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Lord Kingsland moved Amendment No. 16:
- Page 4, line 5, leave out "on a balance of probabilities" and insert "to the standard of proof applicable in civil proceedings"
The noble Lord said: The amendment is about the standard of proof applicable in civil proceedings, which is generally on a balance of probabilities. However, as I know many noble Lords will be aware, the degree of probability varies from case to case. When considering whether a defendant has been guilty of a criminal offence, a civil court will naturally want a higher degree of probability than it would require in, for example, an allegation of negligence. A civil court would not go so far as to apply the criminal standard of proof, but would look for a degree of probability commensurate with the issue. They usually apply a certain amount of common sense and flexibility in conducting that task.
Clause 6 provides that any questions arising under subsections (4) or (5) must be decided on a balance of probabilities. In my submission, that is an unacceptable constraint on a civil court. That court must be given flexibility. We believe that it is better to provide that decisions must be proved to the standard of proof applicable in civil proceedings rather than invariably on a balance of probability. I beg to move.
Lord Thomas of Gresford: I support the amendment. The expression "balance of probabilities" is well
known and well used, but it is slightly unsatisfactory, because it could mean, for example, that when there are two competing sets of facts that are almost equally improbable, the less improbable one will succeed. The civil courts seek to achieve an acceptable degree of probability, which is a slightly different concept.In the context of this legislation, the decision as to whether a person enjoys a criminal lifestyle depends on whether he has been convicted of an offence set out in the schedule or had three convictions within a particular period or over a period of six months. The fundamental point is that there has already been a conviction of conduct beyond reasonable doubt to the criminal standard. The issue is, in subsection (4), whether the criminal has benefited by his criminal conduct and, in subsection (5), what is the recoverable amount, having regard to the extent to which he has benefited.
On that latter question of the recoverable amount depends the possibility of a lengthy term of imprisonment. In default of payment of a sum in excess of £1 million, for example, a person can be sentenced to serve 10 years' imprisonment. There is a reducing scale from there. Loss of liberty is certainly involved.
The civil standard of proof is well understood to require something more than a balance of probability if a person's liberty is involved. Perhaps it is best expressed in the words of Justice Dixon in an Australian case called Briginshaw. He said:
- "The seriousness of an allegation made . . . the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of the kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency".
Lord Rooker: The amendments revisit a theme that has been used previously in the Bill. In its simplest terms, the Government's intention is that the standard of proof applied in confiscation proceedings should be the flexible civil standard. We believe that the fact that the Bill refers to the balance of probabilities does not make any difference in that respect. The Bill refers to the balance of probabilities rather than to the standard applicable in civil proceedings because we have received advice that in some civil proceedings, such as those for contempt, the applicable standard of proof is beyond reasonable doubt. We want to make it clear that that standard of proof—beyond reasonable
doubt—does not apply in confiscation proceedings. The use of the expression "the balance of probabilities" helps to achieve that end. Nor do we believe that the expression "the balance of probabilities" applies a lower standard of proof to confiscation proceedings than the civil standard. We are fortified in our view on this point by earlier case law, although—I am going to put myself in a pit here—I do not have one to quote. If need be, I shall get one. Briefly, the effect of the jurisprudence is that the references to the balance of probabilities import flexibility, but, at the same time, require a standard lower than the criminal standard of beyond reasonable doubt.I hope that that explains our position. We want to be able to use the flexible civil standard, but we have received advice that in some proceedings, particularly contempt proceedings, that has been interpreted as beyond reasonable doubt, which would go much too far for confiscation proceedings.
Lord Kingsland: I thank the Minister for that extremely helpful reply. I look forward to hearing the noble Lord's statement read out many times in the High Court when this matter is addressed by counsel. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Baroness Buscombe moved Amendment No. 17:
- After Clause 6, insert the following new clause—
The noble Baroness said: In moving Amendment No. 17, I shall speak also to Amendment No. 148, a related amendment applying to Northern Ireland.
Clause 101 gives certain limited rights to the spouse or former spouse of a person in relation to whom a confiscation order has been made and to children of the family. It applies where the family home has not been acquired as a benefit from criminal conduct. If that is the case, it will be necessary before the disposal of a family home to obtain the consent of the occupying spouse or the authority of the court.
On an application for such authority, the court must have regard to all the circumstances of the case including the needs and financial resources of the spouse or former spouse and the needs and financial resources of any child of the family. The court then decides whether to give its full authority. However, it can postpone any disposal for such period not exceeding 12 months as it may consider reasonable in the circumstances. It can also grant such authority subject to such conditions as it may prescribe. That gives some protection to a spouse, former spouse or children of the family.
The curiosity of Clause 101 is that it applies only in Scotland. In England, Wales and Northern Ireland—however great the need of a spouse, former spouse or the children of the family, and however pressing the circumstances of the case—the court will never have an opportunity to postpone giving authority for even a couple of months. In England, Wales and Northern Ireland, there is no necessity to obtain the relevant consent or to ask the court for authority to carry out the disposal.
Although I appreciate that there are interesting historical reasons for spouses and children being treated better in Scotland, historical reasons cannot justify what would otherwise be an injustice. Surely, it cannot be right that spouses and children are treated better in Scotland than they are in England, Wales and Northern Ireland. All must be treated the same. Today, regardless of history, we must ensure that that happens. The proposed new clauses will give spouses, former spouses and the children of the family exactly the same rights in England, Wales and Northern Ireland as they will have in Scotland.
There is one drafting point. References in Amendment No. 17 to "the administrator" should be read as "the receiver" to reflect the fact that we are talking about confiscation proceedings in England and Wales. I beg to move.
"DISPOSAL OF FAMILY HOME: ENGLAND AND WALES
(1) This section applies where a confiscation order has been made in relation to any person and the prosecutor has not satisfied the court that the person's interest in his family home has been acquired as a benefit from his criminal conduct.
(2) Where this section applies, then, before the administrator disposes of any right or interest in the person's family home he shall—
(a) obtain the relevant consent; or
(b) where he is unable to do so, apply to the court for authority to carry out the disposal.
(3) On an application being made to it under subsection (2)(b), the court, after having regard to all the circumstances of the case including—
(a) the needs and financial resources of the spouse or former spouse of the person concerned;
(b) the needs and financial resources of any child of the family;
(c) the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b),
may refuse to grant the application or may postpone the granting of the application for such period (not exceeding twelve months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.
(4) Subsection (3) shall apply—
(a) to an action for division and sale of the family home of the person concerned; or
(b) to an action for the purpose of obtaining vacant possession of that home,
brought by the administrator as it applies to an application under subsection (2)(b) and, for the purposes of this subsection, any reference in subsection (3) to the granting of the application shall be construed as a reference to the granting of decree in the action.
(5) In this section—
"family home", in relation to any person (in this subsection referred to as "the relevant person") means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the relevant person and his or her spouse or by the relevant person's spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child of the family;
"child of the family" includes any child or grandchild of either the relevant person, or his or her spouse or former spouse, and any person who has been treated by either the relevant person, or his or her spouse or former spouse, as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be;
"relevant consent" means in relation to the disposal of any right or interest in a family home—
(a) in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;
(b) where paragraph (a) does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person."
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