Serious Crime Bill [HL]

In one sense, we are dealing with both groups. We are dealing with groups of criminals who have previously been convicted of offences and whom we wish to prevent adopting a similar modus operandi and committing future crimes. We are also dealing with individuals—quite often third-party—used by those criminals to undertake legitimate activity for an iniquitous purpose. For example, there may be an arrangement whereby a criminal buys vehicles with false bottoms in which to transport people and/or drugs. The third party involved never sees the criminal or has an explicit conversation with that individual, but it is clear that the use to which the vehicles are being put, such as people-trafficking or drugs, is iniquitous. At present, there is a difficulty because such third parties will seek to rely on the fact that the activity is legal, commercial and cannot be interfered with. The orders would enable us to prevent that continuance in order to prevent serious crime being facilitated. That is why it is important. I see the noble Lord, Lord Goodhart, getting to his feet but before he does I should like to come to the point made by the noble Lord, Lord Dholakia. I have tried for a number of minutes to get to the noble Lord’s question and to that of the noble and learned Lord, Lord Lloyd. If the Committee will indulge me, it might be easier if I deal with those before the noble Lord, Lord Goodhart, gets to his feet to interrogate on a further point. The first limb of the test for obtaining an order is whether the person has been involved in serious crime. The burden of proof is on the relevant applicant authority. The standard of proof will be the civil standard but, given the seriousness of the conduct alleged, following McCann, the standard the court will expect to be reached is likely to be close to ““beyond reasonable doubt””. The second limb of the test for obtaining an order—this is a two-limbed clause—is whether the order will protect the public by preventing, restricting or disrupting the person’s involvement in serious crime. It is not a question of fact but one of judgment for the court. As a consequence, there is no burden of proof or any corresponding standard of proof. It is for the potential subject of the order—the respondent—to prove. The burden is on the respondent 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, and the standard of proof will be the civil one. As the burden is on the respondent, we would expect the court to apply the standard of ““on the balance of probabilities””. There are parallels here with a criminal prosecution. In a criminal prosecution the burden of proving the offence is on the prosecution and the standard is ““beyond reasonable doubt””. If the defendant raises a defence, it will usually be for him to prove the defence but the standard of proof would be lower than for the prosecution; namely, ““on the balance of probabilities””. However, although in the context of burden and standard of proof there are parallels with a criminal prosecution, there are still important differences that mean that there are advantages to obtaining a civil order over a criminal prosecution. The two limbs would act together. We therefore say that this is a civil order; it is a preventative order. You still need McCann and you still need to understand how the two fit together—but within the civil not the criminal framework.