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The Select Committee’s report makes it clear that we should consider whether the Government’s proposals in Part 1 would undermine that system of law and justice. The best weapon against serious criminals is, of course, to track them down, charge them, prosecute them and hope to secure a conviction to put them behind bars for a very long time for the
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In Committee, I tabled a large number of probing amendments to give noble Lords the opportunity to examine the whole range of the impact of the provisions in Part 1, and particularly to examine the principle and practice that should underpin the imposition by our courts of these new serious crime prevention orders. My objective was to give noble Lords the fullest opportunity in Committee to determine whether the new civil injunctive orders were a step too far or whether there might be grounds on which they should be tolerated. The Minister gave careful and detailed explanations in her responses in Committee. We did not agree with everything that she said; we did not believe that all of her responses were satisfactory; but we certainly recognise that amendments tabled by the Government today make improvements to the Bill that may be sufficient for us to accept that Part 1 should stand part of the Bill, although we remain seriously sceptical about the effectiveness and the range of the Government’s proposals.
I am very grateful to the Minister for meeting my noble friend Lord Henley and me last week to discuss the proposals in the Bill and for her subsequent telephone conversations and meetings this week regarding potential government amendments, some of which we and other noble Lords saw only at the last minute. They do make improvements, and the Minister was able to develop further the Government’s position regarding the justification for the proposals in Part 1. She further explained the protections that she believed would be in place. Those meetings and explanations have been helpful and I invite the Minister today to put on record clearly the effect of the reassurances that she gave.
We would certainly prefer the criminal procedure to be adopted for applications for serious crime prevention orders if it is at all possible—we are at one with the noble Lord, Lord Dholakia, on that. However, we recognise that that would scupper the very attempt that the Government have made in introducing serious crime prevention orders. The Government have made it clear in the past that they expect criminal prosecutions to proceed wherever possible, that applications for serious crime prevention orders should be used as a last resort and that it is anticipated that the number of such applications should be low—perhaps about 30 a year. We hope that that would mean that it is not a case of a lack of resources but that they are being properly targeted. I hope that the Minister will take the opportunity to be robust on all those matters today.
We have considered our position extremely carefully between Committee and Report as to whether we should join the noble Lord, Lord Dholakia, in attempting to remove Part 1 from the Bill. Let us be in no doubt that the result of these amendments would be to render the effect of Part 1 null and void. That is what we are about when we consider these apparently innocuous and reasonable objections of the noble Lord, Lord Dholakia.
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We have concluded that we shall not support these amendments. We wish to give the Government the opportunity to prove that serious crime prevention orders can operate without undermining our system of justice and can trammel the activities of those around the world who profit from crime in such an evil way.
I realise all too well that the resources of our police and law enforcement agencies have been extremely stretched over the years as they have struggled to bring these people to justice. We have seen a recent example where it has taken about 20 years to nail somebody, and not necessarily on the offences with which the police would like to have seen that person charged if they had had the evidence to bring before a criminal court. None of us underestimates how important it is for the security of this country to bring such people to justice. With such examples in mind, on this occasion we are prepared to go that extra mile—for us it is a very hard extra mile—and not support these amendments.
Lord Thomas of Gresford: My Lords, I disagree with the noble Baroness, Lady Anelay, that these amendments would nullify Part 1. These Benches would have no objection to an order of this type being introduced in circumstances where a person had been convicted of a criminal offence of a like nature to that which the order is designed to prevent in future, but that is not the purpose of the SCPO that is proposed here.
The Government had an idea some years ago that it would be rather a good thing to avoid the protections and guarantees of a fair trial contained in Article 6 of the European convention, which they themselves made part of the law of this country. In order to do that, they say that these are to be civil orders requiring a civil standard of proof, and permitting the introduction of hearsay evidence in a way which would violate Article 6.1 protections in relation to a fair trial of a criminal offence. It is true that, when it considered the effect of an ASBO, the House of Lords determined that the court could not make an order of that nature unless the criminal standard of proof was applied. If orders are made under Part 1, I have not the slightest doubt that the first thing that will happen is that an application will be made to the court and, if necessary to the Court of Appeal and beyond, to make it absolutely clear that the criminal standard of proof of involvement in a serious crime is a necessary precondition of making an order of this sort.
We seek to avoid the necessity of future litigation of this type, which can have only one result, and to put in the Bill the requirement that the involvement in serious crime must be proved beyond reasonable doubt. If it is not in the Bill, the courts will very quickly seek to put it there. So, far from removing Part 1, or its effect, as the noble Baroness, Lady Anelay, suggested, we would be in exactly the same situation in any event. Indeed, I imagine that is the precise answer that the noble Baroness, Lady Scotland, will give us—that it is unnecessary to have this amendment because of the McCann decision and that when these orders are considered by the highest
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The Earl of Onslow: My Lords, I deeply apologise for arriving late. I am a member of the Joint Committee on Human Rights. We have looked at this matter and have decided, as has the House of Lords Constitution Committee, that it is against the European Convention on Human Rights. If people sign conventions, saying that they will stick to them, they should not then go around passing Acts of Parliament to avoid doing so. I shall vote with the Liberals on this occasion and I regret to say that I am deeply upset that my own party is not taking the libertarian stance that it should—history dictates that it should do so. However, I am not in the slightest bit surprised that the party opposite is bringing in yet more illiberal, unconstitutional measures that affect the liberty of the subject.
We all know that heavy men in Marbella with gold chains around their necks and who drive Bob Marley wagons are not the most popular people on earth. We may think that they are guilty of something, but we have to prove it. Their rights need protection in the same way as anyone else’s rights. This Bill does not do that. The noble Baroness opposite obviously thinks that that is funny. I do not. It is disgraceful that we should be considering yet another piece of legislation that takes away the rights of the British subject and I shall, therefore, with relish, vote with the Liberals.
Lord Burnett: My Lords, first, I thank the Minister for organising the meeting last Monday that was attended by me and a number of other colleagues in the House. It was an extremely useful opportunity to listen to what the chairman and chief executive of the Serious Organised Crime Agency had to say. I recognise also that in the later stages of the Bill the Government have moved considerably towards meeting the serious objections voiced in Committee. I talked then about the resources for that organisation. It is in its early inchoate stages and I would welcome hearing from the Minister exactly what resources the Government propose.
On the amendment standing in my name and in the names of my noble friends Lord Dholakia and Lord Thomas, I look forward to hearing a compelling response from the Minister to the cogent points that have been made by my noble friend Lord Dholakia, the noble and learned Lord, Lord Lloyd, and my noble friend Lord Thomas of Gresford. They are difficult points and, if the Bill is to go through—it looks like it will go through without our amendments, given what the noble Baroness, Lady Anelay, has said—let us hope that it is not a busted flush. Perhaps we should hope that it will be a busted flush, but let us hear what the Minister has to say.
Baroness Carnegy of Lour: My Lords, my noble friend Lord Onslow castigated my noble friend on the Front Bench for the position she has taken on these amendments. It is a finely balanced, difficult issue.
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It remains to be seen whether this measure will work, whether there will be miscarriages of justice, and whether we shall know that there have been miscarriages of justice. I do not know, but I understand the position of my noble friend on the Front Bench. I am glad that my party, which I support, is prepared to give this a go and to see whether we can stop some of these threats. I will support my noble friend with a fairly heavy heart, because we are eroding the protections that we have under the law, but there are times when we are forced to take measures such as this. On this occasion, I will go along with what my party wants.
4 pm
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Anelay, for the way she expressed her cautious support for these amendments. I endorse what she said about them. I concur with her about the situation in which we find ourselves. The noble Baroness, Lady Carnegy of Lour, is right to emphasise the need to protect the individual and society from the pernicious impact of serious and organised crime. I hope that, from the way in which the Government have presented the Bill, the House accepts that we have not rushed to do this, but have done it in a proportionate and balanced way. I thank noble Lords who not only participated in the meetings but also participated in Committee in order to fashion a way forward that would be acceptable to all.
The noble Earl, Lord Onslow, must forgive me if I smile at him. He will know that it is a habit I have fallen into over the past 10 years. It is not because I think that the issues are funny, but because I cannot help but be affected by the vim with which the noble Earl presents his case. It in no way detracts from it.
I want to reassure the noble Baroness, Lady Anelay. I agree with her that it is of critical importance that we do everything possible to catch, fairly prosecute, convict and apply the appropriate sentences to those who engage in this extremely serious type of offending. That will always be our first port of call. I also reassure her that we intend to target the use of these orders to interdict serious crime in the most effective manner.
On the issues that arise in relation to the standard of proof, I say to the noble Lords, Lord Dholakia and Lord Thomas of Gresford, that I understand their anxiety. It is for that reason that when we debated this issue in Committee I referred on a number of occasions to the importance of the McCann judgment. The noble and learned Lord, Lord Lloyd, is right to identify the comments made by the noble and learned Lord, Lord Hope, and others in that judgment. He will know that in so doing they referred to the sliding scale and set out how, when dealing with matters of such importance as anti-social behaviour orders, the court should view the standard of proof. I
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Amendments Nos. 1 and 2 change from the civil standard to the criminal standard of beyond reasonable doubt the standard of proof to be discharged in relation to the first limb of the test in Clause 1. Introducing such a criminal concept would be inappropriate in the context of the civil order. The noble Lord, Lord Thomas of Gresford, is right to say that we see these as preventive orders, not punitive ones. Amendment No. 36A deletes Clause 33(2), which provides that the applicable standard of proof before the High Court is the civil standard. We have included this statement to provide clarity on the standard that is to be applied by the High Court. We discussed at some length the case of McCann and the impact that it will have on proceedings in relation to these orders. We believe, as the House of Lords made clear in the case of McCann, that the civil standard of proof is flexible and has a sliding scale from on the balance of probabilities at the lowest to beyond reasonable doubt at the highest. In case anyone misunderstands, I believe that the House should be confident that McCann will apply to the first limb.
I also thank the noble and learned Lord, Lord Lloyd, for accepting, as I do, that in relation to the second limb it would be impossible to apply the standard of “beyond reasonable doubt” because that is a matter of judgment. Both the first and second limbs need to be proven. If we have a civil standard, the court will be able to apply McCann in relation to the first limb but the balance of probabilities will be applied in relation to the second limb in the usual way. As I have said before, case law shows that the court is likely to require a high standard close to “beyond reasonable doubt” in relation to the first limb of the test for obtaining an order, and therefore we believe that the amendments are inappropriate and unnecessary.
It may be helpful at this stage if I outline the procedure that I believe is likely to be adopted before these orders are made. I know that it is more usual to take such an approach in Committee but I shall explain why I think it might be helpful. Many questions have been asked about how the orders will come about, what evidence will be called in support and what procedural rules will apply. That confusion has caused a great deal of concern and contention, and a number of people have invited me to set out what the procedure is likely to look like. Therefore, with the leave of the House, in order to frame our subsequent discussions it may be helpful, unless anyone indicates that it is not, if I set that out now.
The first step will be for one of the relevant applicant authorities listed in Clause 8 to decide whether to make an application for an order. They will make the decision on the basis of advice from law enforcement, such as the police, Her Majesty’s Revenue and Customs and the Serious Organised Crime Agency, and on the basis of their own experience of whether the case is suitable for an order.
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Guidance will be issued to the relevant applicant authorities to assist them in this work. Paragraph 4 of Schedule 2 specifically provides that the Code for Crown Prosecutors can include guidance on the general principles to be applied by Crown prosecutors in relation to serious crime prevention order proceedings. Paragraphs 9 and 18 of Schedule 2 make corresponding provision for the Director of Revenue and Customs Prosecutions and the Director of Public Prosecutions for Northern Ireland respectively. There is no corresponding provision in relation to the director of the Serious Fraud Office because he does not have a statutory power to issue guidance to his staff, but he will issue non-statutory guidance. Furthermore, the functions conferred on the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the director of the Serious Fraud Office must be expressly delegated to their staff. We discussed that in Committee. This will ensure that only those with suitable training and expertise will deal with serious crime prevention order cases.
Once the decision to make an application has been reached, the relevant applicant authority will make an application to the High Court. This will be by way of an application notice under Part 23 of the Civil Procedure Rules. Those rules will apply to all applications for orders in the High Court. They contain extensive and detailed guidance for the court on the conduct of proceedings for court orders. The rules will apply to applications for serious crime prevention orders, as they apply to any other application for a court order. In particular, the overriding objective will apply: the court must deal with all cases justly.
As I have explained before, as an additional safeguard in relation to serious crime prevention orders, the applicant will be required to include information in the application notice about the possible impact of the order on third parties. This will help to ensure that the court has all the relevant information when making its decision and determining what is reasonable and proportionate.
The application notice will be served on the respondent and a hearing date will be set. At the hearing, the applicant authority will present its case for the order being made and the respondent will be able to respond to that case. The applicant will need to provide the court with evidence to persuade it that the test for making an order has been met and that the terms of the order are appropriate. It is hard to predict what evidence might be needed, but it is likely to include testimony from law enforcement officers, in the form of either oral evidence or a witness statement and documentary evidence, such as proof of any convictions that are relied on. In addition, Clause 9 of the Bill makes express provision for third parties to make representations to the court to ensure that their rights are taken into account.
Having heard both sides of the case, and any third parties, the court will proceed to decide whether to make an order. The court is a public authority within the meaning of the Human Rights Act 1998, which means that it must act compatibly with the
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If an order is made, Clause 10 of the Bill ensures that it will take effect only if the respondent was represented at the hearing or if he is served with a notice in person or by recorded delivery. The respondent may appeal to the Court of Appeal against the High Court’s decision, as set out in Section 16 of the Supreme Court Act 1981 or, as the case may be, Section 35 of the Judicature (Northern Ireland) Act 1978. Clause 24 also provides rights for third parties to appeal. Once any order has been made, an application for variation or discharge can be made by the subject of the order, the relevant applicant authority or a third party. That will ensure that the necessity of the order can be kept under review.
I have focused on the process in the High Court because that is where we expect most orders to be dealt with. However, the same principles will apply when the Crown Court is asked to make an order. The only significant differences are, first, that the Crown Court will not consider whether the person has been involved in serious crime, because he will have been convicted of an offence, and, secondly, that special rules of court will need to be made, because the Civil Procedure Rules do not apply automatically in the Crown Court. It is that normal civil process, as set out in the Civil Procedure Rules, together with the enhanced safeguards that we have included, such as the provisions relating to third parties, which will ensure that the orders are reasonable, proportionate and used appropriately.
I certainly hope that the noble Earl, Lord Onslow, will agree that that is all compatible with what we would like to see in our good British courts. It does not really give rise to alarm or concern that we shall go off on an illiberal frolic that would enable us to interfere improperly with the rights of our citizens.
Lord Mayhew of Twysden: My Lords, is the Minister’s objection to these amendments procedural or substantive? I had the impression that it was procedural when she said that it would be inappropriate to have the criminal standard of proof because the purpose of making an order of this character, or of applying for one, was not punitive but preventive. If one is on the receiving end of such an order and one is told that one cannot go there, live here, or have dealings with so-and-so, it does not make much difference whether it is one or the other. If, on the other hand, the objection is substantive, how does that stand up to her concession to the noble
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Baroness Scotland of Asthal: My Lords, it is both. The whole point is that, to persuade the court to make this order, one has to persuade it of both limbs; they are conjoined. First, one has to satisfy the court to the appropriately high standard on limb 1; if the court is so satisfied, it has to turn to limb 2, which is an issue of judgment. The process through which the court will undertake that exercise will be part of the civil process. The noble and learned Lord, Lord Lloyd of Berwick, accepts—as, I understand, does the noble and learned Lord, Lord Mayhew—that one simply could not apply the standard of “beyond reasonable doubt” to the second limb. If one looks at the amendment simpliciter, one would have to have beyond reasonable doubt for the first limb and a balance of probabilities for the second.
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