Serious Crime Bill [HL]

moved Amendment No. 1: 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 assistedin 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 committeehad 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 Governmenthave 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 followfrom 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 evidenceto 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 thesethe 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 relaxingthe current prohibition on the admissibility of interceptmaterial, 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.