Serious Crime Bill [HL]

moved Amendment No. 11: 11: Clause 2, page 2, line 23, after ““has”” insert ““conducted himself in a way that was unreasonable in the circumstances and, by so doing, has”” The noble Lord said: When the Minister says—as she did in the previous debate—that this Government act on intelligence-led information, then we all reach for our guns and invade another country. I do not think that her claim to be more liberal in this Bill stands examination for one minute. We need to go through the clauses that she has just referred to in some detail. Clause 1(1) says: "““The High Court in England and Wales may make an order if—""(a) it is satisfied that a person has been involved in serious crime””." Clause 2(1)(a) defines what is meant by ““involved in serious crime””. It is if a person, "““has committed a serious offence””," and then, in Clause 2(1)(b), "““has facilitated the commission by another person of a serious offence””," or, in Clause 2(1)(c), "““has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence””." Clause 4(2) makes it perfectly clear that, when the court is, "““deciding … whether a person … facilitates the commission by another person””," or, in subsection (3), has been conducting himself in such a way as is likely, "““to facilitate the commission by himself or another person of a serious offence””," first, the burden is on the respondent to prove that what he has done is reasonable in all the circumstances and, secondly, the court must ignore his intentions or any other aspect of his mental state at the time. So he may be completely innocent; he may not appreciate for a moment that he is facilitating another person to commit a crime or is conducting himself in such a way as is likely to do that. He may have no concept of that at all. But unless the respondent can prove that he has acted reasonably, he is liable to a serious crime prevention order. As we discussed earlier, that order can amount to a serious restriction on his liberty, the use of his assets, his travel or his relationships with other people—even though he does not appreciate for a moment that he is facilitating another person to commit a crime. When all the verbiage is taken away, that is the real structure of this Bill; an innocent person can be subjected to all these restraints unless he can prove that what he was doing was reasonable. Amendment No. 11 and all the others in the group, which I will not number, are designed to, at the very least, reverse that burden of proof so that an innocent person cannot be made the subject of an order unless the prosecution—that is, the person bringing him before the court—can show that he has, "““conducted himself in a way that was unreasonable in the circumstances””." In other words, instead of the respondent proving that he has acted reasonably, the prosecution must establish that he has been acting unreasonably. It is not appropriate to place a burden on a defendant with an innocent mind to prove something in order to avoid the imposition of such a draconian order. The law should punish only unreasonable actions; it should be for the state to bear the burden of establishing that a person’s actions are unreasonable. The force behind the submission that my noble friend Lord Goodhart made in the previous debate is that he requires the prosecution to prove a criminal offence to the criminal standard. That is what is liberal about his proposal and what is illiberal about the Government’s proposals in the Bill. The amendments would require the state to show that the actions of the defendant were ““unreasonable in the circumstances””; only then would it be reasonable for the defendant to be subject to a serious crime prevention order because of those actions. I beg to move.