Previous Section Back to Table of Contents Lords Hansard Home Page

I too thank the director for talking to us last night about these issues. I shall try to stick within the parameters of Chatham House rules in mentioning what took place. The crimes that we are talking about are very serious, including trafficking in people or in drugs, the illegal selling of guns, or money laundering. They are all committed, for the most part, by cunning, ruthless and innovative criminals. Regrettably, the number of these complex and far-reaching offences is growing. Innumerable offences are being investigated by the Serious Organised Crime Agency which the director, Sir Stephen Lander, explored in detail with us yesterday.

7 Mar 2007 : Column 233

3.45 pm

An interesting development of serious crime is that many criminals do not participate in simply one form of such crime; the same criminal network may be involved in guns, trafficking, money-laundering and criminal drugs activity, as well as having some connection with terror. Those offences are very serious.

The way in which these offences are committed has also become increasingly complex as serious criminals seek to take advantage of what would otherwise be legitimate activity when carried on by third parties. The Government are seeking to prevent that and are absolutely committed to ensuring that the law enforcement tools that we create prevent the damage to people’s lives that serious crime causes. These orders are therefore sought as a reasonable and proportionate response.

I agreed with many, if not all, of the comments that noble Lords made on this issue today and at Second Reading. The orders have to be proportionate, reasonable and accurately targeted, so the first limb of the test provides that the order can only be made where the court is satisfied that its proposed subject has been involved in serious crime. Therefore, I understand why the noble Baroness, Lady Anelay, asks how and why we alighted upon “serious” to best describe it. A simple answer is that the term has already been acknowledged and used in other ways in our legislation.

One main reason that we rejected the term “organised crime” was that the term is widely used, both in this country and abroad, and there are so many different understandings of what it is. Noble Lords will recall that at Second Reading it was made plain that many of the serious offences and crimes are now, regrettably, not purely national; they have become international, and often we have to rely on other agencies in the international community working with us to interdict serious criminals’ activity in our various countries.

The term “serious” has an existing definition in our jurisdiction; in other countries, there are a number of different definitions of “organised crime”. Given the international nature of these crimes, we wanted to avoid any confusion, and we believe that it is appropriate to focus on the seriousness of the crime concerned as opposed to whether two, three, four or more people are engaged in the activity.

The concept of serious crime, as I have said, is already understood and applied in related legislation; for example, the Proceeds of Crime Act. While the definition provided by Clauses 2 and 3, together with Schedule 1, is not identical to that in the Proceeds of Crime Act, since they are for different purposes, its basic similarity will make it familiar to practitioners and the courts. That related jurisprudence will greatly assist us. For these reasons, while I sympathise with the intent behind this amendment, and I hope that I have been able to explain why we have chosen “serious”, I invite the noble Baroness, Lady Anelay, not to press it.

I turn to the issue raised by the noble Duke, the Duke of Montrose. I will return in a moment to those

7 Mar 2007 : Column 234

raised by the noble Lord, Lord Burnett. A number of provisions in the Bill extend to Scotland. These are: Clause 74, on the use of force in executing search warrants, which applies only to Scotland; Clause 75, which relates to the extension of certain powers to Her Majesty’s Revenue and Customs; the breach of a serious crime prevention order being a criminal offence in Scotland, and the sharing of information with a specified anti-fraud organisation.

The power to share, however, does not apply to information that would be within the legislative competence of the Scottish Parliament. The transfer of the powers of the Assets Recovery Agency to SOCA applies throughout the United Kingdom, and the ARA does not currently have powers to take civil recovery investigations and proceedings in Scotland; those powers will remain with Scottish Ministers.

We engaged closely with the Scottish Executive from a very early stage to ensure that their views on the devolved matters affecting Scotland in the Bill were properly accounted for. We have made sure that provisions in the Bill—as currently drafted, I should emphasise—that touch upon the competence of the Scottish Parliament have been the subject of a legislative consent Motion in line with the Sewel convention. The Motion has been considered by the Scottish Parliament’s Justice 2 Committee, which supported it, and it is due to be considered by the Scottish Parliament in plenary vote tomorrow, 8 March—International Women’s Day. We cannot gainsay the view of the Scottish Parliament, but from the indications that we have received from the Minister of Justice, we expect that the Motion will be passed.

The noble Lord, Lord Burnett, asked about resources. All that I can do is assure him that the resources that came from the three agencies into the Serious Organised Crime Agency have been adequate for its needs. Obviously, this matter will be raised from time to time in any budget or in other provisions made in relation to it. If I have further information, I will be happy to write to the noble Lord in due course.

Lord Burnett: Before the Minister sits down, I make a short plea. This level of international crime is highly sophisticated and the people who operate within it have very bright advisers who are busy helping them to escape the law. This agency requires sophisticated, intelligent and knowledgeable people. There is a cadre of such people available—perhaps not aged 20 or 30, but certainly in their 40s. There are people in the City of London who have probably done rather well and might wish to do something for their country. I am aware of a number of such people in their early 40s; they will not want to be paid the Earth. I hope that this agency will have a pretty wide recruitment policy and will want to attract people of a high calibre, who know about international banking, international money flows and so on, because that is one of the keys to catching the criminals we are dealing with.

Baroness Scotland of Asthal: Perhaps I may reinforce what the noble Lord has said—he is absolutely right. The Serious Organised Crime

7 Mar 2007 : Column 235

Agency has drawn unto itself some real expertise. This involves high quality work that needs the most careful consideration, and there is a total commitment from Sir Stephen Lander to recruit people who will be able to intercept serious crime, which flows in the way described by the noble Lord. I assure him that the need for that sort of acumen is absolutely understood by SOCA and the Government. The noble Lord is right to say that some of these criminals are extremely skilled and they have the advantage of a great deal of illicit money with which to acquire even greater skill.

Baroness Carnegy of Lour: I listened with great care to the noble Baroness’s answer to my noble friend the Duke of Montrose and I shall read it to try completely to understand what she said. I understood from the last part of her comments that the Sewel motions will be considered and brought up to date tomorrow—I am not sure whether the link between International Women’s Day and serious crime is appropriate. Can we have an assurance that if, in our discussions and in the course of amending the Bill, we create more situations where Sewel motions are required, she will tell us about them and let us know when they are agreed? It is the duty of us in this House to try and keep things right between the two Parliaments so that when the Bill goes to the House of Commons, they know that there is no time lag.

Baroness Scotland of Asthal: I can indeed give the noble Baroness that assurance. We have kept in the closest possible touch with the Scottish Executive so that we are in alignment with that with which they feel comfortable. I will certainly come back and advise noble Lords of any difficulty and of how we are getting on as we go along. I would not want this House to err.

Baroness Anelay of St Johns: I am grateful to all noble Lords who have contributed to this short debate. In particular, I thank my noble friends for raising the issues of Scotland with the noble Baroness, Lady Scotland. I am sure we will return to these issues. The Minister has given my noble friends the opportunity, as my noble friend Lady Carnegy said, to consider these matters further between now and Report. The Home Office has a record that is not particularly envied outside, except in respect of its attention to detail over Scottish matters in response to issues raised by my noble friends. We have certainly appreciated the fact that the Bill team has brought to meet us those who advise in Scotland. Therefore in the past we have been able to ensure that Bills are appropriate for action not just in England but in Scotland too. I am sure we will keep our eyes on that as this Bill proceeds through this House.

I am grateful to the Minister for addressing the issue of clarification. We will return to the matter of crimes in detail in later amendments. I was particularly interested in the question of which criminals the Government are trying to target. I note that the noble Baroness tried to explain how criminals have developed in different ways. They are not just

7 Mar 2007 : Column 236

more violent and do not just have greater access to funds but appear to be even more careless of the safety and security of anybody else except themselves and are therefore increasingly dangerous to the public, and particularly to those police and security forces who try to protect us.

When the noble Baroness says that the Government have rejected the definition of organised crime because there are so many different understandings of what that is, I have to agree with her. But then the Government seemed to be going out of the frying pan into the fire. In view of the way in which serious crime is treated in the Bill, the Government have raised difficulties about how to construe what serious crime is. They have not been able to resolve those difficulties in Schedule 1, which we will examine later, such that they even leave it to a judge to determine on a day-by-day basis what serious crime may be. We will need to consider that issue very carefully to see whether Part 1 is going to be fit for purpose in the Home Office’s terms.

I am grateful to the noble Baroness. I think she has started to set out the Government’s stall in a way that will assist scrutiny. I am not sure she will be particularly happy with some of the conclusions that we will draw from it, but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dholakia moved Amendment No. 2:

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 4, 87 and 88. The purpose is to tease out what the Government actually have in mind in relation to reasonable doubt. As a result of this amendment, the rules of evidence that apply in criminal proceedings would apply in proceedings relating to serious crime prevention orders.

The amendments would also clarify the Government’s intention that a court should be satisfied beyond reasonable doubt that a person has been involved in serious crime before making an order. The British legal system and post-war human rights framework apply more rigorous fair trial standards to criminal trials than to civil proceedings. This is because a civilised democratic state can only justify using this great force to punish an individual if it is established beyond reasonable doubt that the individual has committed an offence and the individual has been given a fair opportunity to defend himself.

4 pm

At Second Reading, the Minister, the noble Baroness, Lady Scotland, was eager to counter arguments that serious crime prevention orders were a means of evading the higher fair trial guarantees that apply in criminal proceedings. She said that serious crime prevention orders are,

We acknowledged that that could be the case. However, it is not by any means certain that the courts would apply this higher standard of proof in serious crime prevention orders proceedings. These amendments would clarify the point and provide the certainty that is rightly sought by many Members of the Committee.

The fair trial guarantees in criminal proceedings also go further than a high burden of proof—for example, the general rule against reliance on hearsay evidence. The general requirement that a person is convicted only on the basis of statements made in oral evidence in proceedings was designed to ensure that guilt or innocence is not determined on the basis of unreliable rumour and gossip and to ensure that the suspect has a chance to challenge the evidence against him. It continues to perform a vital function, helping us to ensure that the innocent are not swept up with the guilty and maintaining public faith that our justice system does indeed deliver justice. This is clearly as relevant today as it was in the past. The amendment would ensure that these criminal rules of evidence apply to serious crime prevention order proceedings. I beg to move.

Lord Lloyd of Berwick: This seems to me a rather important amendment. Indeed, it goes to the heart of my objection to the Bill—that is, the use of the civil courts to perform what is fundamentally a function that belongs to the criminal courts.

During her reply at the end of the Second Reading debate, I invited the Minister to have another look at the case of McCann, which is reported in 2003 1 Appeal Cases at 787. My memory of that case was that the House of Lords decided that the criminal standard of proof should apply in ASBO cases. I looked at McCann between then and now. The noble and learned Lord, Lord Hope, said at page 825:

This very issue was at stake. The noble and learned Lord, Lord Steyn, said the same at page 812. He said that magistrates,

Nothing could be clearer than that, and nothing could be clearer than the fact that serious crime is a great deal more serious than anti-social behaviour. Therefore, the case for applying the criminal standard in the Bill is overwhelming, and I do not see how the Minister can resist this amendment or the consequential removal of Clause 33(2).

I know that the Minister reads the law reports when she has time, which cannot be all that often. I sometimes wonder whether those responsible for drafting criminal legislation do the same. If she sees

7 Mar 2007 : Column 238

her way to accepting this essential amendment, many of my objections to the Bill, although not all of them by any means, will be removed.

Lord Mayhew of Twysden: I begin my short intervention by saying how sorry I was not to be able to take part in the Second Reading debate on 7 February—a temporary disablement immobilised me. I read with admiration the speeches made on that occasion. I must resist the urge to make a Second Reading speech on this or any other amendment. It is a particularly powerful urge on this amendment because it relates to a provision that was properly described last time as “authoritarian”.

For the reasons touched on by the noble and learned Lord, Lord Lloyd of Berwick, it is an extremely important point indeed. The provision the amendment relates to infringes a fundamental principle of our liberty and therefore of our laws that protect our liberty. That principle is that we may not be subject to a punishment for committing some proscribed conduct unless the fundamental facts to that prosecution are established by reference to the criminal standard of proof—beyond reasonable doubt. That is fundamentally important, and it does not matter with what motive the lawmaker brings forward his legislation. The Minister at Second Reading said: “Oh, but this is not a criminal matter; this is not a punishment; this is a civil order”. I find it very difficult to see how she thought she could sustain that because it is a provision that impinges very importantly and drastically on the liberty of the individual.

It is not sufficient for the Government to say, “You can see what our motive is: it is simply to protect the public from the commission of further crime”. A fairly topical example is that locking somebody up in Belmarsh without a charge can be said to be for the protection of the public. That does not make it any the less a penal intervention in his life and liberty, as the Government have found; nor does it make it any more a civil measure. These orders will apply on proof of proscribed conduct. All of that can be found in Clause 2(1)(a) to (c). Breaching the orders will attract a maximum punishment of five years’ imprisonment. These seem to me to be the hallmarks of a penal provision. If so, they should surely attract the criminal standard of proof. I very much hope that the noble Baroness will reflect further on this and return on Report, or perhaps even later today, to say that she has thought further and better about it.

Lord James of Blackheath: I would like to pursue a point arising from the points made by the noble and learned Lord, Lord Lloyd, and my noble and learned friend. I have grave concerns with the Bill because of its lack of focus and the uncertainty it engenders. There is one very seriously unpredictable consequence—and I think that the noble and learned Lord, Lord Lloyd, gets close to shadowing the point. If one brings in an order against an individual suspected of a serious crime, he might actually welcome it because it will put him on warning that he is being investigated and give him time to get his assets out of the country before he is arrested. There is nothing like enough in the Bill to provide for taking the natural consequences of an

7 Mar 2007 : Column 239

order through to the point of freezing the assets or getting a grip on the individual so that it becomes an offence if he moves any of his assets after an order is given against him.

I appreciate that that is almost a reversal of what my noble and learned friend said, but it is a serious concern. I have had about £0.5 billion worth of fraud carried out against my companies over the years and I have never succeeded in getting a single penny back, whether or not I have had a Mareva injunction—and I usually have. It just does not do in this Bill to have effectively a free warning system to someone that we are coming for him and there is nothing to freeze his assets.

Viscount Bledisloe: I have considerable sympathy with the speeches made in support of the amendment, but I am rather puzzled as to where, if the amendments are passed, that leaves this whole part of the Bill. As I understand it, the purpose of the Bill—whether it is acceptable or not is another question—is to enable someone to be dealt with where it could not be proved in the criminal court that he had committed an offence, so that the order could be made. If the amendment, together with Amendments Nos. 87 and 88, is passed, first, the order can be made only if it is proved beyond reasonable doubt—that is, to a criminal standard—that he has committed an offence and, secondly, you can use only such evidence as would be admissible in a criminal trial. Surely that means that you have enough to get the person convicted, unless you think, “If I go in front of a judge without a jury I will get a conviction, or an order, but if I go in front of a jury, I will not get a conviction”. Well then, let us abolish jury trials for such offences. I gather that we are about to attempt to abolish jury trials for some other offences.

It seems to me that there will be nothing left of the whole of Part 1 if the amendments are passed, with the possible exception that you may be able to get an order if you can only prove that someone must have been involved in a crime, rather than, as you must do in a criminal court, specifying the crime with which you are charging him and of which he is to be convicted. It is surely not satisfactory to say, “It is obvious that you have committed a very serious crime. How on Earth else have you got this vast sum of money and are living where you do? I cannot tell what it is, but you must be guilty of a crime, so I shall make one of these orders”.

I ask the proponents of the amendments to explain what is left of Part 1 if they are passed. They may say, “No, nothing is left of Part 1, and a jolly good thing, too”. I may agree with them, but we should be clear whether we are being asked to strike Part 1 from the Bill or whether the amendments are something much less.

Lord Lyell of Markyate: I shall try not to repeat what has been said, because I very much agree with what the noble and learned Lord, Lord Lloyd, and others have been saying. I want the noble Baroness to tease out and explain to us how the new agency intends to make progress in a way that it could not do through the ordinary criminal courts. I have a great

7 Mar 2007 : Column 240

deal of sympathy with the notion that the ordinary criminal standard of proof and the ordinary criminal procedures should have to be applied.

Next Section Back to Table of Contents Lords Hansard Home Page