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I absolutely understand the anxiety of the noble Lord, Lord Lucas. He rightly says that it would be iniquitous if ordinary business people going about their legitimate business with no idea at all that they were being used by serious criminals in an inappropriate and iniquitous way should be dragged into the net. I agree with him in that regard. That is why we have cast the net relatively tightly. The majority of people who are apprised of the fact that their property or facilities are being abused in this way are greatly shocked and appalled that that is happening and do everything in their power to ensure that they are not used in that inappropriate way again. However, in some cases that is not the response. One has to accept that some people are perfectly content to engage trenchantly with criminals and facilitate their acts confident in the knowledge that, if they make sure that it cannot be said with any cogency that they have planned the activity or knew expressly of it, they will keep themselves free of punishment but have the advantage of the ill gotten gains or the increased money that they get for their goods. Those individuals are facilitating serious crime while seeking narrowly to remain within the confines of legitimate activity. We hope to use these orders to differentiate between those two categories of people.

In crafting the criminal offence the noble Lord used words such as “knowing” or “reasonable grounds for suspecting”. The latter phrase is a more interesting construct, but the noble Lord will remember that when we have discussed reasonable suspicion or reasonable grounds for believing in relation to criminal offences, we have had difficulty getting that across.

Lord Goodhart: Those words are taken from the relevant provisions of the Proceeds of Crime Act. I did not want to suggest that one might start to amend that.

Baroness Scotland of Asthal: I appreciate the noble Lord’s wisdom, as we had much debate on those provisions.

In this instance we are trying to deal with the defendant or person who avoids placing themselves in a situation which could be construed as engaging in criminal activity. Such behaviour must be stopped. We believe that, by making a civil order, we do not criminalise these individuals but we stop them from engaging in activity that facilitates crime. Serious criminals who are repeat offenders are very adept at

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taking advantage of such people in order to facilitate their crime. I am sincerely grateful for the noble Lord’s suggestion. We considered carefully whether we could adopt it but came to the conclusion that the prevention orders were the most appropriate response because there was a balance between creating another criminal offence and targeting the behaviour which we wanted to arrest. We believe that these orders do just that. However, we are very conscious of the concern raised by the noble Lord, Lord Lucas. That is why we have crafted the measure in the way that we have.

We have had very full debate on all the clauses. We believe that Clause 1 supports the intelligence-led approach driving the work of the Serious Organised Crime Agency—and, more generally, other law enforcement agencies—which will be specific and tailored to the response to that intelligence.

On Clauses 2 and 3, we have discussed what constitutes involvement in serious crime, and we will shortly discuss in detail the necessity of maintaining the discretion of the court to treat an offence as if it were included in Schedule 1. I look forward to debating that matter with whichever of the noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, is privileged with the burden of discharging that related duty.

We have outlined how Clauses 3 and 4 are affected, so my reiteration of why Part 1 should hold would not benefit from repetition unless noble Lords think that it would be helpful. To the noble Lord, Lord Goodhart, I would say that we will continue to look at this matter as we move through the Bill and maybe we can then persuade him that the second limb is as proportionate as the first; we have been able to persuade him of that. Hope springs eternal, so I will not hold my breath—just in case.

Lord Goodhart: I would recommend the noble Baroness not to hold her breath, and I would certainly not believe that I am being less liberal than the Government are here. In practice, this is what would obviously happen: if the police thought that something suspicious was going on, the first thing that they would do is go round and talk to the people in the business concerned—who, if they were taken aback by that, would say, “I had no idea about this, we will of course stop it at once”. That would be the end of that, and there would be no prosecution or charges, or anything of that kind.

In their proposals, the Government are in fact taking what I would regard as an easy way out, instead of having to come up with proof to the criminal standard that the person facilitating the crime was in fact aware of, or deliberately closed his eyes to, what was happening. It would not be possible simply on some lower standard such as the balance of probabilities to issue an order that could be highly restrictive and could, as the noble Lord, Lord Lucas, suggested, have a serious adverse effect.

The Government ought to require orders to be imposed only on the basis of a criminal conviction,

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which it should be possible to obtain here. That would certainly have a serious deterrent effect on those who knew what they were risking. However, I will take the matter no further.

Clause 1 agreed to.

Clause 2 [Involvement in serious crime: England and Wales orders]:

Lord Thomas of Gresford moved Amendment No. 11:

The noble Lord said: When the Minister says—as she did in the previous debate—that this Government act on intelligence-led information, then we all reach for our guns and invade another country. I do not think that her claim to be more liberal in this Bill stands examination for one minute.

We need to go through the clauses that she has just referred to in some detail. Clause 1(1) says:

Clause 2(1)(a) defines what is meant by “involved in serious crime”. It is if a person,

and then, in Clause 2(1)(b),

or, in Clause 2(1)(c),

Clause 4(2) makes it perfectly clear that, when the court is,

or, in subsection (3), has been conducting himself in such a way as is likely,

first, the burden is on the respondent to prove that what he has done is reasonable in all the circumstances and, secondly, the court must ignore his intentions or any other aspect of his mental state at the time. So he may be completely innocent; he may not appreciate for a moment that he is facilitating another person to commit a crime or is conducting himself in such a way as is likely to do that. He may have no concept of that at all. But unless the respondent can prove that he has acted reasonably, he is liable to a serious crime prevention order.

As we discussed earlier, that order can amount to a serious restriction on his liberty, the use of his assets, his travel or his relationships with other people—even though he does not appreciate for a moment that he is facilitating another person to commit a crime. When all the verbiage is taken away, that is the real structure of this Bill; an innocent person can be subjected to all these restraints unless he can prove that what he was doing was reasonable.

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Amendment No. 11 and all the others in the group, which I will not number, are designed to, at the very least, reverse that burden of proof so that an innocent person cannot be made the subject of an order unless the prosecution—that is, the person bringing him before the court—can show that he has,

In other words, instead of the respondent proving that he has acted reasonably, the prosecution must establish that he has been acting unreasonably.

It is not appropriate to place a burden on a defendant with an innocent mind to prove something in order to avoid the imposition of such a draconian order. The law should punish only unreasonable actions; it should be for the state to bear the burden of establishing that a person’s actions are unreasonable. The force behind the submission that my noble friend Lord Goodhart made in the previous debate is that he requires the prosecution to prove a criminal offence to the criminal standard. That is what is liberal about his proposal and what is illiberal about the Government’s proposals in the Bill. The amendments would require the state to show that the actions of the defendant were “unreasonable in the circumstances”; only then would it be reasonable for the defendant to be subject to a serious crime prevention order because of those actions. I beg to move.

7 pm

Baroness Anelay of St Johns: I can be brief on this amendment, but that does not mean that I have no sympathy with it—quite the reverse. I am grateful to Liberty for its briefing, which focuses on the reverse burden of proof. In moving the amendment, the noble Lord, Lord Thomas of Gresford, referred to the innocence of mind and the lack of intent of the person who is potentially subject to the order. We turn to the matter of intent in the next group of amendments and I shall not encroach on that now.

It is right to ask the Minister why it is appropriate in this case to impose the burden of proof on the defendant or, as the Government would say in this case, the “respondent”, as the civil procedure would be followed. She will know from previous debates on other Bills that we on these Benches wish to avoid the reverse burden of proof wherever possible—it even led me to being in the invidious position of being unable to support my noble friend Lady Miller of Hendon in her efforts to ensure that people on the streets could not wear veils in certain circumstances, simply because she was seeking a reverse burden of proof, which made matters so sensitive.

The noble Lord, Lord Thomas of Gresford, is right to target this issue, because at the moment I do not see any justification for applying the reverse burden of proof in this case.

Baroness Scotland of Asthal: I resist these amendments and I have already explored some of the reasons why. Amendment No. 11 and the other amendments in this grouping would change each reference in the Bill to “facilitation” or “conduct that was likely to facilitate” to include a reference to

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unreasonableness on the part of the proposed subject at the time of the behaviour.

I agree completely with the sentiment that if the proposed subject of the order has acted reasonably—to come back to the point made by the noble Lord, Lord Lucas—but none the less his actions have facilitated serious crime, or he has behaved in a way that was likely to facilitate serious crime, he should not be made subject to an order. There is no dispute between us on that. The Bill already provides for precisely this. Clause 4(2)(a) and 4(3)(a) state that any act that the proposed subject of an order can show was reasonable in the circumstances must be ignored by the court and so cannot form the basis for an order. These amendments would shift the burden of proving reasonableness from the proposed subject of the order to the applicant for the order. We believe that it is appropriate for the burden to fall to the proposed subject, because the particular reasons for his actions are likely to be within his particular knowledge.

Amendments Nos. 41 and 44 are consequential, as they would remove the existing reference to reasonableness in Clause 4. As a result, it would not be appropriate to accept them. However, I remind noble Lords that in civil proceedings it remains the case that he who asserts must prove; the applicant for these orders at the end of the case will have to have demonstrated to the court’s satisfaction, taking into account the two limbs that we explored earlier and the nature of the judgment in McCann, that they have discharged that responsibility. That puts a heavy burden on the applicant to satisfy a court and we think that it must be right that the people who will have the particular knowledge of the reasons why they did or did not do what it was alleged they did or did not do should be the ones to tell the court about it, as opposed to the applicant for the order. That is a reasonable and practicable approach. Therefore, I invite the noble Lord to withdraw his amendment.

Lord Thomas of Gresford: The noble Baroness will recall that earlier this afternoon she told us in no uncertain terms that the burden of disproving in Clause 1(1)(b) was on the respondent and that it was not for the applicant for the order to require proof under Clause 1(1)(b).

Baroness Scotland of Asthal: I hope that nothing I said earlier was inconsistent with what I have just said. I have tried to explain that the applicant will have to prove it; the respondent will have to produce information about the reasonable excuse, as I have described. That is what I was talking about earlier; perhaps it is difficult when one takes some of these issues out of context, but that is when it happens. The assertion is made and the individual then says, “I have a reasonable excuse”, and has to produce information on what that is. However, at the end of the day, the applicant who seeks the order will have to satisfy the court on the balance of probabilities that the elements have been satisfied to justify the order. The noble Lord will be familiar with the process, having been in courts even longer than I have.

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Lord Thomas of Gresford: Far too much longer, I am afraid. With the greatest of respect to the Minister, I say that she has shifted her ground. Earlier today, she was undoubtedly saying that the burden of disproving in Clause 1(1)(b) rested on the respondent. Now she is saying that there is an evidential burden on the respondent to raise the issue and that Clause 1(1)(b) means that it remains for the applicant to disprove the issue, once it has been raised. She knows from the number of years that she has practised in the courts that there is a distinct difference between the evidential burden and the primary burden that the prosecution or, in this case, the applicant always carries. She has shifted her ground and I am pleased to hear it, because she will recall that I suggested earlier that if the burden rested on the respondent to disprove under Clause 1(1)(b), that would be an even greater breach of the European Convention on Human Rights than I had appreciated. However, even though she has shifted her ground, what remains is not at all satisfactory. For the moment I shall withdraw the amendment, but I shall certainly come back to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 12:

The noble Baroness said: In moving the amendment, I shall speak also to the other amendments in the group. Their purpose is to challenge the Government’s definition of involvement in serious crime, as set out in Clause 2. I shall seek to be briefer than I would otherwise have been, given the debates on some of the issues regarding intent that have already taken place, not only in the previous group of amendments, but earlier this afternoon. It would be helpful to have a discrete answer from the Minister on the issue of intent, particularly because of the warning, or advanced notice, that we have had from the noble Lord, Lord Thomas of Gresford, that he feels strongly about the previous group of amendments and may take radical action on Report.

My amendments would restrict the use of serious crime prevention orders to situations in which a person had either committed a serious offence or facilitated the commission of such an offence. Clause 2 differentiates between “involved” in serious crime and “involvement”. The distinction is drawn because the first part of the test in Clause 1(1)(a) is concerned with the person who is “involved” in serious crime in England and Wales or elsewhere, whereas the second part of the test in Clause 1(1)(b), to which the noble Lord, Lord Thomas of Gresford, referred, is concerned with future involvement in serious crime in England and Wales only.

Our amendments ask whether involvement in serious crime requires a degree of intent on the part of the person being made subject to an order. My noble friend Lord Lucas said he was not concerned about whether the person had committed a serious crime and he had assumed from our discussions that those involved indeed had done so. The clauses show us that an order can be imposed upon somebody who has never committed a serious offence and never

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facilitated the commission of a serious offence by somebody else but who is judged somehow to have behaved in such a way that it was likely to make it easier for somebody else to commit a serious offence even if that serious offence were never subsequently committed.

That vagueness in Clause 2 seems objectionable at first sight and it would be useful to have a settled answer from the Minister today on that. There is no requirement that a person must intentionally participate in criminal activity so in theory innocent people could have an order imposed upon them. The Minister has said that will not happen. It is not that it cannot happen necessarily, but it will not happen. We will not catch businesses which are acting in an innocent way; we are looking at those that have as a matter of practice either looked the other way—so there is an intent in that they have ignored what is going on and therefore they are not caring about public safety—or they have already been warned by the law enforcement agencies about their activity: “This is the kind of criminal activity we know is going on. We believe it is linked with the way in which you run your business, for example because you have created false compartments for what you consider to be innocent purposes but they are being misused. We know this is happening. Stop it or change your behaviour and do something else”. If the person ignores all that and carries on, in a sense there is intent.

It might sound very reasonable to say that these people have been given the opportunity to amend their behaviour, therefore why not now do something else to stop them? But is it reasonable to make them subject to an order, given all the issues raised in Clause 4, or is there another way to address their behaviour?

Other noble Lords have felt constrained by not being able to give examples of behaviour because they listened to the briefing last night. I was not there but I still feel constrained because I have seen a note of the briefing so I am going to be very careful which examples I use as well. A high-street computer retailer could sell a computer to a person who uses it to run a human trafficking syndicate. An order could presumably be imposed upon a person who runs a shop selling fishing tackle because that tackle could be used to poach salmon illegally and that is treated as a serious crime in Schedule 1.

The Minister will say that the person has still been behaving in such a way that there is some kind of complicity. The fact that somebody is acting innocently but might find themselves within the remit of an order was recognised by the Home Office in the consultation that preceded the publication of this Bill. The Home Office gave an example of a situation in which a serious crime prevention order might be imposed. They gave the example of a company that makes the concealed compartments to which I have already referred, purportedly to allow drivers to hide their valuables when they are on long journeys so that they can secure them when they leave the cab, but of course these compartments could be used to store drugs. That is on page 10 of the consultation paper. The consultation

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paper points out that making the compartments is not in itself illegal—of course not—but it goes on to say that the order could impose a requirement on the business to notify law enforcement officers of the details of all such compartments and its customers. So despite the reassurances of the noble Baroness that people who have been taking proper measures will not be made subject to an order, an example is given in the consultation paper where somebody who is not complicit, who has not looked the other way and who has not turned down opportunities by the police to amend their behaviour, could still be made subject to an order. That is the direct implication of what the consultation paper says, which is why there has been concern outwith and within this House.

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