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Lord Lloyd of Berwick moved Amendment No. 89:
- Page 147, line 12, at beginning insert "Subject to section 243A,"
The noble and learned Lord said: My Lords, the substantive amendment is Amendment No. 92. I apologise for the length of that amendment, but it brings together several of the concerns expressed in Committee, including those expressed by the noble Lord, Lord Renton.
Noble Lords on the Government Front Bench will, by now, know that I do not like Part 5 of the Bill. I wish that it were not there. I have learnt, however, that one cannot always get what one wants in this world, so my amendment is an attempt to improve Part 5 in two ways. First, it would remove what seem to me to be the worst of the injustices that Part 5 will produce. Secondly, it would make Part 5 less vulnerable to attack under the Human Rights Act 1998.
The amendment acknowledges that there may be cases in which the civil burden of proof is justifiable and appropriate. I have in mind, in particular, cases—referred to so often at Second Reading and in Committee—in which the offender is dead or is beyond the seas or cannot be brought before the court for some other reason. The amendment yields to the Government's desire to introduce a civil burden of proof in such cases, but it preserves the ordinary criminal burden of proof in cases in which the defendant is before the court and denies his guilt.
Ministers have said on many occasions that the first preference must always be for a criminal trial, followed by the procedure under Part 2. That is as it should be, and I have no difficulty with it. But if the offender is entitled to trial by jury in cases where the evidence against him is strong enough to secure his conviction, why should he be deprived of his right to trial by jury where the evidence is not so strong? Where is the justice in that?
Indeed, it might be said to be contrary to the document regarded as the foundation of our civil liberties; I refer of course to the Magna Carta. Chapter 39 provides:
- "Nor will [we] proceed against"—
- "or prosecute any free man save by the lawful judgment of his peers".
Yet that seems to be the effect of Part 5, under which the alleged offender will have no right to the lawful judgment of his peers. As I understand it, it is then said that that does not matter because proceedings under Part 5 will not result in the offender's conviction. But the proceedings will result in a finding of guilt. For unless the alleged offender before the court has been found guilty, the judge will have no power to make a recovery order against him. That follows as night follows day from the interaction of Clauses 241, 242, 243 and 301.
Therefore, as the Bill stands, a defendant can be found guilty of the most serious crimes in the calendar on the civil burden of proof without the option of trial by jury. That cannot be right. The distinction between a conviction and a finding of guilt by the High Court judge is simply illusory.
I am also concerned about how Part 5 will work in practice. Where the defendant's guilt is in issue, I presume that he will be entitled to call witnesses in his defence. I presume also that he will be entitled to all the normal safeguards of a defendant in criminal proceedings. I need not remind your Lordships that he is entitled to a fair trial whether the proceedings are characterised as civil or criminal. If he is to have a fair trial, I presume that the director of the agency will have to give full disclosure of all relevant material in the normal way in accordance with the Attorney General's guidance. I hope that the noble and learned Lord the Attorney General will confirm in due course that that is so.
What happens if the defendant is after all found guilty by the judge of the underlying offence? I presume that he is entitled to appeal, but to whom does he appeal? I may have missed it, but I can find no reference to an appeal in Part 5. I assume that that is an oversight. The question then arises: is the appeal to be to the Civil Division of the Court of Appeal? If so, will the Master of the Rolls find sufficient Lords Justices to decide the cases? I assume that he has been consulted on the matter.
What test will the civil Court of Appeal apply in those circumstances? Will it be a rehearing, as is normal practice in civil appeals, or will the civil Court
of Appeal apply the criminal test and allow the appeal only if the judge's verdict is unsafe? Alternatively, will the appeal be to the Criminal Division of the Court of Appeal? I am sorry to ask so many questions, but surely we should be clear at this stage about where we are going.I turn to the consequences of a finding of guilt by the judge. I shall take one illustration. Will the defendant, so convicted, have to declare that he has been found guilty under Part 5 when he fills out an application for a driving licence, or any of the innumerable forms that one has to fill in where one is asked whether one has been convicted or found guilty of an offence? I presume that the answer is yes, but surely that shows that we are in the field of criminal, not civil law. Surely it shows the difficulties that we shall get into if we try to make the civil courts do the work of the criminal courts, for which they are not fitted.
I remain to be convinced that the Government have considered those matters, as I hoped they would. I turn to another matter. It is said that civil and criminal proceedings often overlap in practice; for example, where a plaintiff brings civil proceedings for assault after being acquitted by a jury. Another example is civil proceedings for deceit or fraud.
There is a crucial and—to my mind—obvious difference between those cases and what will prevail under Part 5. In civil proceedings the basis of the plaintiff's claim is that he has suffered loss or damage. He is therefore entitled to take advantage of the civil burden of proof. But under Part 5 the plaintiff is the state. How can it be seriously argued that the state has suffered loss or damage by reason of the defender having stolen my motor car? If the state has not suffered loss or damage in those circumstances, the correct analogy is not a civil action for damages—whether for fraud or assault—but a fine, for which the burden should surely be the ordinary criminal burden of proof.
I turn to Amendment No. 92. Subsection (1) makes it clear that the amendment applies only to cases where the offender is before the court. It does not apply where the offender is dead, overseas, or otherwise unavailable. Subsection (2) entitles the defendant to go before a jury if he denies that he is guilty of the alleged offence. Subsection (3) is self-explanatory. Subsection (4) provides that the director must proceed under Part 2 if the offender is convicted. Where the question of guilt is decided by the judge, subsection (5) provides that he must apply the ordinary criminal burden of proof to that question, but that he may apply the civil burden of proof to all other questions. Subsection (6) is important because, if a defendant is found guilty, it ensures that the recovery order cannot antedate the Act's coming into force.
All retrospective legislation is undesirable. Retrospective penalties are more than undesirable; they are truly abhorrent. That is why they are forbidden by the second sentence of Article 7 of the convention. That merely puts into words what has always been the common law of England. I noted that when the noble and learned Lord the Attorney
General was dealing with Amendments Nos. 7 and 8 today, he said that the defendant must always be entitled to know what the consequences of his wrongdoing will be before he commits the offence in question. Exactly the same reasoning applies here.The noble and learned Lord said that Part 5 does not impose a penalty, but that is the very point which was decided against the United Kingdom in the case of Welch in 1994. It is said that Welch can be distinguished, for in that case the confiscation order was made after a conviction. That is true, but here it will be made after a finding of guilt by the judge and I ask where is the difference.
It is then said that in Welch it was a confiscation order and not a recovery order. That is true, but what kind of distinction is that? In both cases the state takes the defendant's money on the ground that it does not belong to him. One thing is absolutely clear from Welch and innumerable other cases at Strasbourg; that the enforcement of convention rights does not depend on distinctions of that kind.
Therefore, if in a case in which the judge has found the defendant guilty of the underlying offence, and if he goes on to make a recovery order against him, it is as certain as anything can be in law—and nothing is certain—that the Strasbourg court will follow its decision in Welch. That being so, a retrospective recovery order will surely be struck down.
I suggest, therefore, that it would be far better to confine the retrospective operation of Part 5 to those cases where the offender is not before the court—whether he is dead, overseas or whatever—because in those cases the retrospective order may at least stand a chance of being upheld. That will not be the case where the defendant has been convicted by the judge. That is what subsection (6) seeks to do.
I know that the noble and learned Lord the Attorney General takes a different view of Welch. He believes that the case can be distinguished. All I can say—and I say it with genuine respect—is that I feel bound to disagree with him. I beg to move.
7 p.m.
Lord Renton: My Lords, I warmly support the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick. I do so mainly because it overcomes the deficiencies of Part 5, to which he referred in detail in Committee, but also because it goes a long way towards reducing the anomaly that I pointed out in Committee. The anomaly arises because Clause 240(2) refers to,
- "any proceedings brought for an offence in connection with the property".
- "The court or sheriff must decide on a balance of probabilities whether it is proved ... that any matters alleged to constitute unlawful conduct have occurred, or ... that any person intended to use any cash in unlawful conduct".
Having made that point in Committee, the noble and learned Lord the Attorney General kindly said that I had made a helpful and important observation. Although Amendment No. 89 does not go quite as far as I suggested, it goes a long way towards removing the anomaly. Therefore, I hope that the Government will accept it. I regard it as very important not merely in relation to the narrow point I have made but because it improves Part 5 of the Bill.
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