Serious Crime Bill [HL]

We would not have to go to Strasbourg. We on these Benches opposed ASBOs when they were introduced on the basis that to use a civil process in the way that the Government proposed would inevitably be a breach of convention rights. That was the decision of the House of Lords in McCann; the Lords decided that, unless there was read into the legislation a criminal standard of proof—essentially, we are dealing with criminal behaviour and criminal penalties—the Act as it was passed in relation to ASBOs could not stand. Here we have gone a step further. We are not dealing with anti-social behaviour; we are dealing with serious crime. The penalties to be imposed by the orders are house arrest, the freezing of assets—the answer to the noble Lord who spoke from the Conservative Benches a moment ago is that an order could contain such a provision—and a restriction on liberty, which is completely unacceptable unless there is a fair trial under Article 6.1. The essential point is that there be in place the sort of safeguards that exist in a criminal trial. Those safeguards are, first, clarity: a person should know what he is charged with. The second safeguard is that what he is charged with has to be proved by the prosecution beyond reasonable doubt; the Minister has conceded that the orders can be made only if the activity complained of was proved beyond reasonable doubt. Thirdly, it is necessary in a criminal trial to produce evidence on a proper basis—not rumour, tittle-tattle or hearsay, but direct evidence. Fourthly, if the prosecuting side fails to reveal its hand and to disclose anything that might impinge on what it is doing, that is an abuse of process. All those safeguards are in place under the concept of a fair trial in Article 6.1. The Government cannot hide by saying that this is a civil process. It is not a civil process. It imposes serious restrictions on liberty and that is the basis of the amendments that we have tabled. The answer to the question of the noble Viscount, Lord Bledisloe, of what is left of Part 1 if the amendments are passed, is nothing—and good riddance.