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4.15 pm

Viscount Bledisloe: My Lords, does the noble Baroness not recognise that that is precisely what Amendment No. 1 does? Her point may answer the noble and learned Lord’s Amendment No. 36A, but this time around, as opposed to last time, the draftsmen of Amendment No. 1 have been careful to apply it only to proof of the actual crime. I suggest that her point therefore has no relevance.

Baroness Scotland of Asthal: My Lords, this is within the context of civil proceedings. I am repeating the arguments that I made in Committee and today. This is an appropriate way to allow the High Court to determine the standard. It is still a civil standard; the court can look at different elements and decide which standard in the civil palette it is most appropriate to apply. These are preventive, not punitive, orders. This is therefore the most appropriate response.

For the reasons that I have given, the Bill provides an effective way of preventing serious crime, and the harm that it causes, while protecting the rights of individuals. However, that is not to say that we have not listened to noble Lords’ concerns and how they have been expressed. The second limb of the test is a question of judgment. Consequently, there would be no standard of proof as such; it would be a matter of a court making a judgment on how to deal with it.

The noble Lord, Lord Burnett, asked about cost. As a whole, the department has severe pressures on it, of course. In 2006-07, funding for SOCA was around £20 million, less than the provisional figures in the business plan. However, we believe that there are sufficient funds to enable SOCA to discharge its responsibilities with propriety.

We have taken note of the careful scrutiny that the Bill has received from your Lordships’ House, prompting us to bring forward a number of amendments. They will be discussed in their place, but it may assist

25 Apr 2007 : Column 677

noble Lords to know that Clause 5(7)—giving discretion to law enforcement officers to determine some parts of an order—is to be deleted and replaced with a much more tightly drafted provision. It may also assist the House to know that we propose to add a new clause to protect those who are subject to restrictions on the disclosure of information, such as a duty of confidence that would be breached by complying with an order.

I must resist these amendments for the reasons that I have set out, but I hope that the House feels that I have been able to provide some reassurance on the process that will take place in making an order and how that will give effective protection to the rights of the subject of the order.

Baroness Park of Monmouth: My Lords, I apologise to the House for coming late and therefore, perhaps, asking a stupid question, but I must ask it. As we are discussing serious crime, I am not perfectly clear whether the reference to intercept evidence would then lap over into terrorism trials. Do terrorism trials come under serious crime, or are they in a class by themselves? If the latter, I reiterate what I have said many times: we should take the advice of Sir Swinton and others not to use intercept evidence. As I say, however, perhaps this point has been covered. I was not entirely clear whether the implications for terrorism trials lapping over from this are what I fear.

Baroness Scotland of Asthal: My Lords, it may be that because the noble and learned Lord, Lord Lloyd, was speaking the noble Baroness naturally assumed that we were dealing with intercept. We will be dealing with it later. These offences are restricted to serious crimes but do not include terrorism. The terrorism legislation is separate and apart from this. I know that the noble Baroness will, if the noble and learned Lord has his way, have an opportunity to assist the House with her views on intercept in due course.

Lord Dholakia: My Lords, I thank the Minister. I shall look very carefully at the process that she has taken so much trouble to explain. I have not had the opportunity to discuss the amendment with the noble and learned Lord, Lord Lloyd, and ask what he had in mind. My intention at this stage, as was made very clear by my noble friend Lord Thomas of Gresford, is not to scupper Part 1 of the Bill. There seems to be fairly little disagreement between the Minister and us about what should be in the Bill. It might be helpful to look carefully at what the Minister has said today in the light of a number of the amendments put forward and have a discussion with the noble and learned Lord, Lord Lloyd of Berwick. If we are not satisfied, I am sure that we will have a further opportunity at Third Reading to table amendments. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 4 not moved.]

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

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Lord Thomas of Gresford moved Amendment No. 5:

The noble Lord said: My Lords, we discussed these amendments at length in Committee. Your Lordships will recall that the Bill provides for a person to rely on a defence that he was acting reasonably in all the circumstances. The problem is that the Bill places the burden of proving that he acted reasonably on the defendant. In other words, it reverses the ordinary burden of proof that applies in the vast majority of criminal offences. All these amendments would do is put on the prosecuting authority the requirement to establish that a person was acting unreasonably before an order could be made.

The matter that must be established is whether the actions in question were reasonable in the circumstances. That is not a test of whether the actions were reasonable in the defendant’s mind. Because the words “in the circumstances” are used, it is clear that an inquiry is required into whether the actions were objectively reasonable; the defendant’s state of mind is not determinative of that in any way.

As we have found in many areas of the criminal law, objective reasonableness is a vague concept that is difficult to establish. Moreover, we are dealing not with a jury but with applications made to a single High Court judge. The problem is that it is the High Court judge’s view of what is reasonable, rather than what the defendant considered at the time he performed the actions, that is likely to rule. We do not believe that it is fair to impose this burden on the defendant.

I hope that I have the support of the noble Baroness, Lady Anelay, because she made the apposite comment in Committee that it was not possible to see,

We entirely agree with her and bring forward these amendments accordingly. I beg to move.

Baroness Scotland of Asthal: My Lords, the amendments would require the applicant authorities to prove something of which they can only ever have a limited knowledge or ability to adduce evidence. The Bill provides that, when the court is deciding whether a person has acted in a way that facilitated or was likely to facilitate a serious crime, it must ignore any actions that the proposed subject of an order can prove were “reasonable in the circumstances”. An order cannot be imposed on the basis of such reasonable actions.

To go back to my earlier comments on process, and as a result of our earlier discussion on this point, I would like to make clear what happens to the burden here. As I noted in relation to the first limb of the test in Clause 1, it is for the relevant applicant authority to prove that a person has been involved in serious crime. The standard of proof will be the civil standard but, as I hope I have made clear, given the

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seriousness of the conduct alleged, the standard that the court will expect to be reached is likely to be very close to “beyond reasonable doubt”.

It is then for the potential subject of the order to assert in response, and then 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. The standard of proof here will also be the civil standard but—this is a good example of the flexibility to which I have referred previously—because the burden is on the respondent, we would expect the court to apply the lower standard of “on the balance of probabilities”.

That approach strikes an appropriate balance. The respondent will always be in a far better position to know the full circumstances of his actions and whether or not they were reasonable. To expect the applicant authority to prove unreasonableness would, we respectfully suggest, be inappropriate.

To sum up, I emphasise that the Bill already provides for the same end result as the amendments would. Only unreasonable behaviour can form the basis of the court’s decision on whether a person has facilitated or acted in a way likely to facilitate a serious offence. As a result, the amendments are unnecessary and, for the reasons I have set out, inappropriate. I therefore hope that the noble Lord will feel able to withdraw his amendment and resist any temptation to bring these amendments back on another occasion.

Lord Thomas of Gresford: My Lords, I will certainly resist the temptation to bring them back on another occasion; I shall test the opinion of the House.

4.28 pm

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 60; Not-Contents, 129.

Division No. 1


Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Burnett, L.
Clement-Jones, L.
Cotter, L.
Craig of Radley, L.
Dholakia, L.
Dykes, L.
Falkner of Margravine, B.
Garden, L.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Hylton, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mar, C.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Neuberger, B.
Newby, L.
Northover, B.
Ramsbotham, L.
Rees-Mogg, L.
Rennard, L.
Roberts of Llandudno, L. [Teller]
Rodgers of Quarry Bank, L.
Roper, L.
Russell-Johnston, L.

25 Apr 2007 : Column 680

Sandberg, L.
Sandwich, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Stern, B.
Stoddart of Swindon, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Williams of Crosby, B.


Acton, L.
Adonis, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bhattacharyya, L.
Bilston, L.
Bledisloe, V.
Borrie, L.
Boyd of Duncansby, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Carter of Coles, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Oldham, L.
Dear, L.
Denham, L.
Desai, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jones, L.
Judd, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Moser, L.
O'Neill of Clackmannan, L.
Palmer, L.
Park of Monmouth, B.
Paul, L.
Pendry, L.
Pitkeathley, B.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Scotland of Asthal, B.
Selsdon, L.
Sewel, L.
Sheldon, L.
Simon, V.
Snape, L.
Stone of Blackheath, L.
Strabolgi, L.
Swinfen, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.

25 Apr 2007 : Column 681

Whitaker, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.38 pm

[Amendment No. 6 not moved.]

Baroness Anelay of St Johns moved Amendment No. 7:

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 12, 15 and 20. I tabled these amendments in Committee but I have brought them back for further clarification because I am still dissatisfied on this point. I thank those on the Liberal Democrat Benches who give their support. The amendments challenge the Government’s proposition that the definition of serious crime can be changed on what appears to be a day-to-day basis. They would remove the element of judicial discretion imposed by Clauses 2 and 3 in the determination of the definition of serious crime within the context of applications of serious crime prevention orders.

Schedule 1 lists a range of criminal offences to be treated as serious crimes; we will return to which crimes should be listed when we consider a later group of amendments. The schedule provides the parameters that the Government maintain will guide a judge’s considerations as to whether a crime is serious. At our meeting last week, I was grateful to the Minister for going into some detail on how she expected the parameters to operate. But as I said then and put on the record now, I have always understood parameters to be limiting factors within which one works—they serve to define the scope of a function. Since I was not sure of that, despite the years that I have been on this Earth, I actually looked in the dictionary, which seemed to agree with me, so it must be right.

However, the Government will allow judges to go beyond the parameters set by Schedule 1 because the Bill provides that a serious offence includes any that,

Even if an offence is not listed in Schedule 1, a judge can treat it as if it were. Whatever our faith in the ability of our judges to acquit themselves impeccably in the application of this new law—and, as ever, I declare an interest as the wife of a part-time judge, a recorder—it will still lead to a lack of clarity and certainty. That is where my concern lies. What consistency does the Minister expect to be applied to the power in Clause 2? Earlier, she gave us a helpful explanation of the process and procedures that are applied, but she took care to talk about court procedure rules; she may wish to refer to those in more detail again.

I am also aware that not all High Court work is carried out by those who are permanently appointed to the High Court Bench. Some who sit in the Crown Court are ticketed. This is a minor point, but do the

25 Apr 2007 : Column 682

Government expect those who are ticketed to carry out High Court work to be given the same Judicial Studies Board training on this Bill as those who are permanent High Court judges? I beg to move.

Lord Burnett: My Lords, I am anxious not to repeat too much of what has been said so compellingly by the noble Baroness, Lady Anelay. At present the Bill allows the court to decide that any involvement in a particular offence warrants a serious crime prevention order even if that offence has not been specified by Parliament as a serious offence in the list set out in Schedule 1. That will do damage to the principle of legal certainty; it will be impossible for a person to ascertain in advance what the likely legal consequences of their actions will be. There is a lack of clarity and certainty. A prosecutor may believe that a particular offence is serious and that involvement in it warrants a serious crime prevention order, even though the legislation does not specify that the courts should consider that offence to be serious. When that is taken together with the provision that the prosecutor has no legal obligation to prove that the person’s actions were unreasonable, this casts the net far too wide. The result will be that many innocent individuals could have to incur the distress and cost of being brought before the court and required to produce a defence.

In response to these concerns, the Government use the now all too familiar argument that times change, legal flexibility is needed, and the courts can be trusted. Given the impact that a serious crime prevention order could have on a person’s reputation, rights and freedoms, such arguments are not satisfactory. The proposal would deny members of the public the right to know when their behaviour might lead to them being subjected to a serious crime prevention order. Parliament should not abdicate its responsibility for making laws clear and intelligible, and it should not leave people in a legal limbo where they cannot predict the likely legal consequences of their actions.

Lord Waddington: My Lords, I am bound to say that Clause 2(2)(b) causes me concern, and I should like to underline the arguments put by the noble Lord, Lord Burnett. Uncertainty in the law is not usually considered a good thing. It is best that people minded to commit crimes should know what might be the consequences of their actions. It is usually accepted that people should know that if, for example, they commit rape, they might be subject to life imprisonment. Surely people should also know whether certain conducts would result in the making of an order under this Bill. It is as simple as that. I do not see what is to be gained from people not knowing and from the scope of what constitutes serious crime being left up in the air. It is far better that they should know right from the start what might be the consequences of their actions. Therefore, I support this amendment.

4.45 pm

Viscount Bledisloe: My Lords, with Clause 2(2) the Government are having their cake and eating it in a remarkable way. If you commit an offence that is

25 Apr 2007 : Column 683

specified in Schedule 1, however trivial that offence on that occasion, it is none the less a serious offence. However, the Government also say, “If we haven’t specified it but the judge thinks it’s serious, then you can have it, too”. Either one should say that the provisions can apply only to offences that in the particular circumstances are deemed to be serious, or the Government must delete paragraph (b). At the moment, as I say, the Government are having it both ways, and they should not be allowed to do so.

Lord Mayhew of Twysden: My Lords, I agree with what has been said. I do not think that this is any part of the judicial function. It is not as though the terms of Schedule 1 are terse; they extend from page 45 to page 52, setting out in considerable detail the offences that the Government consider ought to be there. By what criterion is the court supposed to judge whether the offence is sufficiently serious to attract these provisions, notwithstanding that it does not fall within the items specified in pages 45 to 52? It is quite wrong to give this sort of responsibility to the judges, and I am sure that they would do their very best to avoid it if it were carried.

The Earl of Onslow: My Lords, I read from the report of the Joint Committee on Human Rights:

It then says:

Further on, the report says that,

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