Serious Crime Bill [HL]

I resist these amendments and I have already explored some of the reasons why. Amendment No. 11 and the other amendments in this grouping would change each reference in the Bill to ““facilitation”” or ““conduct that was likely to facilitate”” to include a reference to unreasonableness on the part of the proposed subject at the time of the behaviour. I agree completely with the sentiment that if the proposed subject of the order has acted reasonably—to come back to the point made by the noble Lord, Lord Lucas—but none the less his actions have facilitated serious crime, or he has behaved in a way that was likely to facilitate serious crime, he should not be made subject to an order. There is no dispute between us on that. The Bill already provides for precisely this. Clause 4(2)(a) and 4(3)(a) state that any act that the proposed subject of an order can show was reasonable in the circumstances must be ignored by the court and so cannot form the basis for an order. These amendments would shift the burden of proving reasonableness from the proposed subject of the order to the applicant for the order. We believe that it is appropriate for the burden to fall to the proposed subject, because the particular reasons for his actions are likely to be within his particular knowledge. Amendments Nos. 41 and 44 are consequential, as they would remove the existing reference to reasonableness in Clause 4. As a result, it would not be appropriate to accept them. However, I remind noble Lords that in civil proceedings it remains the case that he who asserts must prove; the applicant for these orders at the end of the case will have to have demonstrated to the court’s satisfaction, taking into account the two limbs that we explored earlier and the nature of the judgment in McCann, that they have discharged that responsibility. That puts a heavy burden on the applicant to satisfy a court and we think that it must be right that the people who will have the particular knowledge of the reasons why they did or did not do what it was alleged they did or did not do should be the ones to tell the court about it, as opposed to the applicant for the order. That is a reasonable and practicable approach. Therefore, I invite the noble Lord to withdraw his amendment.