important to lay it on the table.
I do not believe that any member of this Committee does not feel that
the rights of individuals are important. There will be differences
between us about how we protect those rights, but that does not
undermine the fact that we support them and feel that the civil
liberties of citizens of this country are
important.
Amendments
Nos. 53 and 120 seek to amend clause 1(3), and the similar provision
for orders in the Crown court in clause 20, by changing the word
“appropriate” to “necessary, just and
proportionate”. Those provisions establish the test that the
court must apply when deciding on the terms included in an order.
Placing a requirement on the court to act justly and proportionately is
unnecessary, because it simply reflects principles by which the court
will already abide in making the orders. There is no need to tell the
High Court to be just or proportionate in legislation. As I made clear
in an earlier intervention on the right hon. and learned Gentleman, the
High Court has an obligation as a public authority under human rights
legislation to ensure that everything that it does is just and
proportionate.
As for
a requirement that the terms of an order be necessary, we believe that
we have set the standard in clauses 1(3) and 25 at the right level,
striking a 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 ask the right hon. and learned Gentleman to withdraw
his amendments. We have already discussed the principles running
through clause 1 and have considered the test in clause 1(1) in detail.
We believe that the orders will provide a valuable new tool for law
enforcement, and that the test in clause 1 lies at the heart of the
legislative and procedural framework that will ensure that they are
proportionate.
Mr.
Hogg:
The Minister said that nobody in this Committee was
seeking to play fast and loose with civil liberties, but we must
consider consequences, not intent. What will happen when the Bill
passes in its present form? I have no doubt that civil liberties will
be seriously
infringed.
The
Minister suggests that the word “appropriate” necessarily
encapsulates the concepts of necessity, justice and proportion. I do
not agree. It means something different. It may include them in part,
but it is not obliged to, and there may be things included in
“appropriate” that fall outside the test of necessity,
justice and proportion. I did not hear him say in any terms that my
test was wrong in principle; he merely said that it was unnecessary. I
do not share that view, and for that reason I will not withdraw the
amendment. I hope that it will be voted
on.
Question put,
That the amendment be
made:—
The
Committee divided: Ayes 6, Noes
9.
Division
No.
2
]
AYESNOES
Question
accordingly negatived.
Question proposed, That
the clause stand part of the
Bill.
12
noon
Mr.
Hogg:
I am not going to repeat at length the points that I
have made already because that would be otiose. The Committee will by
now have learnt that I am a strong enemy of the clause. I could be
persuaded that it is right to make a serious crime prevention order in
respect of a person who has been convicted of a serious offence,
provided that the concept of a serious offence is redefined. We will
come to that in the next group of amendments. I think that there are no
circumstances in which I could sensibly be persuaded that the
facilitator should be the subject of a serious crime prevention order
unless the standards of proof are raised substantially. That has not
happened as a result of the Committee’s
decisions.
I repeat
that these are orders of a very, very draconian kind. They can be made
against people who have committed fairly trivial offences—an
issue that we will come to. They can also be made in respect of people
who have committed no criminal offence at all. It is no good saying
that they are not punitive, but preventive. One has to look at the
consequences. Although the motives might be different, the consequences
are much the same; indeed, they can be worse. I hope that the Committee
will take the view that the clause should not be passed in its present
form.
Nick
Herbert:
We, too, have serious concerns about the
operation of the clause. I have tabled proposals, but because they
amount to new clauses, they cannot be considered now. They would
introduce a review regime in respect of the operation of serious crime
prevention orders. Since the orders are analogous to control orders, we
feel that it is perfectly reasonable that, as happens with control
orders, this place should appoint an independent reviewer to advise on
their operation and subject them to a regular review so that we can be
certain of how they are being
used.
A difficulty for
the Committee in deciding whether to support this power is that we are
unclear as to the extent to which it may be used and how many orders
may be made. Many concerns about the ambit of the orders have already
been set out and we will discuss them further in respect of later
amendments. However, it is of concern to us that when given the
opportunity, the Minister chose not to clarify the evidential burden in
the Bill—a matter central to the operation of serious crime
prevention orders. His argument that different evidential burdens are
required in different parts of the legislation frankly does not wash,
because he could easily have accepted an amendment just to the
main substantive provision, clause 1(1)(a), but he did not.
On the operation of the clause,
it is also important that we examine how exactly the powers may be
employed and in what particular circumstances. It is clear from what
the Government have said that the provision may be used as an
alternative to prosecution. Indeed, the July 2006 paper, “New
powers against organised and financial crime”—we have
still not clarified whether it is a White Paper or a Green
Paper—makes it clear on page
31:
“There are
also...likely to be cases where orders are an appropriate tool as
an alternative to prosecution. In practice, law enforcement and
prosecutors need to make difficult decisions around putting cases
together for court. The courts have reasonable practical and case
management reasons for objecting to over-large trials. But in the case
of organised crime investigations, there may be 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. Such
individuals’ role might have been marginal and not warrant a
prosecution, but an order might be sufficient to deter future criminal
activity.”
I
regard that position as absolutely unacceptable. It is effectively an
argument of resources to say that the state will not mount a criminal
prosecution, not because of a lack of evidence, but because it is, in
the words of the Green Paper, “not thought worthwhile” to
pursue a prosecution. Of course, a prosecution could not proceed unless
the Crown Prosecution Service was satisfied that there was a reasonable
chance of its success in the first place. We fear not only that the
measures will become an alternative to prosecution, but that they are
intended as such, and that the authorities will choose the line of
least resistance and apply for the order.
Mr.
Hogg:
Before my hon. Friend moves on from the Green Paper,
I should like to make the point that at the bottom of page 31, it
includes the words:
“and
for the court in deciding whether it would be proportionate to make
it.”
In the Green Paper,
the concept of proportionality was raised and
recommended.
Nick
Herbert:
My right hon. and learned Friend has successfully
made his point. Of course, the court will show regard to what the Green
Paper says is the intention of the legislation. To be fair to the
Government, I must say that they have never demurred from outlining
their objective, which is to set out an alternative——in
part——to prosecution, in relation to the prevention of
serious crime.
It is
not just the official Opposition who have concerns about the potential
for the legislation to be used as an alternative to prosecution. The
Law Society has expressed similar concerns:
“Where there is evidence
that a person is engaged in criminal activity, that evidence should be
gathered with a view to prosecuting them. We fear the proposed orders
are a measure of expediency to deal with cases where a prosecution is
not possible because there is insufficient
evidence.”
Mr.
Coaker:
To eliminate any doubt, I should point out that
where an offence can be prosecuted, the Government would expect it to
be prosecuted. If someone commits a criminal offence that requires
prosecution, we would want them to be prosecuted. We are talking about
the reduction of harm and the
prevention of future crime. The measures are serious crime prevention
orders. Where appropriate, the Government would expect people to be
prosecuted.
Nick
Herbert:
It is all very well for the Minister to say that.
The Government’s Green Paper sets out a number of case studies.
Case study D, on page 33,
says:
“R runs a
business inviting people to participate in bogus
‘competitions’ in return for personal details. In
practice, the prizes offered are almost worthless, and there is no
commercial rationale for the operation. The sole purpose of the
mailshots is to identify likely future candidates for advanced fee
fraud. These frauds are either carried out by R, or he sells on his
mailing lists. Law enforcement applies for a prevention order
prohibiting R from engaging in any activity involving large scale
mailshots.”
The Green
Paper envisages that, in those circumstances, the serious crime
prevention orders will be used to prevent the individual from
undertaking such fraudulent activity. If there is evidence, as set out
in the case study, that the individual is engaged in that activity, why
would not that individual be prosecuted? If it is due to insufficient
evidence, that gives rise to the question whether potentially, on a
lower evidential burden than would be accepted in a criminal trial,
greater restrictions could be placed on his liberty than would be
applied on criminal conviction. They could last for five years, but
would potentially be renewable by the High Court indefinitely. It is
the uncertain ambit of the provisions and the seriousness of the
restrictions that can be imposed with regard to an individual’s
freedom that cause us to be concerned about the scope of clause 1, if
not its intention.
Magna Carta’s key
provision on the liberty of individuals still remains in force in
English law. Chapter 29 of Magna Carta
states:
“No
Freeman shall be taken or imprisoned, or be disseised of his Freehold,
or Liberties, or free Customs, or be outlawed, or exiled, or any other
wise destroyed; nor will We not pass upon him, nor condemn him, but by
lawful judgment of his Peers, or by the Law of the
Land.”
Of course it is
open to this place to change the law of the land, but as the hon.
Member for Taunton said, we should use the greatest care before
allowing any incursion on that fundamental principle of liberty.
Without the reviews that apply in relation to control orders, and
without the parliamentary safeguards or the placing of the evidential
burden on a statutory basis, and bearing in mind the likely attitude of
the Government to subsequent amendments about the scope of the
Bill—going by what we have heard from the Government this
morning, a disagreement about that is likely—I am not persuaded
that we can accept serious crime prevention orders in the form in which
they are now presented.
Question put, That the
clause stand part of the
Bill:—
The
Committee divided: Ayes 9, Noes
6.
Division
No.
3
]
AYESNOES
Question
accordingly agreed to.
|
| |
| ©Parliamentary copyright 2007 | Prepared 27 June 2007 |