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If we move away from that, we shall find two particular problems. First, defendants and prosecutors will not really know where they are. Secondly, there is a serious danger that the procedures will fall foul of the European convention and we shall find cases being taken to Strasbourg. We know—I will not say that this is unfortunate, because I think that it is right—that Strasbourg is very clear that, when penalties are imposed that are in effect criminal, they are treated as criminal and criminal standards are required throughout the case.
Given the Government’s explanation of the matter so far and the likelihood, following McCann and other authorities, that the courts will effectively impose criminal standards in a large part of this, there might be a very great deal to be said in favour of, as the amendment suggests, writing those criminal standards into the Bill. My question, which is, in a way, the antithesis of the question of the noble Viscount, Lord Bledisloe, is: how does the noble Baroness see this working? Can she flesh out briefly with a few practical examples how the procedures will assist?
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Lord Morris of Aberavon: I sympathise with the Government on their aim. It is important that, as is stated in the Bill, the public should be protected. But this situation would in practice involve the equivalent of a criminal penalty and, given what we have heard from the noble and learned Lord, Lord Lyell, regarding the view taken in Strasbourg, I want further assurance about the Minister’s endorsement on the face of the document that the Bill’s provisions are compatible with convention rights. On further reflection, and having heard the points that have been made, does she maintain that this provision is human rights-proof?
My view is that there may be cases—I presume that this is why the Government are bringing forward the Bill in this connection—where it would be difficult, for a whole host of reasons that I will not go into, to adduce the kind of evidence that would be heard in a criminal court. I would like to hear the Minister’s argumentation on whether, in a situation that inevitably is in the same ballpark as a criminal penalty by the restrictions set out in subsection (3), that is in reality nothing more or less than a criminal penalty.
Lord Thomas of Gresford: We would not have to go to Strasbourg. We on these Benches opposed ASBOs when they were introduced on the basis that to use a civil process in the way that the Government proposed would inevitably be a breach of convention rights. That was the decision of the House of Lords in McCann; the Lords decided that, unless there was read into the legislation a criminal standard of proof—essentially, we are dealing with criminal behaviour and criminal penalties—the Act as it was passed in relation to ASBOs could not stand.
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Here we have gone a step further. We are not dealing with anti-social behaviour; we are dealing with serious crime. The penalties to be imposed by the orders are house arrest, the freezing of assets—the answer to the noble Lord who spoke from the Conservative Benches a moment ago is that an order could contain such a provision—and a restriction on liberty, which is completely unacceptable unless there is a fair trial under Article 6.1.
The essential point is that there be in place the sort of safeguards that exist in a criminal trial. Those safeguards are, first, clarity: a person should know what he is charged with. The second safeguard is that what he is charged with has to be proved by the prosecution beyond reasonable doubt; the Minister has conceded that the orders can be made only if the activity complained of was proved beyond reasonable doubt. Thirdly, it is necessary in a criminal trial to produce evidence on a proper basis—not rumour, tittle-tattle or hearsay, but direct evidence. Fourthly, if the prosecuting side fails to reveal its hand and to disclose anything that might impinge on what it is doing, that is an abuse of process. All those safeguards are in place under the concept of a fair trial in Article 6.1.
The Government cannot hide by saying that this is a civil process. It is not a civil process. It imposes serious restrictions on liberty and that is the basis of the amendments that we have tabled. The answer to the question of the noble Viscount, Lord Bledisloe, of what is left of Part 1 if the amendments are passed, is nothing—and good riddance.
Lord Henley: We have some sympathy for the amendments tabled by the noble Lord, Lord Dholakia, but at the same time we also have sympathy for the arguments put forward by the noble Viscount, Lord Bledisloe. If that sounds confusing, I have to say that the Government’s own position is somewhat muddled. The noble Baroness will recall that the noble Lord, Lord Thomas, intervened in her speech at Second Reading to ask whether an undertaking could be given to add the words “beyond reasonable doubt” to the Bill. That followed her statement that in effect it was not necessary because,
- “where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard. Recent case law has stated clearly that in proceedings like these the court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of ‘beyond reasonable doubt’”.—[Official Report, 7/2/07; col. 729.]
If that is the case, I fail to see why the noble Baroness resists actually having the words “beyond reasonable doubt” on the statute book.
When considering the first amendment, my noble friend made it clear that we are sceptical about the Government’s proposals and that at this stage all our amendments are designed to probe exactly what they intend and whether what they are doing is really a step too far in dealing with serious crime. For the same reason, we have some sympathy for this amendment in order to tease out exactly what the Government intend—whether they really believe that
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Baroness Scotland of Asthal: It is clear from the number of noble Lords and noble and learned Lords who have spoken that it might be advantageous if I contextualise where we are and how these orders will work. The orders are preventive measures, and perhaps I may explain why. Regrettably, and particularly with serious crime, serious criminals are generally those who will commit crimes again and again. I will check this, but the figures show that around 85 per cent of very serious criminals are recidivists. When they come out of prison, they go back to committing more crimes, in a way that is complex and difficult. The task is not only simply to catch and convict them of a particular crime, but also to prevent them committing further crimes, to interdict that criminal behaviour and to look at the methodology that they adopt and target a preventive order that makes it more difficult for them to perpetrate those or similar crimes again.
Lord Thomas of Gresford: Does this mean that when a person is released from prison, he is to be put under house arrest because he has previously been convicted of a serious crime? When did that principle emerge in the whole history of English justice?
Baroness Scotland of Asthal: It absolutely does not mean that that would be the case. Let us take as an example a people trafficker. The individual may spend a considerable amount of time travelling to China and another country in Africa, from which they have trafficked individuals. It may be appropriate, when looking at that particular individual, to set a condition preventing them for a certain period from travelling to those two countries after they leave prison. Why should we do that? Because we know from their modus operandi that those are the areas in which they operate. The condition will act as a “preventer”, potentially, of serious activity.
It is important to look at how this clause is set out. The first thing to say is that these orders can be made only by the High Court in England and Wales, and there are appropriate provisions for courts of a similar nature in Northern Ireland. All noble Lords who have had the privilege of appearing before the High Court—the noble and learned Lords, Lord Lloyd of Berwick, Lord Mayhew and Lord Lyell, the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Thomas of Gresford—will, I hope, affirm that the High Court is well seized of the application of the law in civil cases and is attuned to the different balances that there need to be with regard to different assertions made about proof in a civil standard. The High Court judges of this country have no difficulty in differentiating between those issues that are serious and therefore need the balance of probability heavily weighted before the judges are satisfied, and those that do not. That is a premise on which I hope we can all agree.
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These orders are not simply to say whether an individual is guilty or not; they are preventive in nature. To take up the point made by the noble and learned Lord, Lord Lyell, the Strasbourg jurisprudence makes it clear that a measure will be held as criminal only if it is punitive. These measures are not punitive, but preventive; they are not an alternative to punishment through criminal law, but another string to the bow of the agency that is seeking to interdict crime. The punitive element comes into play only if there is a breach.
We need to be frank. If one has an injunction made by a civil court not to behave in a specific way and one breaches that injunction, there is a punitive element there, too—either contempt or some other provision to enforce the order made by the court. It has never been suggested in those circumstances that those are criminal in nature, albeit that they are punitive to enforce an order.
Lord Lyell of Markyate: I thank the Minister, since she was focusing specifically on my point. Does she not agree that the court at Strasbourg will look at the substance of the matter and not the alleged form of it? If someone is under long-term house arrest, with a very serious loss of liberty in consequence, will the court not describe that as punitive?
Baroness Scotland of Asthal: I said in answer to the noble Lord, Lord Thomas, that it is not proposed that these issues should relate to house arrest. We are looking at a specific methodology adopted by a criminal, and we are asking the High Court to do two things. Under Clause 1(1)(a), to make an order the court has to be,
- “satisfied that a person has been involved in serious crime (whether in England and Wales or elsewhere)”,
- “reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales”.
That enables the court to target the condition to address the mischief complained of. One of the difficulties with which the court will be faced is that, because the nature of the criminal activity that any particular individual may be involved in will differ, the tool that you will need to use with regard to criminal A may be significantly different from the tool you will need for criminal B, who may be engaged in a totally different type of crime. We must make sure that those provisions are fit for purpose.
Lord Lloyd of Berwick: I am sure that the Minister will come on to dealing with the basic problem here. ASBOs are preventive, as I am sure she will agree, in exactly the same way as these orders are intended to be. However, the House of Lords has unanimously decided that the standard of proof in those cases is the same as the criminal one. How can she get around that?
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Baroness Scotland of Asthal: I do not propose to, but I should like to expand on why the civil standard is the most appropriate. The judgment in the McCann
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Viscount Bledisloe: I confess to being confused by the noble Baroness’s remarks. At Second Reading, I thought that this part of the Bill was put forward on the basis that there were people whom you could not get convictions against because you could not get the evidence together, so you would have these orders against them. Now the noble Baroness has said that she is concerned about people who have been convicted but have come out of prison and may resume their behaviour. If that is the case, surely the sentencing court can be given the power to impose orders of this kind as a condition of release. Are we dealing with people who have been convicted and may go back to crime or with people known to have committed crime but who cannot be brought before the criminal courts successfully for lack of admissible evidence?
Baroness Scotland of Asthal: In one sense, we are dealing with both groups. We are dealing with groups of criminals who have previously been convicted of offences and whom we wish to prevent adopting a similar modus operandi and committing future crimes. We are also dealing with individuals—quite often third-party—used by those criminals to undertake legitimate activity for an iniquitous purpose. For example, there may be an arrangement whereby a criminal buys vehicles with false bottoms in which to transport people and/or drugs. The third party involved never sees the criminal or has an explicit conversation with that individual, but it is clear that the use to which the vehicles are being put, such as people-trafficking or drugs, is iniquitous. At present, there is a difficulty because such third parties will seek to rely on the fact that the activity is legal, commercial and cannot be interfered with. The orders would enable us to prevent that continuance in order to prevent serious crime being facilitated. That is why it is important.
I see the noble Lord, Lord Goodhart, getting to his feet but before he does I should like to come to the point made by the noble Lord, Lord Dholakia. I have tried for a number of minutes to get to the noble Lord’s question and to that of the noble and learned Lord, Lord Lloyd. If the Committee will indulge me, it might be easier if I deal with those before the noble Lord, Lord Goodhart, gets to his feet to interrogate on a further point.
The first limb of the test for obtaining an order is whether the person has been involved in serious crime. The burden of proof is on the relevant applicant authority. The standard of proof will be the civil standard but, given the seriousness of the conduct alleged, following McCann, the standard the court will expect to be reached is likely to be close to “beyond reasonable doubt”.
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The second limb of the test for obtaining an order—this is a two-limbed clause—is whether the order will protect the public by preventing, restricting or disrupting the person’s involvement in serious crime. It is not a question of fact but one of judgment for the court. As a consequence, there is no burden of proof or any corresponding standard of proof. It is for the potential subject of the order—the respondent—to prove. The burden is on the respondent to prove that his actions were reasonable and should not form part of the court's decision on whether his actions facilitated or were likely to facilitate a serious offence, and the standard of proof will be the civil one. As the burden is on the respondent, we would expect the court to apply the standard of “on the balance of probabilities”.
There are parallels here with a criminal prosecution. In a criminal prosecution the burden of proving the offence is on the prosecution and the standard is “beyond reasonable doubt”. If the defendant raises a defence, it will usually be for him to prove the defence but the standard of proof would be lower than for the prosecution; namely, “on the balance of probabilities”. However, although in the context of burden and standard of proof there are parallels with a criminal prosecution, there are still important differences that mean that there are advantages to obtaining a civil order over a criminal prosecution. The two limbs would act together. We therefore say that this is a civil order; it is a preventive order. You still need McCann and you still need to understand how the two fit together—but within the civil not the criminal framework.
Lord Goodhart: To return to the distinction that emerged in the discussion between the noble Viscount, Lord Bledisloe, and the Minister, are there not two quite different situations here? One is the situation where a serious crime prevention order is sought following a conviction, which will have been based on the criminal standard of proof, as that is all that is needed. That seems relatively straightforward and does not seem to raise any problems under Article 6 of the European convention. But you are in a different situation where there is a third party who has not been convicted of an offence and may not have committed one at all. In those circumstances, one needs to be a lot more careful about how the application for an order is handled. Unfortunately, it seems that the Bill does not recognise sufficiently the difference between those two situations.
Baroness Scotland of Asthal: I understand the concern raised by the noble Lord, Lord Goodhart; this causes us to look at the matter quite keenly. We think that the way in which we have phrased the provision meets those difficulties. The noble Lord will know that there are situations where the criminal standard, as he rightly says, will have been reached because the individual has been convicted, and we can deal with that. I am grateful to him for accepting the propriety of that position.
Anti-social behaviour orders were mentioned by many noble Lords, including the noble Lord, Lord Thomas of Gresford; but the way in which the breach of the football banning orders was dealt with is an interesting example of the effectiveness of taking
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These orders will take two forms. Because of the limbs to which I referred, the first being the need to establish whether a serious crime has been committed and the second being on a matter of judgment, the civil standard has to apply. It is a civil preventive order. The civil courts are very used to balancing those two. The Serious Organised Crime Agency has made it absolutely clear that it will want to apply for those orders for those who have been engaged in serious criminal activity. It was suggested that there may have been 25 or 30 such orders. The agency has a spectrum of serious organised crime with which to deal, which means that it has to concentrate its efforts on the most serious criminals to try to disrupt the activity in a way that will reduce crime in our country. It has an enormous job on its hands and it believes that the orders will greatly assist the agency.
I hear what the noble Lord, Lord Thomas of Gresford, says, that it would be good to get rid of the whole of Part 1. That is not the view of those who are burdened, on our behalf, with trying to interdict the serious criminal activity being carried on in our country.
Lord Morris of Aberavon: Can the Minister deal with the question that I put? It seems to me that such prohibitions, restrictions or requirements are very wide, almost open-ended and as near to a penalty as could be. Having heard the arguments on all sides, can she reassure the Committee that this particular proposal is human-rights proof according to the convention?
Baroness Scotland of Asthal: I believe it is. We have looked at this issue very carefully. I have not hesitated to agree with the concerns expressed by a number of noble Lords, both at Second Reading and today, that these orders have to be proportionate; they have to be clearly targeted and used with care and attention. For that reason, the High Court of England and Wales will be entrusted with this task. I know that noble Lords will have felt a great deal of confidence, as I have, in the rigour and vigour with which our courts have scrutinised these provisions. It will be for the court to determine whether either ground A or ground B has been made out. It will be for the Serious Organised Crime Agency, which asserts that that is necessary, to prove to the satisfaction of a High Court judge that the same is indeed necessary.
I believe that that will be quite a high benchmark for the agency to reach. If it reaches it, the court will have had to be satisfied that there are,
- “reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales”.
If the applicant fails to satisfy the court to the appropriate standard, an order cannot be made.
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Lord Thomas of Gresford: I had not realised that there was a reverse burden of proof in subsection (1)(b). The Bill certainly does not make it clear that the onus is on the defendant to prove that there are no reasonable grounds to believe that the order will protect the public. I had read it on the assumption that it would be for the prosecution, or the authority that brought the matter before the High Court, to establish that there were reasonable grounds. Now, we hear something completely different and even more in breach of the European convention. We are not talking about stopping people going to football matches; we are talking about confining people to their homes, preventing them from using their assets—
Baroness Scotland of Asthal: We are not contemplating—it has been said now two or three times—confining people to their homes. It would be quite wrong to predicate this debate on that premise.
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