Clause
37
Disclosure
of information in accordance with
orders
Mr.
Browne:
I beg to move amendment No. 5, in
clause 37, page 23, line 35, at
end add—
‘(3)
Notwithstanding this, the rules on admissibility of evidence to be
observed in such proceedings shall be the same as those observed in
trials on indictment; and no person shall be required in such
proceedings to answer any question or to produce any document which he
could not be required to answer or produce in similar proceedings in a
trial on
indictment.’.
I
will be genuinely brief. The amendment would ensure a higher standard
of evidence than the civil standard. You may feel that this subject has
been discussed to your satisfaction, Mr. Benton, but let me
take a little longer to clarify my point. We believe that the civil
standard of proof—on the balance of probabilities—is not
sufficient, whereas the criminal standard, beyond reasonable doubt,
would offer greater reassurance. Baroness Scotland said in the other
place that the likely standard of proof for the orders would
be
“very close to the
criminal standard of beyond reasonable doubt.”
—[Official Report, House of Lords, 7 February
2007;Vol. 689, c.
729.]
I am not a lawyer, but I
think that “very close” is an extremely loaded
expression. It is hard to be confident about precisely what it will
mean in practice. The
amendment is yet another attempt to move the Bill towards firmer and
more rigorous standards of evidence and
proof.
Mr.
Coaker:
I ask the Committee to resist the amendment, which
would change the rules regarding the admissibility of evidence in
proceedings relating to an order from those that apply in civil
proceedingsto those that apply in a trial on indictment. The
amendment also seeks to provide that in proceedings for an order, the
relevant person cannot be required to answer any question or to produce
any document that they could not be required to answer or produce at
such a trial.
The
amendment is undesirable because the civil procedure rules already
provide significant and wide-ranging powers to manage the evidence that
will come before the court. The court is best placed to determine which
pieces of evidence are relevant and should be admitted in proceedings
and what weight should be accorded to each. The court will ensure that
only relevant and appropriate evidence is admitted. It is both
unnecessary and inappropriate to constrain that flexibility, and I ask
the hon. Gentleman to withdraw the amendment. He went over some old
ground in his comments, but these are civil orders, not a criminal
penalty, so the strict rules of evidence that apply to criminal trials
should not apply. Instead, the civil rules of evidence should apply,
particularly in relation to
hearsay.
Mr.
Browne:
I would rather not withdraw the amendment, and
should like to test the Committee’s
view.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 2, Noes
8.
Division
No.
21
]
Question
accordingly negatived.
Question proposed, That
the clause stand part of the
Bill.
James
Brokenshire:
I rise briefly to seek clarification and to
ask the Minister to reconsider the drafting of the clause. Subsection
(1)(a) provides that if an order requires something to be done, it is
not, by virtueof the clause, intended to breach any obligation
of confidence. However, subsection (2) appears to suggest that there
might be an exclusion. It
states:
“But see sections
12 to 15”,
which is
slightly circular language. I therefore ask the Minister to reflect on
the wording and to make it clear
that the exclusions in clauses 12 to 15 override the provisions
contained in clause
37(1).
Mr.
Coaker:
Of course, if the hon. Gentleman thinks that it is
unclear, we will consider it.
Question put and agreed
to.
Clause 37
ordered to stand part of the
Bill.
Clause
38
Powers
of law enforcement officers to retain
documents
Mr.
Hogg:
I beg to move amendment No. 131, in
clause 38, page 23, line 43, at
end insert—
‘(1A) Where a
law enforcement officer has retained an original document under
subsection (1) he
shall—
(a) on the
request of the person who is the subject of the serious crime
prevention order; or
(b) at the
request of any person who was given the opportunity to make
representations in the proceedings concerned by virtue of section
10(1), (2) or (as the case may be)
(3);
provide that person with a
copy of the retained document unless, on application of a person
mentioned in this subsection, a court to which an application is made
otherwise
orders.’.
In
Committee, we have debated many matters of principle, but this is a
matter of detail. I might be wrong, but it looks to me as though there
might be a significant problem that has not been addressed.
The clause gives power to law
enforcement officers to take documents, both copies and originals, and
to retain them. One needs to keep in mind that the person who is to be
made the subject of the order might well have a legitimate need for a
copy of the documents, either to deal with the allegations that have
been made—that is natural justice—or to carry out his
ordinary business. That applies also to third parties, who, as we all
understand, might be affected by the order and might have a legitimate
need to see copies of the documents, to see whether they wish to make
representations to the court, as is provided for in the Bill, or
otherwise to conduct their business.
6
pm
It is possible
that I have overlooked a passage, but when I look at the clause, I see
no obligation on the law enforcement officers who have taken possession
of the originals or copies of documents to deliver a copy on request to
the subject of the order or to a third party. That seems to me to
offend both natural justice and general disclosure laws that apply in
criminal and civil courts.
There might be exceptional
cases in which it would be wrong to provide the subject of the order or
a third party with a copy. I suppose that one can construct such cases
and I have provided for that in the amendment, which would give the
enforcement agency the power to go to the court to get relief from
delivering up a copy. As a matter of general principle, however, it is
right that a law enforcement agency should have to deliver to the
person who is the subject
of the order or to a third party a copy of the relevant documents on
request. In that spirit, I move the
amendment.
Mr.
Coaker:
I am afraid that we shall resist the amendment. It
is unnecessary in relation to the subject of the order, who would be
the originator of the document would therefore have had the opportunity
to make copies. In relation to third parties, it does not follow that,
simply because a third party has been given leave to make
representations under clause 10, they should have access to all the
material produced under the terms of the order. The subject of an order
should not need to make an application to the court every time that he
wishes the contents of a document that he has provided not to be passed
on to a third party. That would be wholly unreasonable to the subject
of the order.
In
addition, the amendment could put in jeopardy possible subsequent
investigations or prosecutions, as it makes no allowance for the
applicant authority or law enforcement agency to make an application to
the court for non-disclosure. In the light of those comments, I ask the
right hon. and learned Gentleman to withdraw his
amendment.
Mr.
Hogg:
I am bound to say that I am disappointed by that
response. I draw on a certain amount of experience in this matter.
About three weeks ago, I was acting in a case in which the police had
seized every single document on the premises and carted them all away.
They kept possession of them for more than two years. The idea that my
client had access to copies is simply wrong; he had neither copies nor
originals. He was facing confiscation proceedings under the Proceeds of
Crime Act 2002, so that was a serious deprivation to him.
In appropriate cases, the law
enforcement officer should be obliged to provide the person who is to
be made the subject of the order with a copy, which he otherwise would
not have. If he had a copy, he would not make the application. He would
make the application because he did not have the copy and he needed it.
I am saying no more than the principle of natural justice and
disclosure in the ordinary criminal and civil courts requires. I hope
that the Minister will think again, and I do not withdraw my
amendment.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 7, Noes
8.
Division
No.
22
]
Question
accordingly negatived.
Clause 38 ordered to stand
part of the
Bill.
Clauses
39 and 40 ordered to stand part of the
Bill.
Clause
41
Intentionally
encouraging or assisting an
offence
James
Brokenshire:
I beg to move amendment No. 173, in
clause 41, page 25, line 26, leave
out ‘foreseeable’ and insert
‘reasonable’.
We
now move to part 2, which deals with inchoate offences. The amendment
is probing in nature. I recognise that the language is not as effective
as we would choose to make it. The amendment focuses on the use of the
word “forseeability”. When we use that word, are we
talking about a subjective or objective test? In other words, is it
foreseeable by the individual that that was the consequence or was it
something that should have been foreseen by them and that a reasonable
person would have foreseen in the circumstances?
In moving the amendment, I
stress that it is probing in nature and is designed to gain greater
understanding of the context of this clause and, in particular, the use
of the word
foreseeable.
The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle):
Although I have been on this Committee for only
one day, I feel like I have been here for a very long time.
[Interruption.] Hon. Members should not misunderstand me. It is
simply that I have been waiting for so long to get to my feet, and not
because of the content of our debate, which has been interesting,
illuminating and lively. Committees are always good when they are those
things.
May I also
say what a pleasure it is, Mr. Benton, to be subject to your
chairmanship? While it appears gentle at times, it is actually more
effective than some may think. You have kept us well in order and we
are very fortunate to have
you.
May I begin by
thanking the hon. Member for Hornchurch for making it clear that his
amendment is probing in nature? We do not then have to dance on the
head of a pin over the difference between foreseeable and reasonable. I
think that will do us all a favour at this time of the
afternoon.
Briefly, I
want to set out the offences that we are dealing with here. We will
come back to them in clause stand part as well. Clause 41, which is in
part 2, creates an offence if a person, whom I shall refer to as
D,
“does an act capable
of encouraging or assisting”
another person, to whom I shall refer as
P, to commit an offence, and D
“intends to encourage or
assist”
that
offence.
Clause 42
creates an offence that is committed when
D
“does an act capable of
encouraging or
assisting”
P to commit an
offence, and D “believes” that P will commit the offence
and
“that his act will
encourage or assist”
P to
commit the offence.
Clause 43
creates an offence that is committed when
D
“does an act capable of
encouraging or
assisting”
P to
commit
“a number of
offences; and...believes...that one or more of those offences
will be committed...and...that his act will encourage or
assist”
one or more of
P’s offences.
We will be discussing the
nature of clauses 42 and 43 in more detail at the appropriate point if
we have clause stand part
debates.
The amendment
relates to clause 41, but in order for liability to arise under the
clause, it must be proved that D
“intends to encourage or
assist”
an offence. The
notion of intention is given a particular meaning by subsection (2),
which states that D
“is
not to be taken to have intended to encourage or assist the commission
of an offence merely because such encouragement or assistance was a
foreseeable consequence of his
act”.
I hope that it
assists the hon. Member for Hornchurch if I say that what we are trying
to get at is that intention should be interpreted in a narrow way, and
should exclude the concept of virtual certainty. It is equivalent to
meaning that D’s purpose must be to assist or encourage the
offence.
The measure
was a recommendation from the Law Commission following a lengthy debate
and much concern. Following consultation, we have followed that
recommendation. I hope that the fact that the measure has a long
pedigree of consideration by erudite and learned people behind it will
assist me in persuading the hon. Gentleman and his hon. and right hon.
and learned Friends, and that he would be perfectly safe to withdraw
the amendment. I assure him and reiterate that we have the same purpose
in mind, which is to ensure that the notion of intention is interpreted
narrowly. I hope that the hon. Gentleman feels able to withdraw the
amendment.
James
Brokenshire:
I am grateful to the Under-Secretary for that
statement of the intent behind the clause. The measure will obviously
sit within a range of case law. In the light of her explanation and
confirmation, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Clause 41 ordered to stand
part of the Bill.
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