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Lord Renton: My Lords, I earnestly hope that the Government and your Lordships will support the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick. We have to remember that he has moved it in the light of his great experience as a Law Lord. I shall be brief. There is not much need to repeat the arguments that the noble and learned Lord has used, but I want to emphasise one point. The trouble is that Clause 246 ignores the difference in the burden of proof in several criminal cases.

I remind your Lordships that in civil actions the burden of proof is based on the balance of probabilities, but in criminal cases there is a stronger burden of proof—a burden of proof beyond reasonable doubt. Although Clause 246 deals with civil cases and criminal cases, that difference is ignored. Amendment No. 7 would put the matter right.

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Lord Thomas of Gresford: My Lords, on Report my noble friend Lord Goodhart indicated that the Government should stew in their own juice, as the noble and learned Lord, Lord Lloyd, pointed out. But he also gave strong support to these amendments. From these Benches, I do not propose to repeat the arguments so eloquently made by the noble and learned Lord, but the Government's response on Report was a familiar one: we all know what is going on. We know that such people are guilty; we have intelligence to that effect. It is the same kind of sentiment as was expressed recently by the Chief Constable in North Wales. He remarked that it was tragic that 63 per cent of people who appeared on trial before the Crown Court in North Wales were acquitted. We were not sure whether he was blaming the juries, the defence lawyers or his own force for failing to bring forward adequate evidence.

That is the point. Adequate and proper evidence needs to be brought forward before these draconian remedies are brought into effect. Ordinary standards of the criminal law ought not to be set aside. Suspicion of crime is not enough. We on these Benches will again strongly support the amendment.

5 p.m.

Viscount Bledisloe: The noble and learned Lord has made an extremely eloquent case. First, perhaps I may ask him a technical question. The "unlawful conduct" can, we see, be conduct committed outside the United Kingdom. How is an English criminal court to try an offence which was committed outside its jurisdiction—in a foreign jurisdiction—which it has no jurisdiction to try as a criminal offence? That is my technical question.

Perhaps I may now become bolder and suggest a possible fallacy in the noble and learned Lord's argument. He said that unlawful conduct is defined as the commission of a crime. He then used the word "crime" instead of "unlawful conduct". But surely there is a difference between being certain that a person has accumulated his wealth by criminal activity and being able to prove a specific crime by which he acquired it. You may not be able to prove that he smuggled in X quantity of drugs on a certain day and sold them on the street the next day. But you may be able to prove—and perhaps you ought to have to prove beyond reasonable doubt—that he could not possibly have accumulated the enormous wealth that he has without ever going to work, without ever going to a casino, and without ever going to the horse races—and how on earth did he get his wealth, especially if he absolutely declines to prove it and if you can prove that in the past two years he has flown 14 times to and from Colombia and cannot explain what those journeys were for?

Surely there will be many cases in which it could be proved, even beyond reasonable doubt, that a person's wealth had been accumulated by unlawful conduct,

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but you could not prove any specific time with the full particulars necessary to enable you to obtain a conviction.

Lord Lloyd of Berwick: My Lords, perhaps I may—

Lord McIntosh of Haringey: My Lords, as the noble and learned Lord has the right of reply and as we are at Third Reading, it may be better if he answers the question at that time.

Lord Kingsland: My Lords, the intellectual quality and persuasiveness of the speech by the noble and learned Lord, Lord Lloyd, ought by now to have convinced the Government to accept his amendment.

The Government's objective under Part 5 of the Bill is in principle a laudable one. It is to deprive drug traffickers and other criminals of their ill-gotten gains. The trouble is that, in doing so, they have succeeded in expropriating the right of the British citizen to trial by jury.

Our initial instinct on these Benches was to adopt the approach taken by the noble Lord, Lord Goodhart; that is to say that we disapproved of the approach taken by Part 5 but thought that it ought to be left to the courts to settle the matter. Our view changed, in the course of the Bill proceedings, for three reasons. First, the noble and learned Lord, Lord Lloyd of Berwick, as he rightly said, convinced us that this was a negative approach. We want, if possible, to make Part 5 work. That is precisely what the noble and learned Lord has done.

The second thing he did was to persuade us that, if someone is entitled to a right to trial by jury in circumstances where the evidence is strong enough to convict that person, he or she ought to be entitled to that same right in circumstances where the evidence is not strong enough to convict them. The right to trial by jury is a fundamental building block of our constitutional freedom. It is wholly undermined by Part 5 of the Bill. There is no real distinction between a confiscation order under Part 2 and a recovery order under Part 5; yet Part 2 provides the guarantee of trial by jury and Part 5 does not.

There is a final reason why I am convinced that your Lordships should accept the amendment. It is one that I gleaned, in the course of the past few days, from the Committee stage of the Nationality, Immigration and Asylum Bill. In Clause 4 of that Bill, the Government seek to deprive individuals, born in the United Kingdom, of their citizenship if their conduct seriously prejudices the vital interests of the United Kingdom. The Home Secretary determines the existence of that situation on his own subjective judgment.

I regard that as a step further down the undesirable road sign-posted by Part 5 of this Bill. I applaud the objectives of the Government under Part 5, just as I applaud the objectives of the Government under the Nationality, Immigration and Asylum Bill. But the Government are seeking to achieve the results that they want by wholly undermining the criminal law of this country built up over many centuries. Surely the

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right way to get the result under Part 5, as indeed under Clause 4, is to define the offences more clearly and more precisely in criminal law so that the proper criminal procedures in the criminal courts can be used.

The noble and learned Lord the Attorney-General—who is looking at me with a bewildered expression—himself referred to 400 criminals in the country who could not be prosecuted by the prosecuting authorities. Surely in those circumstances it is up to the Government to define the offences more precisely, so that these criminals can be dealt with through the criminal courts.

For all those reasons, I support the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, and trust that the Government will accept it.

The Attorney-General (Lord Goldsmith): My Lords, the noble and learned Lord, Lord Lloyd of Berwick, has throughout made plain his opposition to the new civil recovery scheme in Part 5 of the Bill. He is entirely consistent in continuing to oppose it. That is not something that can be said of the approach of the Front Bench opposite and—I think, although I am not entirely clear—from the Liberal Democrat Benches.

I remind the House, and indeed the noble Lord, Lord Kingsland, of what was said at Second Reading, when the noble Baroness, Lady Buscombe, made it very clear that this:


    "will signal a will and a wish to assist the Government in producing a workable and effective piece of legislation".

She said specifically in relation to Part 5:


    " . . . we do not want to obstruct the key objectives of the Bill, that is a real concern. We want to see those who have committed criminal offences deprived of their ill-gotten gains. [Official Report, 25/3/02; cols. 19-23.]

I shall not mince my words. The amendment proposed by the noble and learned Lord, which we debated fully on Report although we did not divide, will not improve the Bill. It will not be workable in the way that he proposes. I give way to the noble Lord.

Lord Kingsland: My Lords, I am most grateful to the Minister, not only for giving way but also for promoting me in the Peerage. I believe he referred to me as "the noble Earl".

The noble and learned Lord may not have been listening to my opening remarks. I hope that he will accept that I said at the outset that our instinct was to leave the matter to the courts. It was as a result of the debate in your Lordships' House and the skilful ingenuity of the noble and learned Lord, Lord Lloyd of Berwick, that our position moved. However, our view remains as the Government said their position remained: that people should be deprived of their ill-gotten gains as a result of their criminal activities—so we may prosecute them for their criminal activities.

Lord Goldsmith: My Lords, if I attributed such peerage to the noble Lord, I am not sure whether to apologise to him or to those who have that dignity. But I do not apologise to him for saying what I have said and will continue to say on the amendment. If the

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amendment were passed, it would not improve the Bill. It would prevent Part 5 from being effective. With your Lordships' leave, I shall explain why.

Perhaps I may deal, first, with one point. Throughout there has been reference to the European Convention on Human Rights and whether or not the process involved would be held to be a civil or criminal process. That is a technical question. I shall not weary your Lordships with the arguments about it now. The simple approach taken by the Government is this. We are not seeking compensation for the state. The noble and learned Lord, Lord Lloyd of Berwick, suggested that I had said that we were seeking compensation for the state. I do not recall ever saying that. What I have said repeatedly is that this is about saying to people who are holding property which they have no right to hold because it is the proceeds of drug trafficking, bank robbery or other serious crime, "You have no right to this property and therefore this property is to be taken away".

By his amendment, the noble and learned Lord, Lord Lloyd of Berwick, accepts that in relation to all people except those who are said themselves to have committed the unlawful conduct.

5.15 p.m.

Lord Lloyd of Berwick: My Lords, I thank the noble and learned Lord for giving way. Yes, but surely in the case of the bank robbery the property belongs to the bank not to the state.


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