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4.45 pm

Lord Thomas of Gresford: I respectfully point out that subsection (3) says that the order under the,

It does not prevent a house-arrest order being made. For example, in the case of a sex offender, the appropriate order might—rightly or wrongly—be to restrict them to their homes, if this legislation goes through. Another way is restricting them from dealing with their assets—their bank accounts and so on. A third way is to prevent them from travelling, whether to the next town or outside this country. Another way would be to impose curfews. The restrictions that can be imposed are absolutely open-ended. The noble Baroness has talked about tailoring; the judge will tailor the order to the particular problem that the defendant poses. This is incredible. The more we look at it, particularly with reverse burdens of proof, the more incredible it appears.

Lord Goodhart: In support of what my noble friend has just said, the Minister should look at Clause 5(6) which says:

If that is not draconian I wonder what is.

Lord Lyell of Markyate: The noble Baroness should understand that we are teasing these things out to produce some sensible legislation, if it can be done in accordance with proper principle. She was kind enough to give the example of a Mr Big who in some way was going to finance lorries with false-bottomed compartments to be used for drug smuggling or people smuggling or whatever. Could she go on and indicate the kind of order that she would anticipate that a court might make in that case or of some other good example?



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Baroness Scotland of Asthal: I have to be really careful because I have about 12 excellent examples in my mind, but I regret to tell the Committee that I understand that all of them are active cases. They would clearly indicate why we need this. I am grappling quickly to see whether I can come up with a different scenario, which would be similar but not identical to those that are under review. Let me try.

A scam could be run in relation to, for example, a school. People are being trafficked to this country, provision is being made for them to attend a school and they get visas on that basis, but no school exists. However, there are premises which have been secured by the Mr Big through which these people can obtain a visa. Third parties may be involved in providing PO box numbers and matters of that sort. You may wish to restrict the individual from obtaining a PO box number to facilitate that sort of fraud. You are looking at how the fraud or the criminal activity is being perpetrated and how you best disable that person from carrying out that fraud. You may therefore require a third party to notify the authorities if that individual were to obtain a PO box. That would not be a general clause but it may be a clause that the court would deem reasonable to apply in the circumstances.

I will now answer the noble Lord, Lord Goodhart. I was trying to say strongly that the noble Lord, Lord Thomas of Gresford, in his usual colourful way was almost saying that these orders will be made to keep people under house arrest unreasonably. I would say that each condition has to be reasonable and proportionate.

I come back to my noble and learned friend Lord Morris of Aberavon. If a condition was unreasonable or oppressive, it would not be consistent with the Human Rights Act. I would be greatly surprised if the court entrusted with this role would be minded to make such an order. The court knows all too well the balance that it would have to strike on reasonableness. It is therefore incredibly important that subsection (1)(b) says that the court,

The person who asserted that there were such reasonable grounds would have to prove it on the balance of probabilities. As I said, it would not be a discernible and identifiable fact; it would be a matter of judgment to which the court would have to come after considering all the facts of the case. Having looked at the information provided, the court would have to make that assessment.

Ultimately, as that is quite a serious assertion, if the court felt that the evidence was of insufficient weight to satisfy the court that it should make an order, an order would not be made. We were therefore very careful when crafting the provision that the lower court would not be dealing with it, as we know how complex and difficult these issues are; it really has to be the High Court, which we believe can be entrusted appropriately and consistently to carry out that balancing exercise. Importantly, to the fore of every piece of legislation is the statement on compatibility

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with convention rights. The court will have to craft these orders so that they are compatible with the convention rights. The orders will have to be proportionate and just and the court will have to be satisfied that it would be proper to make them. These are not executive orders made by the serious organised crime office or the Government but orders sought from the court and given by the court.

Lord James of Blackheath: Is the way in which the Bill will work as explained this afternoon compatible with the protection of offenders legislation? Surely the fact that an order has been given will imply previous offences. It will therefore have just as much effect as announcing that the individual who may be seeking high office in a company has a criminal record, in which case he would not be allowed to serve. We are not allowed to do that. Not even the Stock Exchange Council is allowed to indicate to shareholders the criminal record of someone seeking appointment as chairman. However, someone in that position could be subject to one of these orders. By that time it would be too late to take redress because the offence would already have occurred. There is a real problem here. There was a case 20 years ago in which it emerged that a man had run bordellos when he was younger. He later became a more ambitious businessman and went on to become chairman of a public company from which he took £385 million. It would have been much more useful to be allowed to name his previous offences than to bring an order against him.

Baroness Scotland of Asthal: I am not sure that I entirely understand the concern of the noble Lord, Lord James; but if he is saying that it would have been better to prevent the individual’s action, then I certainly agree. The legislation provides that if an individual had been involved in serious crime, it might be possible to apply to the court—particularly if that serious crime had been perpetrated through the iniquitous use and creation of businesses—for a prevention order concerning that activity.

I may be able to use a somewhat neutered example, if it assists your Lordships. I am trying to be very careful here. I was asked about the haulage company, and we discussed secret compartments. If we could impose a restriction on that haulage company, so that they would have to disclose their customers to the Serious Organised Crime Agency, or further information about those to whom they supplied their vehicles, that could be an order. From that information, the Serious Organised Crime Agency would then be able to follow those individuals, to see whether it would be lawful. These prevention orders can be used in a way that would be helpful to interdict serious crime in the future.

Viscount Bledisloe: In answering my point, the Minister postulated two categories. First, she was concerned that Mr Big, who had been convicted, would go back to his evil ways. The second category is that of the auxiliary who had assisted by selling him dodgy vehicles with false bottoms. I thought the main

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purpose of Part 1 was to deal with Mr Very Big who is behind Mr Big, but against whom it was not possible to adduce admissible evidence in a criminal court to get him convicted. Is that person a target of this Bill and, if so, does that not completely disappear if Amendments Nos. 87 and 88 are passed? You will not be able to get at Mr Big—who I thought was Mr Very Big—which I thought was the Government’s main aim.

Baroness Scotland of Asthal: I agree with the noble Viscount, Lord Bledisloe, that if these amendments were passed, you would not be able to get at Mr Big, but there are a number of Mr Bigs who use a spectrum of smaller agencies in order to perpetrate their large, iniquitous crime. What we must do is twofold. First, we must try to target Mr Big and strip out those steps before one can get to him—those people in the middle. We also have to disable him from taking adventitious advantage of lawful activity which he then uses for his own iniquitous purpose. So you could have a series of people engaged in what on the surface is, individually, lawful activity, but is then used by the serious criminal to his advantage to perpetrate the crime. I gave the example of using PO box numbers and properties with others in a way that makes it very difficult.

Lord Mayhew of Twysden: The Minister has been patience personified and I wonder if I may stretch it a tiny bit longer by asking if she agrees that even Mr Big, assuming that he is properly identified as such, has his rights. I bring her back to the question put to her more than once by the noble and learned Lord, Lord Lloyd of Berwick, arising from the decision of the Judicial Committee of this House in McCann. In answer to his point she said that even the House of Lords Judicial Committee did not stipulate that an ASBO was a criminal order. I suggest that it does not matter what label you tie around his neck; what matters is the effect the order has upon the person who is made subject to it. If, in the case of an ASBO, the effect is held by the courts to be so serious as to warrant the criminal standard of proof, why is that not going to be their view if this amendment is not carried?

Baroness Scotland of Asthal: I must be doing very poorly indeed today. I apologise if I seem to have lacked the clarity that would enable noble Lords to better appreciate what I am trying to convey.

5 pm

The application to be made under Clause 1 comes in two parts. Those two parts may well, in discharging the civil standard, have different approaches adopted in relation to them. In relation to the first limb, I refer to the seriousness of having to satisfy the court that the,

Following McCann, it is reasonable to assume that the court is likely to adopt a standard similar, if not identical, to that of beyond reasonable doubt. In relation to the second limb—the court must be

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satisfied about both limbs—it is likely that the court would have to be satisfied on the balance of probabilities that it had,

I do not say that this preventive order relates to a criminal offence or a criminal act in the way that the noble and learned Lord is concerned about. We say that it is a civil order. Within the civil order there is a sliding scale. The court will look at each element and determine where on that sliding scale the burden of proof should lie. Overall, we say that the burden, on the balance of probabilities, because it is a civil preventive order, is the right standard, confident that McCann will certainly bind the court when it looks at these issues. That is why we do not think that it is important or necessary to include “beyond reasonable doubt” in the Bill.

Lord Lucas: The noble Baroness gave the example of vehicles with false bottoms. The proposal to report orders to SOCA may not sound too serious but would result in the destruction of a person’s business. Given the choice of buying from someone and having your order reported to the police, or buying from someone else and having no such reporting, all their customers will naturally choose to move to an alternative supplier so that they do not have SOCA crawling all over them to see whether they are involved in people trafficking. Given a reasonable level of commercial sense in reporting, which seems to me commonplace, I reckon that it would take about three months for the company to die in those circumstances. The same would be true of many of the examples discussed last night.

As I understand it, facilitating can be entirely innocent. If you are supplying a substance that is used if not widely at least alternatively and which happens to have been used in a particular case for cutting drugs, and you are subject to the order whereby you have to tell the police every time you supply a customer with these materials, your legitimate business will disappear and you will be left entirely reliant on what you may not have known or understood at the time to be a criminal transaction. Effectively, these orders will destroy ordinary, legitimate businesses although they seem in themselves entirely reasonable.

I say to the noble Lord, Lord Thomas of Gresford, that while courts may initially be prepared to act like a couple of kings chasing each other round a chessboard, always trying to occupy the last square that the criminal was involved in, very soon they will find that it is reasonable to impose orders with some teeth that have some hope of anticipating the criminal’s next move. They are very likely to take the form of restricting someone’s movements or the time that they spend out of their house, which is a very easy, convenient and monitorable system. There is absolutely nothing in the Bill to prevent orders evolving in that direction.

Baroness Scotland of Asthal: I shall first deal with the points made by the noble Lord, Lord Lucas. As regards destroying businesses, we are grateful that

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SOCA finds that when it addresses legitimate businesses and apprises them of the difficulty that they may have inadvertently been engaged in, they are in the main wholly compliant and there is no difficulty with that at all. The difficulty arises—

Lord Lucas: Yes, but that is a private transaction between the police and the company, and I would expect a great degree of compliance. If, however, the information were published in an order that everybody could see—the individual would be branded as somebody who has been associating with criminals, as it were—it would be very different.

Baroness Scotland of Asthal: I can see the fear, but I am advised that it works thus; so far, there have only been difficulties where the business has failed to and/or refused to comply reasonably. For instance, there are those who say, “I am not my brother’s keeper: if I provide this service to an individual and they use it for nefarious practices—whether that is drug smuggling, people trafficking or anything else unbeknown to me—that is not my business”. It might also be claimed, “If I receive a great deal of money for converting a car, which is used for nefarious practices, that is not my business, because I am entitled to get as much money as I can for services that I supply”.

Where there is a refusal to take on board the consequence of that activity, it would be reasonable to apply for an order to ensure that that individual at least apprises the authorities of who the customers are. In some cases with which we are dealing, the business will say, “I don’t know the name of the person or receive any money in written form. I receive it in cash, and there is no way at all that I can help”. In those circumstances, the Serious Organised Crime Agency certainly thinks that impropriety needs to be addressed, if we are to curtail criminal activity.

It has been claimed that the conditions are oppressive. Noble Lords will know—we have been debating them a great deal regarding actions taken under SIAC—that if conditions are applied that amount to house arrest, a derogation from the Human Rights Act would be needed. We have no derogating orders in this country; therefore any condition attached by the court would have to be HRA-compliant; otherwise, I am sure, it would be struck down.

I can certainly write to noble Lords to give further and other such cases that we are dealing with and that may assist. Indeed, Sir Stephen Lander was able to explore many of those with us last night, but, as I have explained, it would not be proper for me to further explore them in the open forum of this Committee.

Lord Burnett: Without labouring the Article 6 point too much, is the thrust of the Minister’s case that some provisions in the Bill potentially contravene that article but that the Government seek that a High Court judge will apply the Bill so that it is compliant?

Baroness Scotland of Asthal: No, they are not in contravention because it is reasonable to suppose that the regime we have put in place would be operated by

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the High Court in a way that would comply with the Human Rights Act. I am therefore confident that these provisions, which are similar to how provisions were made for football banning orders or anti-social behaviour orders, are HRA-compliant.

Lord Dholakia: I thank the Minister for her explanation, but she will have noted the concern of almost all the noble Lords who spoke. Our aim was to tease out as much information as we could from the Minister; I hope that she will reflect on today’s debate, which has taken just over an hour. We on this side are uncomfortable with what we have heard so far, but there will be an opportunity to come back to this matter on Report. I hope that that will be a more challenging time for the Minister. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dholakia moved Amendment No. 3:

(c) it is satisfied that it is not possible to prosecute the person for a criminal offence.”

The noble Lord said: The amendment has been grouped with Amendments Nos. 5 and 9 and would restrict the ability to make serious crime prevention orders in situations where the High Court was satisfied that it would not be possible to prosecute a person for a criminal offence. It would require criminal investigations to be continued following the making of an order, with a view to a criminal prosecution.

We suspect that serious crime prevention orders would become an unacceptable legal short cut and make it possible to punish individuals without the administrative inconvenience of fair trials and due criminal process. The government response is that that is not the aim, and they argue that these orders are needed to deal with cases where a criminal prosecution would not be possible, and that the orders are therefore the only options.

In the debate of 7 February the Minister said:

That assurance is not a sufficient guarantee. Nothing in the Bill would prevent a serious crime prevention order being used as an alternative in cases where a criminal prosecution would be entirely possible but where it was thought either to be too troublesome due to the fair-trial hurdles that would need to be crossed or not to provide a sufficiently broad range of remedies.

The predecessors of these orders, ASBOs and control orders, which the noble and learned Lord, Lord Lloyd, mentioned, demonstrate the need for express safeguards to be included in the Bill. It has been common for ASBOs to be used as an easier alternative to a criminal prosecution, because it is more straightforward to collect and rely on hearsay evidence. Parliament was similarly concerned that control orders would be used as an easy alternative to criminal prosecutions for those involved in terrorism, and insisted that a provision

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be included in the Prevention of Terrorism Act 2005 that required the possibility of a criminal prosecution to be considered before a control order was made and for a criminal investigation to be continued following the making of the order.

Notwithstanding that provision, it appears that incomplete consideration has been given to the possibility of prosecutions prior to the making of control orders. That was one of the reasons why the High Court decided on 16 February that the Home Secretary had exceeded his powers under the PTA 2005 and, therefore, quashed the control order. There is every reason to fear that the ability to deal with a serious crime by using an order will remove the incentive to pursue a criminal prosecution.

Our amendment would ensure that that was not the effect of serious crime prevention orders and would thereby safeguard the Government’s intention, expressed by the noble Baroness, Lady Scotland. The amendment would require the High Court to be satisfied that a person could not be prosecuted before making a serious crime prevention order and that all appropriate lines of criminal investigation were pursued diligently following the making of an order. I beg to move.

Viscount Bledisloe: Does the noble Lord accept that the amendment is totally incompatible with those that we have just debated? The judge can make an order only if he has been satisfied beyond reasonable doubt on evidence admissible in a criminal trial that the man in question has been guilty of the criminal offence. If he is satisfied, he cannot be satisfied that it is not possible to prosecute the person unless the individual is outside the jurisdiction. I do not think an order of this kind can be made against somebody not within the jurisdiction, but the two cannot stand together. A judge cannot say that he is satisfied beyond—

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