Clause
34
Proceedings in the High
Court
James
Brokenshire:
I beg to move amendment No. 18, in
clause 34, page 22, line 35, leave
out ‘civil’ and insert
‘criminal’.
The
Chairman:
With this, it will be convenient to discuss the
following amendments: No. 19, in
clause 34, page 22, line 36, leave
out subsection
(2).
No. 20, in
clause 35, page 22, line 40, leave
out ‘civil’ and insert
‘criminal’.
No.
21, in
clause 35, page 23, line 1, leave
out subsection
(2).
No. 22, in
clause 35, page 23, line 3, leave
out subsection
(3).
James
Brokenshire:
I fear that we may be going over some old
ground, but I hope that, at least, we will do so in a slightly
different way, rather than simply repeating some of the arguments that
have probably been rehearsed in great detail in relation to this issue,
which centres on whether the orders that are to be sought under the
Bill are of a civil nature or otherwise.
Clause 34(1)
states:
“Proceedings
before the High Court in relation to serious crime prevention orders
are civil
proceedings.”
We have
obviously debated previously the issue of the standard and burden of
proof associated with these orders and reference has been made to the
McCann judgment as it applies to antisocial behaviour orders. In
particular, we debated whether the McCann judgment would operate in
relation to the orders that are envisaged under this Bill, and
therefore whether what has been termed the heightened civil standard
might apply.
I note
that the Minister and his colleagues have said that that is the
intention behind the drafting of the Bill—that although it is
stated as being a civil order and although it is stated that the court
should apply a civil standard of proof in relation to serious crime
prevention orders, it is understood that, following the McCann
judgment, in essence a higher standard would, notwithstanding, still be
applied in accordance with the terms of that judgment.
I suppose that we come back to
some of the fundamental issues and also to trying to provide some sort
of certainty in relation to the Bill, to understand very clearly what
is intended. The judgment of Engel v.
The Netherlands
(No. 1) in the European Court of Human Rights effectively established
three standards to determine whether proceedings are regarded as
criminal for the purposes of the European convention. That judgment
said that there are effectively three tests: the domestic
classification, in other words what the domestic law classifies the
proceeding as; the nature of the offence, and finally the severity of
the potential penalty that the defendant risks incurring. The Engel
case was referred to in the leading judgment in the McCann case, when
it was suggested that the third factor—in other words, the
severity of the potential penalty—was the most important factor
in determining whether a matter was regarded as criminal.
If we are saying that a higher
standard is being applied in relation to ASBOs and one then looks at
the potential impact of orders under this Bill, I thinkthat it
is accepted—even if there is a difference asto whether
such orders are a punishment or a prevention—that they are
potentially very significant, in terms of their ambit, scope and
impact. Therefore, if the suggestion is that the potential penalty is
the relevant factor in deciding whether a matter is regarded as
criminal or not, I would submit that there is a very strong argument
for saying that this matter should be regarded as
criminal.
4.45
pm
In the context
of the McCann judgment and those relevant tests, for the sake of
certainty and clarity about the standards that we seek to adopt, it
would be better to include a measure in the Bill to make absolutely
clear the burden of proof and the expected standards. Although I note
what Ministers have said, there is still the potential for a legal
argument about whether McCann applies, and if so, the way in which it
applies in a given circumstance. The Bill is being introduced after the
McCann judgment, and we do so in conscience and knowledge of what we
are doing.
If the
Bill says that the proceedings are effectively civil proceedings, and
that as a consequence, the standard of proof that the court will apply
is the civil standard of proof, notwithstanding the McCann judgment, it
could be argued that, because of the decisions and wording in the Bill,
we as Parliament are consciously determining that the McCann judgment
should not apply. The Minister may say that that is not the intention,
but it is better to be clear in law about what we are talking about,
hence the reason for the amendment to clause 34 and the amendment to
clause 35, which would state that the proceedings should be treated as
criminal proceedings, and delete subsection (2) on the burden of
proof.
I know that
those arguments and issues have previously been debated differently,
but it is right and proper that we are as clear as possible about the
requirements for proof, particularly as a consequence of the potential
penalties that may arise. To use the words of my right hon. and learned
Friend the Member for Sleaford and North Hykeham, if it looks like a
duck, perhaps it is a duck. If that is the case, and we are considering
a criminal issue, let us put it in the Bill, so that the courts are
certain and we are certain about what we are
discussing.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I rise to
support the amendments in my name, and to reinforce the speech that my
hon. Friend the Member for Hornchurch made. It is worth considering
what the clauses say. Clause 34(1) says that the proceedings are
“civil proceedings”, not criminal proceedings. Subsection
(2) states that
“the
standard of proof to be applied by the court in such proceedings is the
civil standard of
proof.”
I shall pause at
that point. Anybody who comes to the Bill afresh, and without any
background knowledge at all, will conclude that clause 34 means what it
says, namely that for all purposes the proceedings are to be deemed
civil, and that the standard of proof is to be that of the civil court.
That is what it says.
It is of course true that the
courts will approach the matter in the context of the McCann judgment,
which is the judgment of the House of Lords. However, let us begin by
reminding ourselves that the House of Lords determined that approach in
a particular fact-related case, namely McCann, and it construed an
ASBO, not a serious crime prevention order. It is possible—it
may even be likely—that the courts would apply to the serious
crime prevention orders the kind of reasoning that they applied to
ASBOs, but there is no certainty that they would. Why should we assume
that the courts will give to the phraseology in clause 34 a different
interpretation from that which appears in the Bill? There is no
certainty of that, and my hon. Friend the Member for Hornchurch makes a
very sound point. The courts will take into account the fact that
Parliament is acting against the background of knowledge of the McCann
case—in fact they might assume that we are putting this clause
into the Bill so as to disapply the approach that was taken in relation
to that judgment.
Kali
Mountford (Colne Valley) (Lab): Is not the
point—perhaps this goes back to this morning’s
debate—that for this to be a criminal proceeding, a crime must
have taken place, and we must be considering a criminal case? In fact,
this is about a prevention order, so it must be a civil matter. Surely
I have not
misunderstood.
Mr.
Hogg:
Our primary concern is with the consequence of
stating that the matter is civil rather than criminal. Looking just at
the Bill and leavingaside McCann and the underlying judgments,
the consequence is that the standard of proof is different—it is
the balance of probabilities, not beyond a reasonable doubt. Also,
although less so than before the Criminal Justice Act 2003,
fundamentally different rules are applied to hearsay and there are
other differences between the jurisdictions. Once we assert in the Bill
that it is a civil proceeding, if we do not apply McCann we have a
different standard of proof. That is what is objectionable having
regard to the severity and the onerous effect of the orders and
everything to do with renewal.
Jeremy
Wright (Rugby and Kenilworth) (Con): Would my right hon.
and learned Friend agree that it is more complicated even than that?
Not only do we have the indication of the McCann judgment compared with
what the clause says, but there is also what the Minister has said
during our deliberations in Committee, namely that the standard of
proof should be almost identical to the criminal standard. There is an
extra layer of confusion, which we ought to resolve by changing the
Bill.
Mr.
Hogg:
That is true. Similar language was used in the other
place, where the Minister said “virtually the same”,
“nearly the same” and so on.
Another important point, which
has been made in this Committee before and which partly answers the
hon. Member for Colne Valley, is that we need to look at paragraph 3.4
on page 32 of the Green Paper, which was published after the McCann
judgment. It says:
“We believe
these...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.”
Let us
pause there; this is very important. We appear to be putting in the
Bill precisely what the Government say in page 32 of the Green Paper
that they want to put in. The motive for that is stated explicitly. It
is in order to impose a test and
that
“the courts should
be satisfied on the balance of
probability”
that that
test is made. When the courts come to construe this, they will start by
looking at the language of the Bill. They will see that the burden of
proof is a civil burden; then they will ask, “What about
McCann?” They will then go—or feel able to go—to
the Green Paper, because it pointed, at least at one stage, to the
Government’s intention.
They will see that the
Government have taken account of the McCann judgment and have decided
that they want to disapply it, and that they intend to do so in the
Bill. Lo and behold, there is language in the Bill that purports to
have that effect. I should have thought that the courts would be very
constrained not to hold that the standard of proof was that
requiredin the ordinary civil case, namely the balance of
probability.
Mr.
Coaker:
I have often been asked by the right hon. and
learned Gentleman to read things into the record because, he says, that
is extremely importantin terms of how the courts will
interpret the Government’s intentions behind legislation. The
right hon. and learned Gentleman has heard me say on numerous
occasions—Baroness Scotland said this in the House of Lords as
well—that we expect the civil standard of proof required under
clause 1(1)(a) to be as close as to be virtually identical to the
criminal standard of proof; in other words, beyond reasonable doubt. We
have said that the McCann judgment will be applied on a sliding scale;
the standard here will be “beyond reasonable doubt”, but
in other parts of the Bill, it might be “on the balance of
probability”.
Mr.
Hogg:
I have no doubt that, when appropriate, the courts
will listen carefully to what the Minister has said. It is important,
however, to keep in mind that the courts, as a general rule, look only
to the words of Ministers when there is ambiguity in the language of
the statute, but it is far from clear that there is ambiguity in the
language of the statute before us; the language is clear and the
statute is being enacted post-McCann. In other words, it could well be
argued that we are seeking explicitly to depart from the consequences
of McCann. That was the point made by my hon. Friend the Member for
Hornchurch. I think that he is
right.
I recognise the
alternative argument: the concept of the civil standard of proof being
applied on a sliding scale to such cases approaching criminal ones.
However, that arises, first, if the court thinks that the language is
not plain, and secondly, if it thinks that the principles set out in
McCann apply to a different class, but not wholly dissimilar kind of
order. We are making some assumptions about that. That takes me to the
real
point on which I want to focus. Given that the Minister’s
purpose, as I understand it, is to depart from the language of the
Green Paper and to assert the criminal standard, why on earth are we
not saying so? I come back, time and time again, to my underlining
theme—I am sorry if I am being a bore—that it is the
business of Parliament, of which this Committee is a part, to state
what it intends. If it intends to protect the citizen, it should say so
in terms and not leave a cloud of ambiguity and uncertainty hovering
around such matters. I ask the Committee to think
again. Incidentally,
if I had had the opportunity, I would have made this point during the
Prime Minister’s statement: if we are giving authority to
Parliament over the Executive, it is all well and good, but actually
none of his proposals will be of much relevance, unless or until
Members of this House begin to assert their independence from their own
Whips Offices. I did that years
ago!
The
Chairman:
Order. I do not think that we should have a
repeat of
this.
Mr.
Hogg:
I am not just semi-detached; I am in a different
estate.
Mr.
Crispin Blunt (Reigate) (Con): Just be careful; you are
from
Lincolnshire.
Mr.
Hogg:
Lincolnshire is a very independent-minded county, as
we saw to our cost four or five days ago. But that is a different
matter.
The point is
that if I am right about this—and I think that I am—it is
the business of hon. Members to assert those principles,
notwithstanding advice from their Front-Bench colleagues. It is in that
collegiate spirit of trying to capture in the votes that I hope the
Committee will approach this
matter.
5
pm
Mr.
Geoffrey Cox (Torridge and West Devon) (Con): It is in the
spirit of asserting my independence as a Back Bencher that I disagree,
with diffidence, with my right hon. and learned Friend. The Minister
will no doubt tell us that the courts are likely to apply a higher
standard of probability to the findings of fact in fraud or criminal
cases, for example. I concede that almost certainly that will be the
case. Under the common law, the courts have long operated a sliding
scale of probability, depending upon the nature of the allegation. I
would be astonished if the courts decided, under clause 1, to apply a
different test.
At
the risk, however, of having already gone too far in disagreeing with
so venerable a colleague as my right hon. and learned Friend, I am
about to add a “but”. I agree with him that a standard of
probability is still a standard of probability, but whereas a jury
would be asking, “Are we sure that this man is guilty of this
crime? Are we certain that he has done what the prosecution says he has
done?”, a judge will ask himself or herself an entirely
different question: “Even though this is a serious allegation,
do I have a high degree of
confidence that it is more likely than not that he has done what the
director of the Serious Fraud Office, for example, has
said?” That
test cannot be converted into the test of reasonable certainty that a
jury applies in a criminal case. It is simply playing with language, a
matter of pure semantics, to suggest that the test adopted in McCann is
equivalent or analogous to the test adopted by a jury in a criminal
court.
Mr.
Hogg:
My hon. and learned Friend is entirely right, but
the test could be put slightly differently. In a criminal case it is,
“Are you sure?” In this case, a judge would be saying
“Am I virtually sure?” Those are not the
same.
Mr.
Cox:
No, because in one case the High Court judge can say
to himself, “I am not sure that this man has done what the
director has said.” The directors of Revenue and Customs or the
Serious Fraud Office are the type of people who will come to a judge
asking for an order. The judge will be able to say, “I am not
sure that he has done it, but I am confident that it is highly likely
that he has,” and that will be sufficient. That will be the
test, and I concede to the Minister that, at least when making the
final inference on criminality, a judge is likely to consider whether
the person in question is highly likely to have done what the director
says, not whether he is sure. That is not the same test, and, with
respect, whatever the Minister reads into Hansard, which will be
looked at only in extremely rare cases under Pepper v. Hart, I
do not suppose that his
words—
Mr.
Coaker:
The only reason why I read it into Hansard
was that the right hon. and learned Member for Sleaford and North
Hykeham told me in relation to a number of other matters that it was
extremely important for me to read such things into Hansard. I
am not a barrister and I do not know about courts, but I was told that
that was an important thing to
do.
Mr.
Cox:
My right hon. and learned Friend is not right about
everything.
Mr.
Hogg:
You are taking
liberties!
Mr.
Cox:
I am. He is right about most things, but it is
unlikely that a court would resort to Hansard to interpret what
seems a straightforward clause that it could make sense of under the
ordinary rules of common law and statutory
interpretation.
Mr.
Blunt:
I am following carefully my hon.and
learned Friend’s arguments on this extremely important point.
Not being a lawyer, I had understood that there was a civil test and a
criminal test—one on the balance of probabilities and one on
proof beyond reasonable doubt. The Minister has referred to a sliding
scale and my hon. and learned Friend says that that concept exists. My
concern about the Minister’s remarks and the comments in the
Green Paper is that the sliding scale works in reverse of what one
would expect, so that the more serious the offence, the more likely it
is that a lower standard—
The
Chairman:
Order. That was a slightly lengthy
intervention.
Mr.
Cox:
I understand my hon. Friend’s concern, but,
with respect to him and to my right hon. and learned Friend the Member
for Sleaford and North Hykeham, I do not think that that is a serious
problem. There will be a sliding scale of probability and when
considering the criminal aspects of an allegation the judge will ask
himself, “Is it highly likely that this man did it?”
However, he will not ask himself, “Am I sure he did it?”
Those two tests are fundamentally different. One cannot equate one with
the other. There is a gulf a mile wide between them.
The reason why our criminal
trial process insists on the latter test—namely, “Am I
sure he did it beyond reasonable doubt?”—is to avoid the
many terrible miscarriages of justice that have been brought to the
public’s attention during the past 20 or 30 years.
Certainty—being sure beyond reasonable doubt—eliminates
the prospect of injustice, especially when the penal consequences of
such a finding are so serious. It is important to understand that there
is a genuine difference.
The contention is made that the
order is not a penal statute. It is suggested that it is a civil order
and that it would be an exercise of civil jurisdiction. The Minister
needs to consider closely the advice that he receives. The reality is
that the European Court of Human Rights will limit the number of
consequences ordinarily following upon conviction that can be imposed
as a part of a civil process. There will come a point when the Court
will say, “You are doing so much to this person, based on the
civil standard of proof, that although you call it a civil process it
is in truth penal.”
The European Court of Human
Rights has already said that about the legislation of other European
countries. In my judgment, there is a real risk that the Bill will be
determined to be a penal statute because of the number of consequences
that could flow froman ordinary conviction.
[Interruption.] Before the Minister or the hon. Member for Colne
Valley intervenes—in fairness, I should give way first to the
hon. Lady—may I make a final
point?
The
consequences of conviction would ordinarily mean restraint upon
one’s liberty and peril to one’s assets, which can be
seized. Those consequences will flow also from the order. It is often
said in court that imprisonment has two purposes: a punitive and a
preventive one. One could therefore apply the civil element to
imprisonment. One could provide in statute that although the court
would be allowed to imprison a person, it would be a civil
proceeding.
If we
went that far, I have no doubt that the European Court of Human Rights
would say, “That is just playing with language. That is applying
the civil term, whereas in substance, this is a criminal
penalty.” I believe that this provision is in danger of a
similar finding, because in substance it is penal. Every sentence of
imprisonment has a preventive element. This has a preventive element,
but it also has penal consequences.
Kali
Mountford:
I am grateful to the hon. and learned Gentleman
for giving way. I think that he is attempting to answer my question
before I put it. He
keeps saying, “Has he done it?” and asking whether the
court will answer that question. The court would have answered that
question when the person appeared before it for the original offence.
The order is about future behaviour, and whether the order will prevent
ongoing criminal behaviour. It is not punishment for the original
crime. Is that not the
case?
Mr.
Cox:
Illumination dawns about what the hon. Lady’s
problem is. [
Laughter.
] I do not mean generally,
but in relation to the Bill. If she returns to clause 2, she will see
that the individual who is to be the subject of an order must
have
“committed a serious
offence in England and
Wales”.
That is one
thing. The proof of commission of a serious offence, as I recollect, is
that such a person has been convicted of the
offence.
However,
subsection (1)(b)
states:
“has facilitated
the commission by another person of a serious
offence”.
That does not
require a conviction. Nor does subsection (1)(c), which
states:
“has conducted
himself in a way that was likely to facilitate the commission by
himself”.
That is a
meaningless subsection: I do not know how somebody conducts themselves
in a way that is likely to facilitate the commission by themselves of a
criminal offence. However, that does not require a conviction, so I say
to the hon. Lady that under the Bill, people can be brought to court to
be subject to a serious crime prevention order who have never been
convicted of a criminal offence in their
lives.
It would have
to be proved—it would have to be established—that in the
past the person had, for example, conducted himself in a way that was
likely to facilitate the commission by another person of a serious
offence, but he would not have had to be convicted of such
conduct.
The
Chairman:
Order. I am sorry to interrupt the hon. and
learned Gentleman. I do not want to curtail the debate and I want to
allow hon. Members to exercise as much freedom as possible, but it
occurs to me that we are going round the houses a bit. Points are being
made over and over again. I appeal not only to the hon. and learned
Gentleman but to the entire Committee to try not to be repetitive,
because it is clear to me in the short time for which the Committee has
been sitting this afternoon that some of the points being raised were
raised on previous occasions when I was in the
Chair.
Mr.
Cox:
Forgive me if I have sounded repetitious,
Mr. Benton. I was not in Committee this morning, so I do not
know what you covered; I was merely answering the hon. Lady’s
question. She is labouring under the misapprehension, as I see it, that
somebody would have to have a criminal conviction first; however, they
do not. That is why the clause with which we are dealing, on the burden
and standard of proof, is in my judgment so dangerous. It allows
somebody to be open to one of these orders—which are classed as
civil and said only to be preventive, but which are really penal in
nature, because of the potential consequences that would flow from
them—on the civil standard of proof,
which, however one may strain to approximate it to the criminal, simply
falls far short of
it.
The Committee is
invited to pass in the clause a provision that allows somebody to have
their liberty essentially removed and their assets stripped from them
when a judge is not sure that they have done what they are said to have
done, or that they will go on to do anything else like it. That is a
very grave step. I say to the hon. Lady and to other Government Members
that that has not, in 300 or 400 years of the development of the law,
ever been deemed to be wise. It has always been regarded in the past as
a step utterly inconsistent with the principles of the common law that
guarantee our
liberties.
Government
Members must be certain in takingthis step that it is
justified by proper arguments advanced by the Government, but what are
they? The consultation paper does not reveal compelling arguments, in
my judgment, for the imposition of so grave and so significant an order
as this on the slender basis of a judge thinking that it is more likely
than not, or even highly likely, that a man has done something like
this.
I ask the hon.
Lady, for whom I have the greatest respect, to reflect. Suppose that
she puts herself in the position of a friend, cousin or
neighbour—somebody whom she knows well—who is subjected
to an application of this type because, at some time in the past, they
may have acted in a way that was likely to facilitate the commission of
a crime by another. The evidence is put forward and the judge has only
to say, “Well, it’s more likely than not that he has
acted that way.” I think that the hon. Lady is likely to be very
concerned about that. Merely because it is the policy of the Government
whom she supports does not mean that we should not question it, as my
right hon. and learned Friend the Member for Sleaford and North Hykeham
said.
5.15
pm
Mr.
Blunt:
When the Minister responds, I shall want to be
clear on the issue of the sliding scale. I approach the issue not as a
lawyer, having understood until I became a member of the Committee that
the burden of proof was either the criminal one or the civil one that
is based on the balance of probabilities. We have debated the sliding
scale, but I would like the Minister to make clear to me, a non-lawyer,
exactly what it means. As I understand it, it was introduced by
McCann.
Mr.
Hogg:
No, it existed before
that.
Mr.
Blunt:
I might be wrong—it may have existed before.
Nevertheless, I should be grateful if the Minister gave us some
guidance on the meaning of the sliding scale and tell us where it comes
from in the Lords. It is a new concept to me. If the sliding scale
comes just from McCann, the Minister can say so, and if there are other
underlying sources I should be grateful for an explanation of
them.
If we are to
have a sliding scale, we need to consider in which direction it goes.
Does it mean that, the more serious the offence, the closer the burden
of proof
comes to the civil standard—the balance of
probabilities—and that for less serious offences the burden of
proof is the higher, criminal one? Serious potential offences might
justify a lower standard of proof because of the threat that they
present to society. That is where I understand us to be at the moment.
Terrorism prevention orders are assessed on the balance of
probabilities, whereas, under the McCann judgment, antisocial behaviour
orders require a higher standard of
proof. I ask the
Minister to try to ensure that, when we come to a decision, I as a
non-lawyer am no longer unclear about the situation, because I suspect
that one or two of the more learned hon. Members in the Committee might
share my lack of clarity. I am quite certain that the Minister will be
able to give an explanation that will be clear to a
layman.
The
Chairman:
Before the Minister replies, let me say that it
will be in order for him to do so, although the matters in question
have already been referred to. I ask the Minister to keep his replies
brief in relation to those matters on which he has already
responded.
Mr.
Coaker:
I will try to do that, Mr. Benton, and
if I do not you will no doubt quickly call me to order. Let me thank my
hon. Friends and Opposition Members for their contributions to the
debate, because they went to the heart of this aspect of the Bill. We
have been over much of the ground already, but it is relevant to clause
34 and indeed clause 35. Let me see whether my remarks can help,
although at the end of the day it might well be that there is simply a
difference of view in the Committee. I say that as someone who is a
non-lawyer as well. Sometimes people make judgments rather than having
scientific views on whether two plus two makes four.
We have already discussed the
civil nature of the orders at some length, so I shall not go into great
detail on amendments Nos. 18 and 22, which would change their nature.
Suffice it to say that the orders are preventive, not punitive, so that
making the proceedings criminal would be hugely
inappropriate.
The
point made by the hon. Member for Reigate goes to the nub of the matter
and I shall come to it in a moment. The appropriate standard of proof
is the flexible civil one, which we expect—in relation to the
first element of the test in clause 1—to be the same as the
criminal standard established by the House of Lords in
McCann.
Mr.
Coaker:
I just need to develop my explanation, and then I
shall give way to the right hon. and learned Gentleman. The sliding
scale was not introduced by McCann. I know that he did not mean to do
so, but, with respect, the hon. Member for Reigate got it the wrong way
round. The more serious the allegation, the higher is the standard of
proof. Involvement in serious crime is a serious matter, and will
require a very high standard of proof. The sliding scale is a general
principle of civil proceedings.
The point is an important one,
so with permission, Mr. Benton, I should like to indulge in
a slightly
lengthier explanation. It is virtually certain that the standard of
proof that would be needed under clause 1(1)(a) to satisfy a High
Court “that a person has
been involved in serious crime (whether in England and Wales or
elsewhere)”
would be
almost the same as the criminal standard. In other words, it would have
to be proved beyond reasonable doubt.
Clause 5(2)(a) refers
to
“any act that the
respondent can show to be reasonable in the
circumstances”.
In those
cases we would expect the standard of proof to be the balance of
probability. Therefore it is perfectly reasonable for a judge in the
High Court to distinguish between those two parts of the Bill. As the
right hon. and learned Member for Sleaford and North Hykeham pointed
out, the sliding scale is not a novel idea for the High Court. It uses
it as a matter of course in civil proceedings. It is not new; it has
not arisen as a result of McCann. McCann has tried to clarify the
situation with respect to civil
orders.
Mr.
Hogg:
I understand the Minister to say that in the
majority of cases where the consequences are serious he expects
something like the criminal standard. He will say that that follows
from the ordinary principles of law. But he must look at page 32 of the
Green Paper. The Minister says that it his intent that prevails and
I’ll accept that for these purposes. But the Green Paper was
drafted by the lawyers, and they thought that one could get the balance
of probability as the test, notwithstanding McCann. That is a serious
problem which he has to
face.
Mr.
Coaker:
That may have been in the Green Paper, but I am
trying to make clear to the Committee what the Government expect, not
as a result of what was in the Green Paper, but as a result of this
Bill and the various comments that I and others have made here and my
noble Friend Baroness Scotland made in the other
place.
I should like
to quote from the McCann judgment. Lord Steyn
said:
“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 matters involved, at
least some reference to the heightened civil standard would usually be
necessary”.
Lord Hope
said:
“But it
is not an invariable rule that the lower standard of proof must be
applied in civil
proceedings.”—
Again,
the point that the hon. Member for Reigate
made—
“I
think that there are good reasons, in the interests of fairness, for
applying the higher standard when allegations are made of criminal or
quasi-criminal conduct which, if proved, would have serious
consequences for the person against whom they are
made.”
Jeremy
Wright:
I am grateful to the Minister for giving way. I
understand that he is attempting, as did his ministerial colleagues, to
provide as much clarity as possible. But surely when people come to
look at this legislation they will start with the Bill and then,
perhaps, they will look at what he said in Committee. He said almost
everything that the amendment sets out to achieve. I simply do not
understand, and I am fairly sure that people outside the House will not
understand, why he cannot just put what he has said, or some variation
of it, into the Bill. There is confusion between what he relied on in
clause 1(1)(a), which is to say that the High Court must be satisfied,
and saying that the civil standard of proof must be applied. The simple
way around this is to set out exactly what the Government wish the
courts to
do.
Mr.
Coaker:
I shall simply repeat what we have said ad
nauseam. There is a difference of view. We do not think that it is
necessary for that to be on the face of the Bill. I have laid out what
the Government expect with respect to the standard of proof and serious
crime prevention orders. Indeed, even the hon. and learned Member for
Torridge and West Devon has accepted that High Court judges are used to
dealing with the sliding scale with respect to the standard of proof in
civil proceedings. That is what we would expect. The McCann judgment
clarified that the more serious the offence, the higher the standard of
proof that one would expect to be necessary for the court to be
convinced of anything. With respect to clause (1)(1)(a) one would
almost expect it to be virtually identical to the criminal
standard.
Mr.
Cox:
I agree with almost all of what the Minister said,
except that even the heightened civil standard is nowhere near the
criminal standard of proof. The heightened civil standard simply asks,
“Is it much more likely than not?” The criminal standard
asks, “Is it certain?” The ordinary civil standard is,
“Is it more likely than not?” Hon. Members can work out
for themselves the differences between those tests, but that is the
situation.
Mr.
Coaker:
The hon. and learned Gentleman makes his point and
people will have to make up their mind where they stand on the issue.
As I said, our view is that the standard of proof is a sliding scale,
which is flexible, and which will be applied appropriately by the High
Court.
To finish my
remarks, the key question in determining whether a measure is civil or
criminal is whether it is preventative or punitive. As Lord Hope made
it clear in the McCann case, if a measure is preventative it is likely
to be classified as a civil measure. The reason why the Government
believe that the orders are civil measures goes to the heart of the
Bill which, as my hon. Friends have said in our debates today, is about
preventing serious crime, supporting victims and putting them
first.
The hon.
Members for Taunton and for Hornchurch talked about penalties. These
measures are not penalties or punishment for past crimes; they are
about preventing crime, and harm, in the future, and the vast majority
of our constituents would want us to put in place measures that do
that.
James
Brokenshire:
It is clear that there is a divergence of
view, and I am not going to prolong the debate any further to try and
bridge the gap, because it
is there. It is fine for the Minister to say, “This is about the
prevention of crime,” but we need something that is clear, that
will work, and which the courts will ensure is robust; that is what the
amendment would ensure, and I am disappointed that the Minister has
turned his face against it. The best way for the House to ensure that
there is clarity for the courts in understanding how a Bill is intended
to operate in practice is by the language on the face of the Bill and I
am sorry that the Minister does not accept that logic. I will test the
Committee’s appetite for the provision because it is so
important, by dividing the Committee on the amendment.
Q
uestio
n put,
That the amendment be made:—
The
Committee divided: Ayes 7, Noes
8.
[Division
No.
20
]
Question
accordingly negatived.
The
Chairman
,
being of the opinion
that the principle of the clause and any matters arising thereon had
been adequately discussed in the course of debate on the amendment
proposed thereto, forthwith put the Question, pursuant to Standing
Order No. 67, That the clause stand part of the
Bill.
Question
agreed
to.
Clause 34
ordered to stand part of the
Bill.
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