Clause 1 [Serious crime prevention orders]:
1: Clause 1, page 1, line 6, after “satisfied” insert “beyond reasonable doubt”
The noble Lord said: My Lords, we had a lengthy discussion on these amendments in Committee. We said then that we would listen to the Minister’s arguments and come back on Report. Needless to say, we are still concerned about serious crime prevention orders, which are probably the most contentious proposal in the legislation. We have been assisted in our amendments by Liberty, which objects in principle to the imposition of serious crime prevention orders on people who have not been convicted of any crime. We doubt seriously whether they will work in practice and consider them to be an unacceptable legal shortcut that goes against basic British values like the presumption of innocence and the right to a fair trial. We seek to address some of the most unjust and dangerous aspects of this proposal.
At this point, I want to say how delighted I am that the noble and learned Lord, Lord Lloyd of Berwick, has joined us with his Amendment No. 36A, which is grouped with our Amendments Nos. 1 and 2. Further, this morning I received the relevant report of the Joint Committee on Human Rights, and I may use some of its observations. The Minister will have an opportunity to comment on what the committee had to say.
Amendments Nos. 1 and 2 clarify that in serious crime prevention order applications, the criminal standard of proof will apply when establishing whether the conduct justifying the orders took place. They would not affect the standard of proof applied when a court determines whether an order would protect the public. What is our argument? It is a key principle of the English legal system that more rigorous standards are applied to criminal trials than to civil proceedings. A civilised and democratic state can justify using greater force to punish an individual and restrict their rights only if it has been established beyond reasonable doubt and on the basis of reliable evidence that the individual has committed an offence deserving of such punishment. The Government have insisted that these orders are not punitive but preventative, and that civil rather than criminal fair trial standards are therefore appropriate.
Neither Liberty nor those of us on these Benches are convinced. The orders would impose severe restrictions on individual rights and freedoms, including a restriction on with whom a person can communicate and where they can live, work or travel. They would enable criminal sanctions to follow from doing something that was not itself a crime, and would attach the stigma of serious criminality to their recipients. It is difficult to see how such severe restrictions on an individual’s freedom of movement could be characterised as anything but punitive. No amount of dressing up of the language will convince us otherwise.
For that reason, the amendments would make it clear in the Bill that the criminal standard of proof applies and requires the criminal rules of evidence to be adhered to. We believe that the appropriate standard of proof to apply in establishing whether the conduct justifying the orders has occurred should be the criminal test of “beyond reasonable doubt”, rather than the classic lower civil test of “on the balance of probability”. The Government and the courts appear to agree with this. I quote the noble Baroness, Lady Scotland, when she indicated at Second Reading that in practice the courts are likely to use the version of the civil standard that is similar to the criminal standard:
“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 ... 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.]
She did not suggest that this was a concern for the Government. The only difference between us and the Government on this point, therefore, seems to be whether this should be stated in the Bill or left to judicial discretion. We see no reason why Parliament should not make the applicable standard clear in the Bill and thereby increase legal certainty.
I now come to the report of the Joint Committee on Human Rights, published this morning. The committee makes two major observations and they are very useful points which support the amendments we have put forward. It says:
“In our view, however, a combination of the implication that a person has been ‘involved in’ serious crime, the severity of the restrictions to which they may be subject under a SCPO, and the possible duration of such an order (up to 5 years and indefinitely renewable) means that in most cases an application for a SCPO is likely to amount to the determination of a criminal charge for the purposes of Article 6 and therefore to attract all the fair trial guarantees in that Article”.
It goes on to say:
“In our recent work on counter-terrorism policy and human rights we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside of the criminal process and which avoid the application of criminal standards of due process. We are concerned that the introduction of SCPOs represents a similar step in relation to serious crime generally. In our view, the human rights compatible way to combat serious crime in the long run is not to sidestep criminal due process, but rather to work to remove the various unnecessary obstacles to prosecution, for example by relaxing the current prohibition on the admissibility of intercept material, lowering the charging threshold, allowing post-charge questioning and the drawing of adverse inferences (with appropriate safeguards), and enhancing the incentives to give evidence for the prosecution”.
This issue will not go away. There is still time before Third Reading to resolve it, and I look forward to the Minister’s response. I beg to move.
My Lords, in Committee, the noble and learned Lord, Lord Mayhew, who I am glad to see is in his place, described the amendment as being of great importance, and he was surely right. It is important because a person should not be subject to the prohibitions and restrictions on their personal freedom which are set out in Clause 5, unless the case against them is established on a criminal standard of proof.
I listened very carefully to the Minister’s reply in Committee and I have read it in Hansard. She made two main points; first, that in civil cases, the more serious the allegation, the higher the standard of proof. As a general statement, that is true. She said that the civil standard would suffice here because it can come very close to the criminal standard—so close as to be virtually identical. But, with great respect, that argument will not do. This very point was decided unanimously by the House of Lords in the case of McCann. It concerned an ASBO. The House of Lords did not say that in an ASBO case the standard of proof came very close to the criminal standard of proof or was virtually identical to it; the House of Lords said that it was the criminal standard of proof. That is the purpose of the amendment.
The Minister invited me to read again the McCann case lest I had misunderstood it. I have done so, but I repeat what the noble and learned Lord, Lord Hope, said in the case at page 825, 2003 1 Appeal Cases:
“Given the seriousness of the matter, the court should be satisfied to the criminal standard”.
The noble and learned Lord, Lord Steyn, said at page 812 of that report that magistrates,
“must in all cases … apply the criminal standard”.
That could hardly be clearer. Although the Minister’s arguments are often very plausible, she cannot plausibly argue that the standard of proof should be less in serious crime cases than in ASBOs, nor surely can she argue that we should depart from the law so recently laid down unanimously by this House in McCann. I suggest with diffidence that it is sometimes helpful in legislation to call a spade a spade. If the standard of proof is going to be the criminal standard, as it should be, let us call it just that.
The Minister’s second argument in Committee was that there are two separate stages under Clause 1. At stage 1, the court must be satisfied that the person is involved in crime; at stage 2, the court must have reasonable grounds for making the order. She is right: there are two separate stages. As she pointed out, stage 2 involves a question of judgment and it does not make sense, when one is concerned with a question of judgment, to talk about a standard of proof, whether civil or criminal. I agree. However, the amendment does not touch on stage 2; it touches only on stage 1. It is all the more important that, at stage 1, the criminal standard of proof should be applied because of the extraordinary width of the definition of being involved in serious crime contained in Clause 2(1)(c). I have never seen anything like that provision in a criminal or quasi-criminal statute. I am very doubtful whether it would pass the test of legal certainty. But no amendment to Clause 2(1)(c) is proposed, so I say no more about it. On the question now before the House, I submit that the case made out for the criminal standard of proof is overwhelming.
My Lords, the report of the Select Committee on the Constitution set out clearly the challenge that faces the House today in our scrutiny of Part 1. It said:
“A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders”.
That is what has guided us on these Benches in how we have approached our consideration of Part 1. In these amendments we reach the core of the objections of the noble Lord, Lord Dholakia, to Part 1.
I have always made it clear that it is vital that the Government—any Government, indeed—should protect the British public from those who do everything they can to encourage serious organised crime, profit from it and yet ensure that their own hands do not appear dirty in public. They keep in the background but profit from it by millions and billions of pounds and cause destruction to people’s lives. We know that it is difficult to take measures to protect the public from people like that, but we also know that we must try to do so. However, the methods that we adopt must be proportionate and effective—the two go together—without undermining our own system of law and justice.
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 protection of the public. That is what prison should be about; we remain firmly of that view.
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.
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.
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 court of the country the criminal standard of proof will be required in any event. Why do we have to go through that process? I support the amendment and I hope that the Conservative Benches will support it too.
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.
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.
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. My noble friend Lord Onslow said that the measure would take away the right of British citizens to a fair trial. The British citizen also has the right to be protected from what we learn are the many threats building up in our society that can be very damaging to our people.
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.
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 do not intend to reiterate all the arguments that were made in Committee because they still hold true. I am very grateful for the fact that, in opening his remarks on this amendment, the noble Lord, Lord Dholakia, put the Government’s position very clearly and fairly.
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.
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 convention rights. So the concerns of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, about the Human Rights Act can all be dealt with by the High Court at an appropriately high standard. As a consequence, any order that it imposes must be compatible with the convention rights. An order could not include a requirement for house arrest, because such a measure would be incompatible with Article 5 of the European Convention on Human Rights. If a proposed obligation engages a person’s rights under Articles 8, 10 or 11, the court would have to be satisfied that the interference was necessary and proportionate.
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.
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 and learned Lord, Lord Lloyd of Berwick, that, in any event, the courts will, in a case of this character, apply the civil standard of proof so toughly as to be virtually indistinguishable from the criminal standard? Is it one or the other?
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.
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.
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 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.
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.
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.
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]:
5: Clause 2, page 2, line 26, after “has” insert “conducted himself in a way that was unreasonable in the circumstances and, by doing so, has”
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,
“any justification for applying the reverse burden of proof”.—[Official Report, 7/3/07; col. 279.].
We entirely agree with her and bring forward these amendments accordingly. I beg to move.
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 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.
[Amendment No. 6 not moved.]
7: Clause 2, page 2, line 36, leave out paragraph (b)
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,
“in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application matter as if it were so specified”.
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 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.
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.
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.
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 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.
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.
My Lords, I read from the report of the Joint Committee on Human Rights:
“The House of Lords Constitution Committee in its report on this Bill had grave concerns as to whether the Bill as currently drafted is compatible with the constitutional principle of the rule of law and legal certainty, because of the lack of clarity about both the circumstances in which SCPOs might be made and their ambit when they are made”.
It then says:
“For the reasons we have summarised above, we have very similar concerns about whether the power to interfere with various human rights by imposing a SCPO is sufficiently defined in law to satisfy the requirement of legal certainty which is also a fundamental feature of human rights law, including the ECHR”.
Further on, the report says that,
“the Bill should be amended … to remove the power of the court in clause 2(2)(b) to treat an offence as if it were specified in the Schedule of offences to which the Act applies because the court considers it to be sufficiently serious”.
We must do that. I think that there is something in Alice in Wonderland about the mad Queen saying, “If what I say is right, it’s right”—I cannot quite remember the exact quote, and if I had had time to look it up I would relish repeating it to your Lordships.
Was it? I thought that the Government were the Queen of Hearts, but they now appear to be Humpty Dumpty. The Minister may laugh this time, because I am making a joke, so I am delighted that she does. But I hope that she will pay attention and that the Government will listen, because there are deeply worrying things in the Bill, and this is one of them.
My Lords, like the White Rabbit I have no time, so I will not take your Lordships’ time other than to lend my voice to those of other noble Lords who have spoken in this debate. It is much better that the offence should be added to the schedule and then be subject to parliamentary scrutiny in the usual way, than for us to have the very loose form of drafting that we see here.
My Lords, I have not the slightest doubt that the procedures under the Bill will be held to be criminal procedures and that all the requirements under the Human Rights Act will have to be fulfilled. Will the Minister explain how Clause 2(2)(b) can possibly be compatible with the requirement of certainty in a criminal cause or matter?
My Lords, we discussed these amendments in Committee and I do not want to tire the House by repeating everything that I said then. However, I appreciate why the noble Baroness, Lady Anelay, has tabled them again, and I hope that my earlier explanations of the practical process for dealing with these orders will have reassured her as to our intention.
The noble Baroness asked about deputy High Court judges. I should declare myself both as a recorder and as being ticketed to sit as a deputy High Court judge. We have worked hard with the judiciary and the Judicial Studies Board throughout the process of implementing the legislation to try to assess the training requirements for ensuring that there is sufficient capacity in the High Court to deal with the limited number of orders that will be sought. The noble Baroness will know that deputies are used judiciously to meet need.
The noble Baroness spoke about consistency. High Court judges will have regard to one another’s decisions and to whether offences should be treated as being sufficiently serious as to fall within Schedule 1. There will also be opportunities for appeals. The Court of Appeal’s decisions will be binding on the High Court and Crown Court judges. However, whether an offence that is not in Schedule 1 should attract an SCPO is likely to depend on the circumstances of a particular case. We do not intend to create an order that can be used against all offenders. Orders will target those who are engaged in serious criminal behaviour that causes real harm to people. That is why the noble Baroness was right to remind the House when we were talking about Amendment No. 1 that it is expected that about 30 of these orders will be made per year.
The discretion on conviction of the High Court or the Crown Court to treat offences other than those that appear in Schedule 1 as serious offences is important. It is necessary to ensure that the courts can impose an order where it is appropriate and where the order will prevent harm to the public. We have sought to include in Schedule 1 a list that sets out the majority of offences in which we believe serious criminals engage. However—I know that the noble Lord, Lord Dear, will have had great experience of this—it is very difficult to constrain what serious criminals will choose to do from time to time. They constantly look to adapt their operations to avoid innovative approaches by law enforcement agencies when they become aware of them. Senior law enforcement figures have described this to me as “the criminal market”. As soon as law enforcement agencies are able to make involvement in an area of the market too high risk, serious criminals do exactly what a good businessman would do and diversify. With that in mind, we think that it is not a good idea to restrict the ability of our senior judiciary to identify and deal with serious criminal behaviour reasonably and within the bounds of convention rights.
The provision does not create uncertainty. A framework is provided by virtue of the way in which Clause 2(2) is structured. It provides clearly that it will be for the court to determine whether a serious offence has been committed and that, for it to do so, the offence must be specified, or fall within a description specified, in Part 1 of Schedule 1, or must be, as Clause 2(2)(b) states,
“one which, in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified”.
This is not saying to the court, “You can go off on a frolic of your own”. This is the framework, and the court would have to justify why it came to the conclusion that the offence should, in the particular circumstances of the case, be so specified, bearing in mind the nature and the mischief that the order seeks to address.
It would be inappropriate to include offences such as assault in Schedule 1, as we do not want these orders to be available against all forms of assault. However, when, for example, the assault is being used to extort money, as a part of a pattern of serious criminal behaviour, we should be able to use these orders.
The schedule provides certainty as to the majority of the offences to which we intend these orders to apply. It also provides the guidance necessary for the courts in exercising their discretion; they can treat an offence as serious for the purposes of the orders only if they consider, in the circumstances of the case, that it is sufficiently serious to be treated as if it were specified in the schedule. The offences in the schedule provide the court with guidance as to what is “sufficiently serious”.
We believe that the approach of the schedule in providing a significant element of certainty and guidance, teamed with a limited discretion, which will be exercised by the senior judiciary, provides an appropriate and effective means of defining what constitutes a serious offence for the purposes of these orders. As a result, we resist these amendments. I hope that I have been able to say enough to satisfy noble Lords that the concern that they have, properly, about how the powers will be used is not actually based on sound evidence. We believe that the powers will be proportionate and appropriately targeted and honed by the court in a way that will enable us to see justice done both for the individual and for those upstanding members of the community who are badly affected by serious crime.
My Lords, I am grateful to the Minister for her response but I am particularly grateful to all noble Lords who have expressed a concern similar to mine about Clause 2(2)(b). My noble friend Lord Waddington emphasised the importance of certainty in the law and of people knowing the consequences of their actions under legislation that is passed. The noble Viscount, Lord Bledisloe, said that there should be either Schedule 1 or Clause 2(2)(b)—that one should have one or the other but not both. That is very much behind what the noble Lord, Lord Dear, was saying; it might be better to add offences to the schedule than to leave a wider discretion.
The Minister responded by saying that we need the flexibility—and flexibility is the mantra of any Government, of course. The example that she gave was assault, which is a clear example of an offence in which there can be a whole range of seriousness. The noble Lord, Lord Thomas of Gresford, pointed out that, under criminal procedure, we would not have to worry so much, because in sentencing one would consider the range of assault to judge how serious it was. But we are in civil procedure—and here we are stuck with Clause 2(2)(b). There are considerable concerns. I can see why the Minister wishes to keep that flexibility, but my noble and learned friend Lord Mayhew pointed out that this is really not a judicial function and Clause 2(2)(b) goes too far, and I want to consider further what he said.
I am minded to consider further before Third Reading what appropriate measures I should take and whether I should bring the amendment back in a different form or bring it back at all. The killer blow in a sense was given by my noble friend Lord Onslow, who referred to the report from the Joint Committee on Human Rights. I have done a speed read of that report; it was not vastly long, but neither has been the time between its publication and our debates this afternoon. Today, at lunchtime, we have also had the publication—
My Lords, the noble Baroness talks about bringing the amendment back at Third Reading. Can she explain how within the rules of procedure she can possibly justify bringing it back for the third time at that stage rather than testing the opinion of the House now?
My Lords, I do so gladly. Like the noble Viscount, I am a keen observer of the rules at Third Reading. I did not say that I would bring the measure back; I said that I would consider whether I should do so. As part of that consideration, I shall discuss with the Public Bill Office whether my reasons for bringing it back are proper. If I am told that they are not, I shall not bring it back. Even with last year’s changes to the wording in the Companion, I understand that it would be in order to bring the measure back provided that recent changes had occurred that made further consideration appropriate. I was about to explain that those recent changes arose in the report of the Joint Committee on Human Rights. It is right that we should consider that properly. The noble Viscount shakes his head but I consider that the Joint Committee’s report should be properly considered.
I am also concerned about the report of the Delegated Powers and Regulatory Reform Committee, which did an amazing job turning round between Tuesday morning and lunchtime today a report on other government amendments to Part 2, which at first might not look too much of a problem but which may pose difficulties. If information comes to light two hours before one comes into the Chamber, our procedure gives us the opportunity to consider whether we should bring back an amendment at Third Reading, which is why I do not wish to press an amendment today that I have not had the opportunity to consider fully on Report. That does not mean that I shall bring it back, but I shall do so only if it is permitted by the rules of the House, none of which I have ever either broken or sought to break. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 to 12 not moved.]
Clause 3 [Involvement in serious crime: Northern Ireland orders]:
[Amendments Nos. 13 to 20 not moved.]
21: After Clause 3, insert the following new Clause—
“Involvement in serious crime: evidence
(1) In considering for the purposes of this Part whether a person is involved in serious crime, the High Court may take account of any evidence admissible under the Regulation of Investigatory Powers Act 2000 (c. 23).
(2) Schedule (Intercept evidence) (which makes provision for the admissibility of intercept evidence in cases involving serious crime) has effect.”
The noble and learned Lord said: My Lords, this amendment was also considered at considerable length in Committee. At the end of her reply the Minister, with her usual courtesy, offered us the choice of what she called either her short reply or her long reply. The record shows that I was in favour of the short reply, but the Minister chose otherwise, no doubt because of the strong support for the amendment from the noble Lord, Lord Dholakia, on the Liberal Democrat Benches, the noble Lord, Lord Henley, on the Conservative Benches and my noble friend Lord Dear on the Cross Benches.
I am glad that the noble Baroness chose as she did because it means that we know the full extent of the government case for not admitting intercept evidence in criminal prosecutions—something which, as I have said so often in the past, is permissible in every other country of which I am aware. It simply does not make sense that we alone should exclude this evidence.
Towards the end of her reply the noble Baroness said that if she could find a way to admit intercept evidence safely, it would be,
“a consummation devoutly to be wished”.
In other words—I do not aspire to her Shakespearean quotation—it would serve a useful purpose. It would enable prosecutions to be brought in at least some cases of serious crime where they cannot be brought at present. I do not think that anybody now suggests otherwise.
So the desire is there on the part of the Government. Why, then, do they not do it? I suggest that the clue is to be found in a sentence or two of the noble Baroness’s reply. At the very end of her reply, she said:
“Neither we nor anyone else have found a way of enabling us to use the material safely. If we could, we would”.
A little later she added:
“I assure the noble and learned Lord that, if we can find a way to do as he proposes, he will be the first to hear”.—[Official Report, 7/3/07; col. 313.]
She said that neither we nor anyone else had found a way of admitting such evidence safely, but I found that very hard to reconcile with our experience gained from other countries.
In Committee, I referred to the report recently published by the independent organisation Justice, Intercept Evidence: Lifting the Ban. Starting at paragraph 115, it set out the current experience of five other common law countries around the world where intercept evidence is used regularly in cases of serious crime. Those countries are Australia, Canada, New Zealand, South Africa and the United States. Australia is a particularly relevant case in point, because the Minister has been kind enough to write to me since Committee to correct an impression that may have been given inadvertently that in Australia intercept evidence is used hardly at all. That is not the case. In her letter to me of 23 April, she pointed out that the most recent figures, to June 2005, showed that in Australia intercept evidence has been adduced in 2,363 prosecutions, of which 1,533 have resulted in convictions. She kindly attached the table explaining how those totals were arrived at.
In the light of those figures from Australia alone—and no doubt there are similar figures from all the other countries referred to in the Justice report—the Minister has to answer this simple question. If Australia has found a way of admitting intercept evidence safely, why cannot we find such a way ourselves? The Australian figures are also useful, indeed critical, for another purpose, because they bear out the experience of our Director of Public Prosecutions, Sir Ken Macdonald. A year or so ago, he visited three countries—Australia, Canada and the United States—to find out how they dealt with intercept evidence. He found it being used everywhere he went. It was being used safely everywhere, and he found disbelief everywhere that we could do without it in our country.
Sir Ken Macdonald recently gave that evidence at a hearing of the Joint Committee on Human Rights and made an extremely powerful case for admitting such evidence now. I can say that that case was powerful, because I heard it myself. I suggest to the House that we should take his advice very seriously, especially as it confirms the advice of his predecessor, Sir David Calvert-Smith—now Mr Justice Calvert-Smith. They are not the only people to have expressed such a view. In Committee, I listed a number of others who had done so. It would be tiresome to repeat that list now. But many other people who are in a good position to judge say that the time has now come for intercept evidence to be admitted.
Despite all of that experience world-wide, and despite the views expressed by so many people who are qualified to express views on this matter, I accept that some people say that it cannot be done safely, that we risk too much and that, sooner or later, the secret processes that we are so anxious to protect will come out in court. No doubt, some noble Lords will express that view this afternoon, although there is a notable absentee—but she may come later.
To those who still believe that admitting the evidence cannot be done safely, I say two things. First, they should look elsewhere. It has been and is being done safely in all the countries that I have mentioned, not to mention all the European countries—France, Germany, Italy, Holland and so on. Secondly, they underestimate the power of the court under the public interest immunity procedure, which is now clearly set out in black and white in Part 25 of the Criminal Procedure Rules 2005, and appendix 1 of Blackstone. I assure the House that there is no prospect of any judge of the High Court ordering the disclosure of material that would damage the public interest by revealing sensitive matters that ought not to be revealed. If any judge did so order, there would be an immediate appeal to the Court of Appeal.
It comes to this: the Minister says that she would admit the evidence if a way could be found of doing so safely—that the desire is there. I hope that I have demonstrated to the House that a way has been found of doing so safely in all the other countries to which our system is most similar, and many others to which I have not referred. I am left with the thought that what is lacking is not the ability to make the evidence admissible, but the political will to make a decision after all these years. I hope that this House will now make that decision for the Government. I beg to move.
My Lords, in the absence of the recognised expert in the House on the issue, the noble Baroness, Lady Ramsay—I am sorry to see that, because she really understands the sophisticated inner workings of all this—I must yet again oppose the noble and learned Lord, I am afraid. I am concerned that if we use this evidence in the case of serious crime, that precedent will lead to its use in terrorism cases, where the police and security services necessarily work extremely closely. I remain convinced that the dangers to sources and to highly sophisticated methods are incontestable. We are not just talking about conventional telephone taps, which is largely what is used in other countries—there is no risk there. We are talking about something that, once lost, will be extremely difficult to replace.
I do not think that it is understood that when those who deal with this material lose a case and a method, it is extremely difficult to replace it. The time lost will be very serious. In terrorism cases, that is also a serious issue. We know that Sir Swinton Thomas and the noble Lord, Lord Carlile of Berriew, have been unwilling even to release details of the numbers of such operations, let alone their content, to the Intelligence and Security Committee, and they seem rather well placed to know the risks. They understand the extreme sensitivity of this intelligence. Like the noble Baroness, Lady Ramsay, I am concerned about the immense weight of work in intercept operations; if we lose one, we have to start again way down the hill.
I plead with the House to take note of this. I greatly respect the noble and learned Lord, Lord Lloyd of Berwick, but in this case he underestimates the danger in a special area. This country is more exposed to highly sophisticated operations of this kind than many another. I doubt whether, in New Zealand, we have al-Qaeda and the support for terrorism that there is here. We should recognise that. We are in a rather special situation.
I know that the noble and learned Lord will refer to the United States but, there again, the workings of the NSA and the FBI and so on are rather different from ours. It is not easy to make a straightforward comparison, so I beg that these issues should be taken into account.
My Lords, I have only one thing to say. If the use of intercept evidence puts sources at risk, the Crown does not have to use it. If there is no risk and the evidence can be used safely, it should be used. It seems to me as simple as that. If the concerns expressed by my noble friend Lady Park are real, the security services will listen to what her equivalent says and they need not use the evidence. This is a permissive, not a mandatory, power. That seems to me to be the crux of the matter, and I think that we must introduce it.
My Lords, I have dialled this telephone number before and it will be no surprise to your Lordships to hear that I support the amendment. I, too, find it amazing that we are the only major developed country in the world not to use this sort of evidence in court. I am of course very sensitive to the fact that the government agencies which procure this type of evidence and those who assist them are, for understandable reasons, very cautious in protecting some of their methods. But, as the noble Earl, Lord Onslow, has just said, this is a permissive power. If highly sensitive sources are used, there is no need to put them at risk in any trial.
The noble Baroness, Lady Park of Monmouth, made an impassioned plea and I recognise the depth of feeling that she evinces. However, I am not a stranger to the inner workings of security operations, and, as the noble and learned Lord, Lord Lloyd of Berwick, said at some length—I shall not repeat it, save to align my views with his—if current-serving very senior law enforcement officers who are in touch with those agencies support the amendment, I think we should listen to them. He mentioned the DPP but he could have mentioned the current Commissioner of the Metropolitan Police and previous commissioners; he could have gone through a litany of those who, in other debates in your Lordships’ House, have been paraded. I believe that the amendment would lead to a measure which we seriously need, and I support it.
My Lords, it is some time since I was officially concerned with the business of interception. Then, from time to time we reviewed whether we should seek the ability to use intercept material as evidence in criminal trials. I can well understand the potential attractions of being able to use such evidence in those trials. I recognise that, in proposing that this should be allowed, my noble and learned friend has included a number of safeguards in the amendment, but I do not know whether those safeguards are 100 per cent proof. Unless things have changed very greatly, I believe that the conclusion that we reached when I was in the business should be unchanged. I agree with the noble Baroness, Lady Park, that the risks and disadvantages of allowing the use of intercept material in criminal proceedings greatly outweigh the potential benefits. It is with regret that I am unable to support my noble and learned friend Lord Lloyd, but I cannot and I hope that the House will not support the amendment.
My Lords, the objections raised by the noble Baroness, Lady Park, are remarkable if one looks at the schedule that goes with the proposed new clause. Under that schedule, an application to introduce intercept evidence can be made only by the prosecution. It seems a little unlikely that the prosecution will try to introduce evidence that the security services say must not be introduced, but let us assume that the prosecution does so. The Secretary of State would have to apply to the court for the evidence to be withheld. Obviously, the successor of the noble Baroness, Lady Park, would, in certain suitable circumstances, ensure that such an application was made. Will the court really overrule the Secretary of State when he says that the evidence, if admitted, would damage our security services? With the greatest respect to the noble Baroness and the noble Lord, Lord Armstrong, their objections are fanciful. I cannot understand, and the noble Baroness has given no example, how this procedure is all right in other countries, particularly America, but not here. She can hardly say that we have greater trouble with al-Qaeda than the Americans do. If the Americans, Australians, Canadians and others can manage, it is totally possible for us to do so.
In spite of the powerful character of the objectors, therefore, I hope that the House will recognise that they have not advanced any argument other than to say, “It never happened in my day and it ought not to happen now”. Everyone accepts that the amendment would solve a lot of the problems with the Bill. Most of the justification for making these strange orders is, “We can prove it but we cannot prove it in court”. If we allow the evidence to be produced in court, that problem will not arise.
My Lords, until 1993 the idea that the prosecution should have private communication with a judge and disclose to him evidence not available to the defence was simply unknown. In 1993 public interest immunity procedures were introduced in England and Wales for the first time. I had experience at that time as a prosecutor, so I was aware how the procedures were to be used. Since then, they have been developed and refined.
My Lords, I was referring to the particular procedures followed in a criminal trial, not to public immunity certificates, to which I think the noble and learned Lord refers. These procedures were introduced in 1993. I have never come across a single instance where confidentiality between the prosecutor and the judge has been broken. I would be surprised if any noble Lord present who has experience of the criminal court had come across any such instance either.
It follows that the fears expressed by the noble Baroness, Lady Park, and the noble Lord, Lord Armstrong, perhaps relate to a different era, when those procedures were not in place. We have discussed this matter on many occasions. I find it remarkable that we are discussing the criminal procedure for obtaining serious crime prevention orders in a context where these orders can be obtained on hearsay evidence—that is precisely what a later clause, which we will discuss, says—but not using evidence out of the mouth of the defendant who is before the court, proving what he said, with whom he has conspired and so on. It is extraordinary that rumour and hearsay are enough but what the defendant actually says is not.
My Lords, until October last year I was closer to this argument and debate in government than I am now. As the noble and learned Lord, Lord Lloyd of Berwick, will know, I have not been persuaded of the arguments in favour of his amendment. We went through this ground at length during the Second Reading of his Private Member’s Bill, so I will not detain the House by going into detail. I wish to make three points.
First, my understanding is that, in comparison with other countries, the relationship between intelligence agencies and law enforcement agencies is much closer in the United Kingdom than it is in virtually all the other countries that have been discussed. As the noble Baroness, Lady Park, said, we are not talking about conventional telephone tapping but about techniques that are far more sophisticated in the intercept of all kinds of electronic communications. As I understand it, that close proximity gives the character to the present debate, in particular about whether it is right to admit intercept evidence.
My second point is that the use of intercept evidence in court will produce a high volume of material in many cases because intercepts are often left to run for considerable periods of time. That will place a heavy burden on intelligence agencies, law enforcement and the prosecution because the material will have to be gone through, sometimes in minute detail, in order to ensure that material that properly ought to be kept secret is blacked out or marked in some way so that that can be done. If it is an intelligence agency tap, intelligence agents will have to do that, and I would prefer them to be used for intelligence, not as disclosure officers.
My third point is that, in moving his amendment, the noble and learned Lord concluded that the issue is a lack of political will. I assure him and the House that, from my observation of this matter, that is not the case. A considerable amount of work has gone in at high levels in government and in the associated agencies to try to produce a model that will meet the proper concerns of the intelligence and law enforcement agencies. All the models that have been produced have had an aspect which has meant that they could not go ahead. I can say with complete candour that it is not a lack of political will. Many of us would love to see the result that the noble and learned Lord wishes, but the report from the commissioner, to which I have no doubt the Minister will refer in her reply, made clear that there are serious concerns about whether this is the right way to go. I hope that this matter will not be pressed.
My Lords, in moving the amendment, the noble and learned Lord, Lord Lloyd of Berwick, referred to our debates in Committee on this subject. He failed to mention that this is the fourth time that we have covered this subject in the past two months because it featured very largely in the Second Reading debate and the Committee on this Bill and was the subject of the noble and learned Lord’s Bill that we debated the other day. We are now debating this matter again, and I understand that the Minister has debated it on a number of earlier occasions. She is now looking at me with pursed lips, if I can put it in that manner, and I offer her my commiserations for having to debate it yet again. However, after all this time, it may be that she will come to see the merits of the arguments in the noble and learned Lord’s case and of the arguments put forward by speakers from around the House. On the reaction from the Government, I hope that this debate might prove to be the exception. On this occasion, perhaps I may suggest a shorter response from the Minister, as requested by the noble and learned Lord. The noble Baroness could simply say that she accepts all the arguments that have been put forward.
The noble and learned Lord has put his arguments very well. It is not for me to reiterate all that he and others have said. I underline only one point—a point made by the noble and learned Lord and others—that in a great many other countries, outside the United Kingdom, intercept evidence has been used in the past. I refer to a trip made by my right honourable friend David Davis to North America only last month when he saw that in action. As the noble Baroness will be aware, outside the United Kingdom intercept evidence has been used to convict al-Qaeda cells in the United States following 9/11; it has been used to convict various serious criminals—the so-called five godfathers of New York crime—and it has been used before the International Criminal Tribunal for the former Yugoslavia at the Hague to convict war criminals.
The Minister noted various omissions of intercept evidence in her response to the noble and learned Lord's Private Member’s Bill, which we debated two or three Fridays ago. I direct her to those examples and I reiterate the request made at the time for the figures on using intercept evidence in serious drugs cases. I expect she will find that the issue is not as cut and dried as she then seemed to think.
On that occasion, the Minister mentioned safeguards and I would like to direct her to the evidence gathered by my right honourable friend David Davis in America last month. In America, they make essential use of classified information procedures. The safeguards are solid and the benefits are overwhelming, yet still, unfortunately, they are over there and not over here. In literally thousands of organised crime cases, intercept evidence has been the key evidence on which the verdict has turned. Often, if intercept evidence is permitted, the accused accepts a plea bargain. It is also vital in enterprise cases. Where big organised crime is involved, intercept evidence can be used in plea bargains to get minor players to give evidence against the bigger fish.
The noble Baroness may be interested to hear a little about the safeguards surrounding that procedure. As I understand it, first, a judge must authorise the use of intercept, which would be in camera, and the defence would have an opportunity to challenge that if it wished. Further, judges and defence lawyers involved in the procedure must have particular clearance to deal with intercept material. In support of those measures, evidence may be edited or summarised to protect the sources and to allow the defence to challenge it in open court.
Again in summary, to repeat what has been said by a great many noble Lords in this debate, the United Kingdom is the only country in the common law world to refuse the admittance in court of evidence gathered on home soil. Furthermore, as I understand it, evidence gathered in the United Kingdom can be admitted for use in the United States. Therefore, on this occasion, after so many earlier opportunities, we hope that the noble Baroness will consider this and, in the light of evidence in the United States of the proven effectiveness of their safeguards, be tempted to offer, dare I say, the short and sweet response to the amendment of the noble and learned Lord.
My Lords, I can certainly make this much short and sweet: I accept without qualification the arguments of the noble Baroness, Lady Park, the noble Lord, Lord Armstrong, and my noble and learned friend Lord Boyd. That could perhaps suffice, on the basis that this is the seventh time the noble and learned Lord, Lord Lloyd, has made his intercept-as-evidence proposals in the past two years, and the third time during the course of the Bill.
However, it is right for us to bear in mind what has been said so eloquently by my noble and learned friend Lord Boyd in support of the comments of the noble Baroness, Lady Park, and the noble Lord, Lord Armstrong. It has been suggested that the noble Baroness and the noble Lord are perhaps no longer in touch, or up to speed, with the current position. Of course, the noble Lord, Lord Dear, also has real experience in this field, but that cannot quite be said about my noble and learned friend Lord Boyd or fairly said about those who now put forward this argument on the Government’s behalf.
Given the history of these debates, I can do no better than refer the House to the comprehensive and detailed response I gave on the Government’s behalf on 7 March, Hansard cols. 308-314, and again on 16 March, Hansard cols. 990-995. We concluded then—as on every occasion we have considered and responded to the proposals in detail—that we are unable to utilise the material as the noble and learned Lord has sought. The proposals are not only seriously flawed but actually dangerous because, as I have explained, they provide none of the safeguards that we and others have recognised as crucial and have been working so hard to develop. Our position reflects that of the key stakeholders in the debate, which is measured and sensible. Until we find a method of delivering change in a way which protects our ability to fight terrorism and serious crime effectively, the Government cannot support a change in the law. Again, therefore, we oppose the proposals.
My response to the noble and learned Lord, Lord Lloyd of Berwick, in our previous debate was to the assertion that intercept as evidence would be particularly effective against terrorism. I gave figures from the Australian Telecommunications Interception Act 1979. The most recent, for the year ending 30 June 2005, showed that intercept was not adduced in any terrorist prosecution. As the noble and learned Lord rightly said, I then went on to deal with these other figures.
My Lords, I do not have the table from which those figures were adduced, but I can certainly find them. The important thing is that this goes to the noble and learned Lord’s point that this sort of evidence is useful and should be used. He suggested that Australia was an example of where intercept evidence had been used to that purpose. Therefore, I thought it was important for us to have the facts about the accuracy of that assertion. We now do so.
The Australian figures of course were of interest. But we know that overseas jurisdictions have, as the noble Baroness, Lady Park, indicated, a different structure from our own. Their use of intercept evidence, and the way in which they protect sensitive capabilities, differs. They wall off the more sophisticated work of their intelligence agencies, which is not produced in evidence, from the more straightforward interception work conducted by their law enforcement. We could do that, too. We have not done so because in the United Kingdom our intelligence agencies work hand in hand with law enforcement and the access to sophisticated capabilities this promotes has served us very well. Once you dismantle the protections on intercept material, you dismantle the protections for all intercept material. That requires replacement safeguards to be put in place, and that is what we are working really hard to try to develop.
I take up the issued raised by the noble Viscount, Lord Bledisloe. It has been said that if only the prosecution can decide whether it can in each case provide intercept evidence, surely that will suffice. That song has been echoed by the noble Lord, Thomas of Gresford. It is not likely to be ECHR compatible because there has to be a right to a fair trial. That—I hope the noble and learned Lord would think—would undermine the efficacy of that as a way forward.
I had wanted to keep my speech short because these issues have been trailed so often. However, it is only right to say that in many of our previous debates on these proposals I have explained why intercept evidence would not be effective against terrorist targets; why it would not obviate the need for control orders; why it is very different from eavesdropping evidence; why any gains against serious crime would be modest and time limited; why our country is different from others which do not use intercept evidence; and why technology changes, in communications and the ability to intercept, is so crucial.
I have also set out why the Government's view is and continues to be that we have to work on the issue. I do not propose to go through all the fine details. I know that the noble and learned Lord has been invited to come and see the work we are doing. I really want to underline what was said by my noble and learned friend Lord Boyd. This is not because of any lack of will. Considerable efforts are being undertaken on a continuous basis to address the issue, and we are determined to pursue the matter.
I now come to a stage where I am almost going to beg the noble and learned Lord, Lord Lloyd, to accept our bone fides on this issue. This is not implacable hostility. This is not obdurate or obstinate opposition for opposition’s sake. There is no resistance to doing this—and I reassure the noble Lord, Lord Henley, of that—because we are antipathetic to this move as a matter of principle. That could not be further from the case. But I have to tell the House that this Government will not move to introduce information on intercept which is likely to cause damage to the security of our nation. We will not move.
Unless and until we determine a way in which that can be safely used, from this Dispatch Box the House will receive the same response. If, through ingenuity and hard work, we are able to resolve the problem, I will with joy return to the Dispatch Box to explore how it has been done. Until that stage, I invite the noble and learned Lord to withdraw his amendment and to be content that he has ensured that our efforts will continue at a heightened level.
My Lords, of course I accept the bona fides of the noble Baroness and the Government, but she has not explained why it has been found possible to do what I seek to do in so many other different countries with systems similar to ours. In those circumstances, I wish to test the opinion of the House.
[*The Tellers for the Contents reported 182 votes; the Clerks recorded 183 names.]
Clause 4 [Involvement in serious crime: supplementary]:
[Amendment No. 22 not moved.]
23: Clause 4, page 5, line 6, leave out from “intentions” to end of line 7
The noble Baroness said: My Lords, I shall speak also to Amendment No. 24A. I wish to make it clear that I have brought these amendments back in order to give the Minister the opportunity to carry out a commitment she gave in Committee. These amendments probe the relevance of a person’s mental state to the ability of a court to impose a serious crime prevention order on them. They ask the Government to define what is meant by the term,
“any other aspect of his mental state”,
which is not clear in the Explanatory Notes.
Clause 4 appears to treat those with mental incapacity or mental ill-health inappropriately. It supplements Clauses 2 and 3 and contains further provisions for a situation where a third party is accused of facilitating the commission of a serious crime by another person, in some circumstances even where that offence is not actually committed. Subsections (2) and (3) require the court to ignore the intentions and other aspects of a respondent’s mental state at the time of the act in question. The court must ignore the person’s mental state.
When I moved these amendments in Committee, the Minister stated, at col. 763 on 14 March, that the reference to mental state is a reference to intention, not to mental ill-health or incapacity—that one does not need to intend the consequence of that which is sought. The Minister said that she would be happy to write to me, with copies of the letter to Members of the Committee, setting out the examples of how the provision should be implemented. Despite the welcome confetti of Home Office letters and e-mails in the past 24 hours, I have not yet received a letter referring to this specific point. Therefore, I left this amendment on the Marshalled List and invite the Minister to give further clarification. I beg to move.
My Lords, I realise that we did not go into the detail of this amendment when we discussed this clause in Committee, for which I apologise. I also apologise that the issue seems to have slipped through the net among all the other issues that the noble Baroness and I have tried to address. Perhaps I may take the opportunity to explain why such an amendment would be unwelcome.
The clause is drafted with separate references to the intentions of the subject and,
“any other aspect of his mental state”.
For the reasons I set out in some detail in Committee, we do not want the applicant authorities for these orders to have to prove that the proposed subject has a particular mental state such as intention when deciding whether they have acted in a way that has facilitated or was likely to facilitate serious crime. Clause 1 expressly sets out that these orders can be granted only where they are preventative of serious crime. The terms of the order must be reasonable and proportionate, and in this context there will be instances when the need to prevent considerable harm will mean that an order is appropriate where it would be almost impossible to show an element of intention or other mental state such as recklessness.
The effect of the amendments would be to remove the reference to other aspects of his mental state. If the court is to ignore the proposed subject’s intentions at the time, it would seem odd that it should be able to take into account those elements of his mental state which would fall outside “intention” such as recklessness or knowledge. Further, while the court will ignore the mental state of the proposed subject, it will also ignore any action which the proposed subject can show was reasonable. As I outlined earlier when discussing the process for the making of these orders, the court will make an order only where the applicant authority has proved that the proposed subject has been involved in serious crime, where the applicant can convince the High Court that the order is necessary to prevent, restrict or disrupt further such involvement, and where the terms of the order are reasonable and proportionate. Within this context, we do not think it would be appropriate for the court to be able to take into account, for example, whether the proposed subject was reckless as to their involvement in serious crime. We must, therefore, resist the amendments. However, I am grateful to the noble Baroness for her patience because it has given me an opportunity to explain why her concern here is not merited and why her amendments would undermine what I know both she and I seek to achieve.
25: Clause 4, page 5, line 16, leave out “Secretary of State” and insert “Lord Chancellor”
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 31 to 36, 75, 123 to 125, 127 and 128, 139 and 140. These simple amendments are designed to replace the references to the Secretary of State throughout the Bill with references to the Lord Chancellor.
The Home Secretary has announced his intention to hive off a substantial part of the Home Office and transfer it to the Department for Constitutional Affairs by 8 May this year—by which time it is not likely that this Bill will still be in this House and may not have started in another place—thereby creating a Ministry of Justice. The provisions of the Bill seem to fall within those that we understand will be transferred to the said new ministry. I would be grateful if the Minister could clarify whether I am right. If it is the case, surely the Minister with responsibility will be the figure known as the Lord Chancellor which, we all remember, the Prime Minister tried to abolish by mere executive fiat. Given that, he should be so named in the Bill. I beg to move.
My Lords, these amendments seek to change references made to the Secretary of State to the Lord Chancellor. I should say to the noble Lord that we do not think that is either necessary or appropriate. The amendments really relate to the power to make changes in Part 1 of Schedule 5, which lists the reference to the common law offence of inciting the commission of another offence. As my right honourable friends the Prime Minister and the Home Secretary have made clear, the focus of the Home Office will be very much on public protection and the reduction of crime. These orders will play an important role in that by giving law enforcement a flexible new tool with which to prevent harm being caused to the public by serious criminals. As a result, the order-making powers in relation to the orders will be exercised by the Home Secretary as the Secretary of State for the Home Department.
During the extensive debates on the Constitutional Reform Bill, this House considered carefully which functions it thought should fall to the Lord Chancellor. Those functions relate to the maintenance of the rule of law and the independence of the judiciary, relations with the judiciary, judicial appointments and discipline, and the support of the judiciary in the execution of their duties. Those are all very different areas from the matters set out in relation to the orders or in relation to Schedule 5, and we suggest that they do not belong together.
I turn to Amendment No. 75. The appropriate person to make the order in the future will be the Secretary of State who is responsible for Part 2. It may be that this is for a future Secretary of State for justice, or whatever title he or she may carry, but that would depend on a future transfer of functions. As things stand, the matter is clearly for the Home Secretary, and even if it was transferred to the person who also happens to hold the office of Lord Chancellor, it remains a function which does not sit with the very clearly defined list of responsibilities belonging to that post. As a result, the reference to “Secretary of State” is clearly to be preferred, and so we invite noble Lords not to insist on their amendments.
There has been no slippage in the timetable, which still stands.
My Lords, I thank the Minister for that response. I take it that some of the amendments cover matters that will be for the Home Office, while some will be matters for—I think I have the quotation from her down correctly—
“the Secretary of State for justice, or whatever title he or she may carry”.
Do I then take it that we are going to see the abolition of the title “Lord Chancellor”, a title, the Minister will remember, that this House fought hard to save on an earlier occasion after the attempt that I have referred to by the Prime Minister to abolish that post by what we might describe as executive fiat?
No, my Lords. The noble Lord will know that at the moment the current Secretary of State for the Department for Constitutional Affairs has two titles. One is in relation to the Lord Chancellor, whose role, which I have described in answer to the noble Lord’s amendment, has been clearly defined with regard to the judiciary, the rule of law and so on. Those functions currently sit alongside the Secretary of State’s other functions, but he has a two-hatted role. The roles that will be discharged by the Secretary of State will not fit within the Lord Chancellor’s role because that role has been clearly defined. These provisions sit outwith that, but within the proper ambit of what will be discharged by a Secretary of State either for the Home Department or for the new Ministry of Justice.
Again, my Lords, I thank the Minister for that response, which I think I understand. I suspect that is as close as she will come to giving us an assurance that at least the historic title of Lord Chancellor will survive as one of the hats being worn by the Secretary of State for Justice, or whatever title he or she may carry. No doubt she will be putting in a job application for that position fairly soon, and we wish her all due luck with that. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Serious offences]:
26: Schedule 1, page 46, line 25, at end insert—
“Robbery using an offensive weapon or firearm An offence under section 8(1) of the Theft Act 1968 (c. 60) where it is alleged that, at some time during the commission of the offence, the defendant had in his possession a weapon specified by the Secretary of State under section 141(2) of the Criminal Justice Act 1988 (c. 33), or a firearm or imitation firearm (as defined by section 57 of the Firearms Act 1968 (c. 27)).”
The noble Baroness said: My Lords, with this amendment I shall also speak to Amendment No. 27. Again, these amendments are brought back in order to enable the Government to keep to a commitment that was made in Committee. When I moved these amendments then, I was trying to add to the list of serious offences in Schedule 1 the offence of armed robbery committed with firearms. I tabled the amendments at that stage in probing mode, and my real objective then was to ask the Government to justify the inclusion of some crimes in the list and the exclusion of others. At that stage, the noble Lord, Lord Bassam, made the point that the Government were consulting “stakeholders”, as they call them, to ensure that the schedule should reflect the offences for which it would be appropriate in all circumstances to place an order. At col. 776 of Hansard on 14 March, the Minister accepted that there was considerable merit in my amendments. He said that although he could not accept the drafting of the amendments at that stage, he would give them careful consideration, which is why I have brought them back.
In Committee my amendment did not cover the use of a wider range of weapons, such as knives and machetes. My amendments today do that; they are broader. I have extended the range of the amendments to meet the points that were made not only by noble Lords in Committee but also, prior to that, by Mr John Letizia of the British Bankers Association, to whom I am very grateful for his helpful briefing about the extent of the dangers faced by banking personnel from armed robbery, including with weapons other than firearms.
What are the results of the Government’s further consideration about which offences should be in Schedule 1, and what changes will be made before the Bill leaves this House? Are they intending to bring forward their own amendments at Third Reading to cover this specific offence and any others? I beg to move.
My Lords, I put my name to these amendments for two reasons. First, there is understandable wide public concern about the remarkable growth of the kind of crime covered by these amendments. We have had far too many cases recently, not least in London, of people murdered in the course of crime. It seems odd, when we have a schedule listing serious crime, that crimes which the public probably think are about as serious as anyone can contemplate are not included in the list.
I commented in Committee on the provisions in the schedule to deal with environmental crimes. There was a flurry of contributions about the importance of dealing with prohibited implements for fishing and such matters. As a former chairman of the National Rivers Authority, I had the responsibility for eight years for seeing that that kind of thing was prevented and that if people attempted it, they were prosecuted. Similarly, with some success, we set about preventing the harmful deposit of waste and so on. We never found it necessary to contemplate the kind of provisions contained in the Bill, yet they are in this schedule, as are a number of other matters that no doubt in their way are crimes we should prevent, such as “illicit recording”, but which do not seem to be quite on the level of robbery with knives or guns that is likely to lead to death. If the Government are not going to provide for that kind of offence themselves, we need to have some fairly compelling reasons for including some matters in the schedule that do not appear to be of quite such a serious nature while omitting something that the public might think should be very high up the list of matters covered.
My Lords, I am grateful to the noble Baroness, Lady Anelay, for tabling these amendments. As she said, I made clear it in Committee that we were sympathetic towards them. My notes start with the word “Resist”, but I shall explain in short terms why that is.
We agree that where a person uses a gun or other offensive weapon to commit a robbery, it might be appropriate to use these orders post-conviction in order to prevent a person associating with others who were involved or with those they received the weapon from. As a result, I would like to give effect to the proper intent behind Amendment No. 26, but I cannot accept it without some further work being undertaken with counsel on the amendment to ensure that the means of giving effect to it are the most appropriate ones possible. I am sure the noble Baroness Lady Anelay, will feel able to withdraw the amendment, with that very strong and heartfelt commitment from me to ask parliamentary counsel to try to draft something that produces the end result that both she and the Government are looking for.
We will bring forward amendments to the schedule as are necessary when we have fully and properly considered this before Third Reading and we will of course be willing to discuss them with the noble Baroness before we do so. Perhaps as a courtesy we should jointly sign up to the amendments; that may be the most appropriate way of dealing with it. I am content, if the noble Baroness will withdraw her amendment, to leave it at that. We have a common view here, and a common purpose. The noble Baroness was right in the first instance—all we need to do is go away and perfect it.
My Lords, I am very grateful to my noble friend Lord Crickhowell for his support. I am grateful also to the Minister for his strong commitment to seek the advice of parliamentary counsel to do better than I ever could. I beg leave to withdraw the amendment and look forward to Third Reading.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
Clause 5 [Type of provision that may be made by orders]:
28: Clause 5, page 6, line 2, leave out from “include” to end of line 3 and insert “—
(a) a requirement on a person to answer questions, or provide information, specified or described in an order—(i) at a time, within a period or at a frequency;(ii) at a place;(iii) in a form and manner; and(iv) to a law enforcement officer or description of law enforcement officer;notified to the person by a law enforcement officer specified or described in the order;(b) a requirement on a person to produce documents specified or described in an order—(i) at a time, within a period or at a frequency;(ii) at a place;(iii) in a manner; and(iv) to a law enforcement officer or description of law enforcement officer;notified to the person by a law enforcement officer specified or described in the order.”
The noble Lord said: My Lords, I know that concerns were expressed at Second Reading and in Committee about the breadth of the discretion in the current drafting of Clause 5(7). Our primary aim is to provide law enforcement agencies with an effective tool through these orders, but we are more than willing to listen to suggestions for improving them which do not compromise that aim.
The noble Baroness, Lady Anelay, suggested in her amendments that to narrow the discretion for law enforcement agencies to specify how certain provisions of an order are to be complied with would be highly desirable. We agreed with the principle behind her amendment and have worked with parliamentary counsel to draft a provision which would give effect to it. I therefore thank her for not moving her amendments in that context.
Amendment No. 28 does precisely what the noble Baroness sought, and I hope that it also provides further certainty and clarity about exactly what we intend. The amendment replaces Clause 5(5) so that it will be possible to require the subject of an order to answer questions, provide information or produce documents, with the following details specified by law enforcement agencies: the timing of such provision, production or answering; the location at which this should be undertaken; the form or manner in which it should be undertaken; and in whose company it should be undertaken. Amendment No. 29 will delete Clause 5(7) as it will no longer be necessary in those circumstances. The discretion proposed in Amendment No. 28 is important as it provides for the practicalities of providing such material to law enforcement officers.
I thank the noble Baroness for her work on this matter. I think that we have reached a position with which we are jointly happy. I thank her again for not moving her amendments earlier. I beg to move.
My Lords, I am grateful to the Minister for moving his amendments, which I support. He referred to the fact that I did not move Amendments Nos. 3 and 4. I made it clear to the Bill team earlier that it would be inappropriate to do so, not just because the government amendments are superior to mine, but also because, had the Government’s amendments been grouped with mine, the Government would have been prohibited by procedure from introducing amendments, answering any questions that noble Lords might have had and then summing up. They would have had only one bite of the cherry, so it was right that the House should have had the opportunity to question them if need be.
It was right that Clause 5(7) should be removed. My noble and learned friend Lord Mayhew of Twysden spoke eloquently on that matter in Committee. The discretion left to law officers in the Bill as it stood before amendment was too wide. On the other hand, I recognise the importance of flexibility, as there is, in any event, when an order is made by a court. There should be an opportunity later to provide the fine detail of what somebody should do. The Government’s amendment appropriately sets out the kind of activity or prohibition that a law enforcement officer should later impose. It provides the court with the power and authority to set out the range of prohibitions that should be imposed. I support the amendments.
My Lords, we are grateful to the Government for moving so far on this issue. We were very concerned about the width of the provision in subsection (7), as my noble friend Lord Dholakia made clear in Committee. At that time, the noble Lord, Lord Bassam, came out with some very emollient words, and he has completely fulfilled the expectations that we had of him, as he normally does.
On Question, amendment agreed to.
29: Clause 5, page 6, line 9, leave out subsection (7)
On Question, amendment agreed to.
Clause 7 [Other exceptions]:
30: Clause 7, page 6, line 33, leave out from “order” to end of line 34 and insert “where—
(a) he is mentally disordered; or(b) he has a learning disability; or(c) he falls within a description specified by order of the Secretary of State.”
The noble Baroness said: My Lords, I moved a broader amendment in Committee and have returned to it to enable the Minister to fulfil yet another commitment. This one was given at cols. 789-790 of Hansard on 14 March. Clause 7 provides that the Secretary of State may, by order, expressly exclude the application of a serious crime prevention order to those people who fall within a specified description, but, at present, the only class of people which is specifically excluded in the Bill are those who are under the age of 18.
Paragraph 8 of the fifth report of the Delegated Powers and Regulatory Reform Committee observes that the House may wish to seek a fuller explanation of the Government’s intentions for the use of this power. It notes that that the memorandum from the Home Office states that,
“there may be certain persons that should not be capable of being subject to a serious crime prevention order because it would not be appropriate for them to be so subject”.
I asked in Committee whether the Government might consider exempting, for example, those who had a history of mental incapacity or mental illness. The noble Lord, Lord Bassam, said that he had some sympathy with my point and that he would take the amendment away for further and perhaps fuller consideration. He made a commitment to return to the House on this issue on Report. As I did not note a government amendment on the matter on today’s Marshalled List, I maintained my own amendment. It invites the Minister to tell the House the results of the Government’s further consideration. I beg to move.
My Lords, the House looks forward to hearing from the Minister, first, why she has not responded in the way that she said she would and, secondly, whether she agrees that an order could not be applied to mentally disordered people and those with a learning disability, whom the amendment would exclude. I think that those were the points that my noble friend was trying to make. I hope that she will receive a precise answer.
My Lords, I, too, have great sympathy with the intention behind the noble Baroness’s amendment. It is vital that those who have severe mental disorders are given the necessary and appropriate treatments for their illnesses rather than simply treated in the same way as others when they come into contact with the criminal justice system. However, I hope that I will be able to explain why I am confident that the intention is met in the way in which the courts will consider the granting of an order without making provision for it in the Bill.
The noble Baroness will know that the clause provides the Secretary of State with a power to make an order that certain persons as specified in an order cannot have an order imposed on them. The reason for this is that the orders apply to organisations, including bodies corporate, partnerships and other unincorporated associations, as well as to individuals. It is not possible to say categorically that there are not, or will not be created, types of body to which it would be wrong or inappropriate to give an order.
From the evidence that we have, the courts will make judgments on whether the proposed subject was in a fit enough mental condition to be made subject to an order. If a person was severely mentally incapacitated such that he could not conduct his affairs it is very hard to see how any order could be justified. That responds to the concern expressed by the noble Baroness, Lady Carnegy of Lour, about those who either lack capacity or have diminished capacity.
For this reason, we believe that the amendment is unnecessary and resist it. However, I assure the noble Baroness that we went back to test out whether our confidence that this was the right way and would work was correct—and we believe that it will. That is why there is no amendment from the Government speaking to the issue.
My Lords, I am grateful for the support of my noble friend Lady Carnegy, whose explanation clarified what I was trying to achieve very helpfully. I accept the Minister’s further clarification and assurance and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 31 not moved.]
Clause 27 [Powers to wind up companies etc: England and Wales]:
[Amendments Nos. 32 and 33 not moved.]
Clause 28 [Powers to wind up companies etc: Northern Ireland]:
[Amendments Nos. 34 and 35 not moved.]
Clause 32 [Overseas bodies]:
[Amendment No. 36 not moved.]
Clause 33 [Proceedings in the High Court]:
[Amendment No. 36A not moved.]
37: Clause 33, page 22, line 19, at end insert—
“(3) Notwithstanding this, the rules on admissibility of evidence to be observed in such proceedings shall be the same as those observed in trials on indictment; and no person shall be required in such proceedings to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment.”
The noble Lord said: My Lords, I referred earlier to the fair trial provisions, which in my view will be held to apply to proceedings of this nature. I mentioned two matters: the standard of proof and the admissibility of hearsay evidence. I start by saying that in the case of McCann the House of Lords, while holding that the civil standard of proof for ASBOs should be virtually the same as that in criminal proceedings, nevertheless permitted the use of hearsay evidence in obtaining anti-social behaviour orders. However, we are not dealing with those orders here but with serious crime, and very serious crime as set out in the schedule that we discussed a moment ago.
The two amendments propose that in the applications that will be made by prosecutors for serious crime orders, while the standard of proof should be high, in addition to that the rules as to admissibility of evidence to be observed in such proceedings shall be the same as those observed in trial on indictment. That same provision would apply not only to proceedings in the High Court that start without a criminal conviction but also to proceedings in the Crown Court when the application is made for an order following a conviction. In both instances, we submit that the proper way to prove involvement in serious crime is by proper evidence and not by hearsay evidence, as proposed in the Bill.
The Prime Minister said in a speech to the Labour Party conference some years ago that the hearsay rule is an outdated relic of Dickens’s England. That is a very surprising remark coming from that source; it is not a relic but a living principle applied in every criminal court in this country. I beg to move.
My Lords, we have already discussed in some detail the appropriate standard of proof for the orders and I hope that I have set out with a degree of clarity how the process of how the orders are made will operate. What I said at that point will provide some context for the discussions in relation to these amendments.
Amendments Nos. 37 and 38 would change the rules on admissibility of evidence in proceedings relating to an order from those applicable in civil proceedings to those applicable in relation to trial on indictment. What the noble Lord says is right in relation to the difference in the nature of evidence that could be used. They also provide that in proceedings for an order a person cannot be required to answer any question or produce any document that he could not be required to answer or produce at such a trial.
The court already has a comprehensive power to manage the cases and the evidence before it and will disregard anything that it considers is inappropriate to be taken into account. These are civil orders and we believe it is appropriate, therefore, that the rules of evidence which apply are the usual civil rules, rather than creating an unusual hybrid approach solely for these orders. For these reasons we resist the amendment.
There are safeguards inherent in the process that I have outlined. Specific safeguards are contained in the rules in the High Court, as the noble Lord will know. The proceedings before the High Court will be civil proceedings and all the normal rules of evidence will apply. For example, Clause 34(3)(a) makes it clear that the Crown Court will not be limited to considering evidence that would have been admissible during the criminal proceedings at which the respondent was convicted. This means that hearsay evidence will in principle be admissible during an application for a serious crime prevention order. However, adducing such evidence will be accompanied by the usual safeguards set out in the Civil Evidence Act 1995. These safeguards include the need to give notice in certain circumstances of the intention to adduce hearsay evidence; the possibility of calling the person who made the statement for cross-examination; the application of special considerations when the court determines what weight, if any, to give to the hearsay evidence; and the application of rules relating to competence and credibility.
Noble Lords can, therefore, be assured that the respondent to an application for a serious crime prevention order will be in the same position as any other person facing an application for a court order. In addition, due to the nature of the cases in which applications for serious crime prevention orders are likely to be made, it is unlikely that hearsay will be any more than a limited part of the case that will be presented to the court by the relevant applicant authority. The court is very familiar with attributing weight to evidence depending on its quality and nature. The reason for this is that often law enforcement officers will be able to give evidence of a person’s activities and the purpose of those activities from their own knowledge rather than having to rely on information from members of the public. So we think that there is a very solid base here.
I hope that now that I have spoken into the record all the safeguards that the noble Lord would wish there to be, he is reassured.
My Lords, I am most grateful to the Minister for giving me that comprehensive reply, but it does not satisfy me, as it does not recognise the criminal nature of the proceedings.
The whole purpose of the rule against hearsay is to prevent people being convicted on evidence that they cannot actually cross-examine. Hearsay means that the person on whose statement the prosecution relies cannot be cross-examined or questioned. It is apparent that under the provisions of the Bill it would be possible for a police officer, for example, or a member of the investigatory services to go into the witness box and say, “I was told this by X”, and there is no way in which to challenge that. The consequences on the individual facing the order are, nevertheless, severe: he can be subjected to a serious crime prevention order, which has the potential for enormous restrictions on his freedom of communication, travel and everything else. Whereas the House of Lords was prepared to accept hearsay evidence for anti-social behaviour orders, we are in a completely different league here. It is for that reason that I seek the opinion of the House on this issue.
Clause 34 [Proceedings in the High Court]:
[Amendment No. 38 not moved.]
39: After Clause 35, insert the following new Clause—
“Disclosure of information in accordance with orders
(1) A person who complies with a requirement imposed by a serious crime prevention order to answer questions, provide information or produce documents does not breach—
(a) any obligation of confidence; or(b) any other restriction on making the disclosure concerned (however imposed).(2) But see sections 11 to 14 (which limit the requirements that may be imposed by serious crime prevention orders in connection with answering questions, providing information or producing documents).”
The noble Baroness said: My Lords, as part of the consultation process for and following the Green Paper, my honourable friend Vernon Coaker met several stakeholders, including Liberty, to discuss the planned provisions for the Bill. Liberty raised the concern during that meeting that the subject of an order could be placed in an invidious position by being subject to conflicting obligations—for example, an obligation to disclose a piece of information under the provisions of an order that might conflict with a contractual duty of confidence.
We do not want these orders to affect pre-existing restrictions such as these, but equally we do not want to provide a gap whereby serious criminals could seek to create such restrictions to frustrate the court’s order. As a result, we thought it best to provide a protection for the subject of an order so that he or she would not be liable for any breach of a restriction on the disclosure of information occasioned by complying with an order. The amendment provides for the efficacy of the orders while offering important protections to the subject of the order. I have no hesitation in commending it to your Lordships. I beg to move.
40: After Clause 35, line 3, at beginning insert “Subject to the provisions of sections 11 to 14,”
The noble Baroness said: My Lords, in moving my amendment, I shall speak also to Amendment No. 41. Perhaps I should make it clear that I am delighted that the Government had their discussions with Liberty. I support the points that Liberty put forward; it is right that the Government should have responded to those points and I support what they are trying to achieve in their amendment.
Why have I tabled these amendments? It is a bit of a cavil on the drafting. I recall with great affection the work over the years of noble friends such as the noble Lord, Lord Renton, in asking, “Why have you put it in this way?”. On this occasion, it relates to subsection (2) of the government amendment. We are told,
“But see sections 11 to 14”.
Is that new Home Office drafting? I am not accustomed to it. Is “see” a direction that I must take those clauses into account? Will the noble Baroness elucidate? I beg to move.
My Lords, it would be interesting to know whether such a format as “see” exists elsewhere in legislation. It could say, “But please don’t smile”, or “But please do smile”, or anything. The amendment states, “But see sections”. If the Government’s amendment is subject to the provisions of Clauses 11 to 14, they should say so. If it is not, why do they use such wording?
My Lords, perhaps I may apologise to the noble Baroness. Because I thought that we were in agreement, I did not avail myself of the opportunity of dealing with all the technical niceties. As always, the noble Baroness, as quick as a flash, has reminded me that “full and long” often ends up being “shorter”.
Amendment No. 39 makes provision for the protection that I have already described. The second subsection reminds the reader that, while compliance with any requirement over-rides any restrictions on disclosure, there are still restrictions on the requirements that can be imposed. There is now a significant number of such signpost provisions on the statute book and we consider them to be a useful tool to help in the understanding of the legislation.
Perhaps I may provide the noble Baroness with examples of where she can find similar signposting provisions, not just in relation to the Home Office. Provisions similar to subsection (2) of the new clause are to be found in Sections 1(3) and 4(4) of the Companies Act 2006, Sections 1(6), 2(2) and 3(2) of the Income Tax (Trading and Other Income) Act 2005, and Section 5(6) of the Housing Act 2004. There are similar provisions in the Armed Forces Act 2006, the Charities Act 2006 and the Serious Organised Crime and Police Act 2005, the last of which the noble Baroness will remember. This tool has been used with effect in the past and it helps better to understand the legislation.
To make the amendments as tabled would be inappropriate, as they do not reflect the order of events that would occur. The order of events is that a requirement is imposed in an order, a person complies with it and that compliance does not breach any other restrictions on disclosure that might exist. The statement that the compliance does not breach any restrictions on disclosure is not, strictly speaking, limited by the statements in Clauses 11 to 14 about the types of requirements that can be imposed. Rather, the statements in those clauses merely help to set the context within which the statement about compliance operates. Logically, they predate it. I hope that that explanation will help the noble Baroness to understand how the draftsmen have crafted the Bill to do exactly what she would want it to do, as is often the case.
My Lords, I am grateful to the Minister. I accept that my amendments are defective and have put things in the wrong order. That does not mean that the government drafting is perfect—I hope that the parliamentary draftsmen will forgive me for saying that. The noble Baroness gave a long list of Acts which, I confess, I had not read. I shall tease my noble friends with regard to the Companies Act in respect of details that they might not have seen. The noble Baroness mentioned the Serious Organised Crime and Police Act. I suppose the fact that I did not notice “see” in that Bill provides grist to my elbow; I have always argued that we were mistaken to rush that Bill through during the “wash-up” period. I obviously did not read every word as perfectly as I should have done. Ah me! I shall try better in future. I shall wait and see. I beg leave to withdraw the amendment.
Amendment No. 40, as an amendment to Amendment No. 39, by leave, withdrawn.
[Amendment No. 41, as an amendment to Amendment No. 39, not moved.]
On Question, amendment agreed to.
42: After Clause 36, insert the following new Clause—
“Record of serious crime prevention orders
A full and detailed record shall be kept centrally of every serious crime prevention order that is made.”
The noble Lord said: My Lords, this follows a satisfactory correspondence with the noble Lord, Lord Bassam, in which he answered the questions that I raised in Committee as to how it would be possible for noble Lords to find out exactly how these orders had been used. I very much hope that the noble Lord will elaborate on what is proposed, but I seek in the amendment an undertaking that such information will be made available centrally—so that we will not be told that information is not held centrally, as I am told in Answers to some of my Written Questions—and that it will be detailed, so that when, for example, the noble Lord, Lord Thomas, wants to know to what extent the orders have been used in ways that concern him, he may hope to receive an answer. That would not involve disclosing the details of every order, but it should be possible to provide a digest, so that we would know whether or not the orders had been used in certain ways and whether to pursue such matters further if they were of concern to us. I beg to move.
My Lords, knowing the Government’s total, absolute and complete commitment to freedom of information—exemplified by their Freedom of Information Act and the way in which they have operated it ever since, and possibly by how they seek to amend it—I am sure that the noble Lord will be able to give a full, frank and welcoming response to my noble friend’s amendment. I look forward to hearing it.
My Lords, I shall certainly try to be frank, but not too full; I can cut the time that I need to detain your Lordships’ House on this matter by more than a fraction. I thank the noble Lord, Lord Lucas, for tabling the amendment and the earlier draft. I understand that at least part of the intention behind it was a concern to ensure that the orders were not used inappropriately; I certainly side with that. I hope that my noble friend Lady Scotland’s earlier comments about the way in which the process would work in terms of making an order provided additional reassurance on the point.
The High Court provides a more than adequate buffer against any attempt to use the orders inappropriately. However, as I said in my letter to the noble Lord on the subject, following discussion of a similar amendment in Committee we agreed that we needed to ensure that the orders were used and, more appropriately, managed in the most effective way. For example, we need to make absolutely certain that one hand knows exactly what the other is doing. Where SOCA or the Serious Fraud Office is contemplating seeking an order against the same person, they should of course be working closely together. Similarly, it will be very useful to know in several years’ time, when the orders have taken root, what innovative terms and approaches have been used by the courts and have worked best for one area of law enforcement, so that they can be used by others.
For that to happen, there will be a central recording of details of orders. However, we have been looking at exactly how that will be achieved and have not yet bottomed out the exact form in which the register will be undertaken. For example, we will need to consult the Information Commissioner further to ensure that all data protection issues are taken into consideration. No doubt we need to properly examine how freedom of information issues might be affected by that.
I hope that the noble Lord will accept that I have to resist the amendment, but will be reassured by what both the noble Baroness, Lady Scotland, and I have said in relation to our intention in this regard. I am more than willing to listen to any suggestions that he might have, now or later, on how the work can be taken forward. I acknowledge his interest and, moreover, his expertise in the area, and I am sure that we would greatly benefit from some further advice and consideration on his part. We are with him in spirit, and are trying to work out the precise mechanics. We shall gratefully receive any help that noble Lords, including the noble Lord, Lord Lucas, can give us on the matter.
My Lords, I am grateful for that reply. I look forward to taking the opportunity that the Minister has opened up to me, but I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 40 [Encouraging or assisting an offence believing it will be committed]:
43: Clause 40, page 25, line 18, at end insert “; and
(c) his act was unreasonable”
The noble Lord said: My Lords, we are back in the field of reverse burdens of proof, which has exercised the human rights court on many occasions. These are matters that we raised in Committee, but I am grateful to Liberty for focusing our minds on the issues again. The amendments would require the prosecution to establish that a defendant’s act was unreasonable in order to convict him of an offence under Clauses 40 or 41. We also support Amendment No. 63, which would remove Clause 46, under which a person has a defence if he can prove in relation to Clauses 40 and 41 that he has acted reasonably.
In an article in the Criminal Law Review in December 2006 entitled “Inchoate Liability for Assisting and Encouraging Crime—the Law Commission Report”, GR Sullivan said that,
“the belief differs from the intent offence in that it will sweep up persons who have to deviate from normally lawful routines to avoid criminal liability: taxi drivers, fertiliser sellers, weighbridge operators, generous hosts, shopkeepers and so on. If they carry on providing their services or ministrations, knowing or believing that they will assist a crime, they will commit the belief offence. The offence will enlist a mixed cast: there will be sheep and goats”.
The Government themselves acknowledged that the offences in Clauses 40 and 41 would, in principle, inappropriately cover some kinds of activity, giving the examples:
“D, a motorist, changes motorway lanes to allow a forthcoming motorist (P) to overtake, even though D knows that P is speeding; D, a reclusive householder, bars his front door to a man trying to get into his house to escape from a prospective assailant; D, a member of a DIY shop’s checkout staff”—
“believes the man (P) purchasing spray paint will use it to cause criminal damage”.
In each case, the defendant has done nothing criminal himself but believes that what he is doing, which is perfectly lawful, may assist someone in committing an offence—pulling from the outside lane of the motorway into the centre to allow a speeding motorist to go by, and so on.
In its 2006 report, the Law Commission also highlighted how the belief offences could sweep up justified behaviour. In paragraph 3.45, it said that it recognised that,
“extending liability beyond cases where it is D’s intention that the conduct element of the principal offence should be committed, raises the spectre of”,
“incurring criminal liability for ostensibly lawful acts. A protestor may believe that his or her lawful protest will encourage the commission of retaliatory criminal conduct by others”.
You might take for an example someone waving a placard in front of a crowd that he knows will react to it and cause a riot. The Law Commission continued:
“Authors, journalists and publishers may believe that material which highlights what some would consider to be cruel or barbaric practices will encourage others to commit offences against those carrying out the practices”.
An example would be writing a newspaper article highlighting cruelty to foxes, or something of that nature.
Where an action is entirely reasonable and is not intended to encourage or assist in the commission of an offence by another person, we believe that it should not be criminalised. That much is uncontroversial. The question is who should bear the burden of showing that the actions in question were reasonable. At present, the offences in Clauses 40 and 41 cast the net very wide, catching the kinds of behaviour set out above. Under the Bill, the Government expect the defendant to do the work of using the vaguely worded defence in Clause 46 to try to wriggle out of the net. He is the person who has to establish that his actions were reasonable in the circumstances and so should not lead to a criminal conviction. That could mean that the motorist who lets the speeding driver go by, the reclusive householder who bars his front door to a man trying to get into his house to escape from an assailant or the person on the check-out staff might be subject to the stress of being prosecuted and having to defend themselves in court.
Secondly, establishing the reasonableness of one’s actions is a very high hurdle to cross. The defendant has to persuade the jury that his actions were reasonable and that they should not carry criminal liability. I referred earlier to the difficulty of proving the inherently uncertain concept of acting reasonably. We, together with Liberty, believe that the burden of showing the unreasonableness of the defendant’s actions should be borne by the prosecution and that the belief offences in the Bill should cover only actions that are proved by the prosecution to be unreasonable in the circumstances.
In response to this argument, the noble Baroness, Lady Scotland, said that only the defendant is in a position to explain why he acted as he did. She said:
“The particular circumstances that justify their behaviour will be peculiarly within their own knowledge. As in all cases in which the burden of proving a defence is on the defendant, the standard of proof is the balance of probabilities”.—[Official Report, 21/3/07; col. 1245.]
We do not agree with that argument. The matter that has to be established by way of a defence is that the actions in question are “reasonable in the circumstances”—not reasonable as the defendant considers or believes them to be, but objectively reasonable. The question is: would the average person in the street consider the actions reasonable? The defendant’s state of mind is not determinative of this in any way. Objective reasonableness—having to prove when you are a defendant in court that you have objectively acted in a reasonable way—is not a fair burden to impose on a person facing the sort of offences suggested against him. I beg to move.
My Lords, I know that the noble Lord, Lord Thomas of Gresford, has been concerned about this issue but we do not think that that concern is merited. These amendments have been proposed because the scope of the offences committed with belief is potentially wide and could cover activities that are considered to be everyday. The examples given during our Committee debate, in the Law Commission report and, indeed, repeated today of the motorist who moves over to let a speeding driver pass or a salesperson who sells spray paint that he believes will be used to commit criminal damage may be technically possible but, I believe, in the event are highly unlikely to be proceeded with.
As I said in Committee, I agree entirely that these offences should not criminalise conduct that is considered reasonable. However, the Government agree with the Law Commission that it would be better to rely on a defence of acting reasonably in the circumstances, which is included in Clause 46.
It is important to make it clear that the offences do not simply apply where a person carries out an act capable of encouraging or assisting an offence that he believes will happen. The prosecution must also show some awareness on D’s part—belief or recklessness—that the principal offender will operate with the necessary fault element for the principal offence or with any necessary circumstances or consequences. If we accept that perhaps this element would be made out, then the question is: should the prosecution have to prove that D’s behaviour was unreasonable, as would be the case under these amendments, or should D have to prove that his behaviour was reasonable, as would be the case under the Bill?
We believe that it is sensible for the burden to fall on the defendant. As I said in Committee, the prosecution will already have proved that the defendant has done something to assist or encourage an offence, believing that it will be committed. The burden is on the defendant to prove that it was reasonable for him to act as he did in the circumstances that he knew or believed to exist. As I hope I explained, in both cases, only the defendant will be in a position to explain why he acted as he did and why it was reasonable for him to do so. The particular circumstances justifying his behaviour will be peculiarly within his own knowledge. As with all cases where the burden of proof is on the defendant, the standard of proof will be the balance of probabilities. We consider that it is fair and reasonable to impose a legal burden in the context of the reasonableness defence.
The burden of proving all the elements of the offence falls on the Crown, whereas the defence turns on facts which are peculiarly within the knowledge of the defendant and which therefore may well be difficult for the prosecution to disprove. It is well established in case law that there are situations in which it is fair to put a legal burden on defendants where these criteria are taken into account. We consider that this is such a situation and I therefore ask the noble Lord to withdraw his amendment.
My Lords, if the prosecution proves the ingredients of the offence as it stands, the defendant will be found guilty, even though he personally believed at all times that he was acting reasonably. Under Clause 46, his subjective view is neither here nor there; he needs to go beyond proving that he thought that what he was doing was perfectly reasonable. In the eyes of the judge or jury trying him, he has to establish that it was objectively reasonable for him to act in the way that he did. We are imposing a significant criminal liability—
My Lords, it is important for me to clarify how we see this matter. As the noble Lord knows, ultimately the jury will have to determine this and it will be for the jury to decide whether it was reasonable for the defendant to have acted as he did in the circumstances as he believed them to be. That is evidence on which the defendant will be peculiarly advantaged and he will be able to give that evidence to the jury, so I do not think that the fear highlighted by the noble Lord is a real one.
My Lords, with the greatest respect, that indicates the problem. I hope that I am not baffling your Lordships by what I am saying. Clause 46 states:
“A person is not guilty of an offence under section 40 or 41 if he proves—
(a) that he believed certain circumstances to exist;
(b) that his belief was reasonable; and
(c) that it was reasonable for him to act as he did in the circumstances as he believed them to be”.
It follows that the question is not what he thought was reasonable but what was objectively reasonable in the circumstances as he believed them to be. This is not subjective; it is objective, and it is objectionable. However, I shall leave it to the courts to determine at some future date. I am sure that there will be considerable litigation—I never object to that. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 41 [Encouraging or assisting offences believing one or more will be committed]:
[Amendment No. 44 not moved.]
45: Clause 41, page 25, line 31, leave out “charge or”
The noble Baroness said: My Lords, Amendments Nos. 45, 46, 49, 50, 64, 65 and 67 are minor. They remove the references to a “charge” from the offence in Clause 41; that is, encouraging or assisting a number of offences believing one or more will happen but without being sure which. Clause 41(3)(a) sets out that, where a person is charged with an offence under that clause, the charge or indictment must specify the offences that the prosecution alleges D believed P would commit. Using the example I gave in Committee, if the prosecution alleges that D provided a flat to a paedophile believing that any one of rape, murder or kidnap would be committed but he was not sure which, the charge or indictment would have to specify rape, murder and kidnap. Clause 43(5) sets out that “charge” refers to a “written charge” under Section 29 of the Criminal Justice Act 2003. That is a method by which a public prosecutor can initiate criminal proceedings.
We have considered the operation of this clause and do not believe that it is necessary to refer to a charge in Clause 41, as offences under that clause are triable only on indictment, and an indictment will exist in every case. As it is already provided that the indictment must specify the offences it is alleged D encouraged or assisted, we believe that that is sufficient. Amendment No. 45 therefore removes the words “charge or” from Clause 41(3)(a). Amendment No. 50 removes the definition in Clause 43(5). Amendments Nos. 46, 49, 64, 65 and 67 remove all other references to “charge or”. I beg to move.
On Question, amendment agreed to.
46: Clause 41, page 25, line 37, leave out “charge or”
On Question, amendment agreed to.
Clause 42 [Proving an offence under this Part]:
47: Clause 42, page 26, line 36, leave out subsection (6)
The noble Lord said: My Lords, I shall also speak to Amendment No. 48. This is the first time I have spoken on Part 2. I thank the noble Baroness for her letters to my noble friend Lady Anelay on Part 2. One was dated 24 April; the other, in a manner that one gets rather used to with an office as efficient as the Home Office, was undated but sent, I believe, on 17 April. I will refer to it as the long letter, as it is six pages long. A third letter, which opens “Dear colleague”, dated 20 April, also dealt with amendments to Part 2. The Minister will remember that my noble friend Lady Anelay and I met her and her officials to discuss some of these issues. We are broadly content on these matters but I would be grateful for a response on a few further points, in particular so that the Minister can have them recorded in the Official Report.
I wish to make a further point about Home Office correspondence, including letters to my noble friends Lady Anelay and Lady Noakes, one of which is dated today or perhaps yesterday. The Home Office, in its kindness, sent that letter by e-mail, allowing us to print it off. I do not know what it is about Home Office systems, but for some reason its use of Adobe for sending e-mail attachments means that it takes for ever to print them. Perhaps the Minister could ask her officials to look at that.
Amendment No. 47, which was tabled as Amendment No. 96H in Committee, would remove subsection (6) of Clause 42, thereby removing the assumption that D, or the defendant, is able to do the act in question. The Minister stated in her letter that relying on Clause 58(1) as the test for deciding whether an individual is capable of encouraging or assisting, as I had suggested, would cover all the relevant avenues insufficiently. I am content with her response on that, which is covered in the first part of her letter.
Amendment No. 48, which was Amendment No. 98 in Committee, would delete subsection (8) in Clause 42, removing the possibility of an act constituting:
“(a) a failure to act;
(b) the continuation of an act that has already begun; [and]
(c) an attempt to do an act”.
Like Amendment No. 47, this remains a probing amendment. The Minister will remember that in Committee my noble friend asked the noble Lord, Lord Bassam, whether Clause 42 broke the link between prompt and action. For example, were a preacher to encourage another to blow up Parliament but did not commit the offence himself, would the Bill allow his prosecution? The Minister explained in her letter that that was not the case under Clause 42(8) but that the preacher could be prosecuted under the offence in Clause 39 regardless of whether an action followed.
Although I am broadly content with that response, I should be grateful if the Minister could respond to two remaining doubts. First, were a preacher to publish a video encouraging one or a number of persons to blow up Parliament on the basis of religious fanaticism or whatever, at what point would that encouragement cease to be classified as encouragement of racial hatred and begin to be classified as straightforward encouragement? Would the two offences run parallel? Secondly, my noble friend asked the Minister whether the Government had estimated how many people would fall foul of this provision. If the Minister has an answer, I should be grateful if she could give it to the House. I beg to move.
My Lords, I thank the noble Lord for indicating kindly that he broadly supports our position. I am also grateful for his references to the letter. I am conscious that its contents have not been read on to the record, so I shall outline it, with some of the examples given, to clarify why noble Lords opposite are persuaded that what we now have is satisfactory.
As noble Lords know, Clause 42 sets out how the offences in this part of the Bill must be proved. Subsection (5) sets out that D can be convicted if he believed, or was reckless as to whether, P would operate with the required fault element for the anticipated principal offence, and that it is sufficient if P does not have the fault necessary but D does. That would ensure that D could not escape liability by encouraging or assisting an offence by an innocent agent. Subsection (6) of Clause 42, which Amendment No. 47 would remove, provides that where the prosecution seeks to prove a case on that basis, there will be an assumption that D is physically able to do P’s act. As we have discussed before, that would cover a scenario where D, a woman, encourages P, a man, to have sexual intercourse with V. D tells P that V will resist and say to him that she does not want to but that it is all part of a game. P reasonably believes that V would consent to sexual intercourse with him, so he would not be guilty of rape. However, these provisions ensure that D could be found guilty of encouraging and assisting rape, as she intends rape to happen despite the fact that she would not be physically capable of raping V.
In Committee, the noble Baroness, Lady Anelay, queried why this subsection is necessary and wondered whether it would be preferable to rely on Clause 58(1), which was Clause 15 of the Law Commission’s draft Bill, to which the noble Lord, Lord Henley, referred. It sets out that the term,
“being capable of encouraging or assisting”,
can include references to doing so by threatening or putting pressure on another person to commit the offence.
I am also grateful to the noble Lord, Lord Henley, for indicating that he agrees with us that relying on Clause 58(1) would not adequately cover this situation. The Law Commission also took that view. Its draft Bill included a version of Clause 58(1)—Clause 15 of the draft Bill to which the noble Baroness referred—and also Clause 42(6), which was Clause 11 of the draft Bill, because a person may not use threats or pressure in this situation. In the example I gave above, D has simply not told P the truth when she tells him that V enjoys pretending not to consent to sexual intercourse. D has not used threats or pressure. The Government therefore agree with the Law Commission that it is not sufficient to rely on Clause 58(1) to cover this scenario. It is for that reason that I must resist Amendment No. 47. I am grateful for the indication that noble Lords opposite respectfully agree.
Amendment No. 48 also amends Clause 42 and raises another issue on which there was confusion in Committee. Amendment No. 48 removes Clause 42(8) which sets out what is meant by the phrase “doing of an act” and includes a failure to act. It caused some confusion in our debate. It refers to an act by P in which D could be guilty of encouraging and assisting P in a failure to act where that failure to act would constitute the conduct element of an offence. For example, it would cover D who encourages P, his wife, to starve their child to death. So it covers an act of omission. D could be found guilty of encouraging and assisting murder. It is therefore not correct to talk of P “doing an act”. She has not done an act; rather she has failed to do an act. That failure constitutes the offence. This subsection does not impose liability for omissions. That is dealt with in Clause 58 and applies only where D has a duty to act but fails to take reasonable steps to perform that duty, intending or believing that he will assist an offence.
The noble Lord, Lord Dholakia, asked in a previous discussion whether the provision would impose liability for failing to stop a crime in progress or failing to help someone who has been attacked. I can confirm that it would not.
The noble Baroness, Lady Anelay, queried whether this subsection breaks the link between the “prompt” and the “action”—the point on which the noble Lord, Lord Henley, wanted an answer. She gave the example of prosecuting a preacher who released a video inciting others to commit offences even where no such video was found in the possession of the bomber who was arrested. That is not the effect of this clause. In that case, the preacher would not be prosecuted for encouraging the attempted bombing. However, it is important to make clear that there does not need to be a link between an act of encouragement or assistance by D and any eventual offence for liability for any of these offences to arise. The reason is that these offences are inchoate and impose liability regardless of any offence or harm resulting from D’s act. So if a preacher intends to incite a specific offence by releasing a video, he could be prosecuted on the offence in Clause 39 regardless of whether anyone has actually been encouraged or assisted by it. If he is inciting offences in general, he could be prosecuted only on an offence under Clause 41 as he cannot be linked to a specific offence. Even then, a prosecution under Clause 41 would be possible only where the prosecution was able to identify a number of offences that he believed might have been committed as a result.
With that rather long answer, I hope that I have satisfactorily clarified the purpose of these subsections and that noble Lords will agree that the provisions are necessary. I particularly wanted to accomplish that because we have discussed this matter in some detail and for some time. It is not an easy matter. I hope that this explanation will enable those who try to define why we have done this to understand better why we have done so. I hope that that answers all the questions that the noble Lord raised with me.
My Lords, the Minister said that this is not easy, and she gave us a long and detailed explanation of what might be a rather fanciful case. It almost took me back to the days when I was doing my Bar exams. The Minister will probably remember a similar case involving either rape or burglary where the chap climbed up a ladder naked except for his socks. I think the case was called Thomas. I forget the outcome, but I am sure that law students will have just as much fun with it in the future. If the noble Baroness is looking for another job in the months to come, a career lecturing in law might be for her. She can explain the possibilities of these new clauses in due course.
Seriously, however, I thank the Minister for the explanation. I think that I have got it and I am grateful for that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 48 not moved.]
Clause 43 [Proving an offence under section 41]:
49: Clause 43, page 27, line 16, leave out “charge or”
50: Clause 43, page 27, line 20, leave out subsection (5)
On Question, amendments agreed to.