Serious Crime Bill [HL]

My Lords, in Committee, the noble and learned Lord, Lord Mayhew, who I am glad to see is in his place, described the amendment as being of great importance, and he was surely right. It is important because a person should not be subject to the prohibitions and restrictions on their personal freedom which are set out in Clause 5, unless the case against them is established on a criminal standardof proof. I listened very carefully to the Minister’s reply in Committee and I have read it in Hansard. She made two main points; first, that in civil cases, the more serious the allegation, the higher the standard of proof. As a general statement, that is true. She said that the civil standard would suffice here because it can come very close to the criminal standard—so close as to be virtually identical. But, with great respect, that argument will not do. This very point was decided unanimously by the House of Lordsin the case of McCann. It concerned an ASBO. The House of Lords did not say that in an ASBO case the standard of proof came very close to the criminal standard of proof or was virtually identical to it; the House of Lords said that it was the criminal standard of proof. That is the purpose of the amendment. The Minister invited me to read again the McCann case lest I had misunderstood it. I have done so, but I repeat what the noble and learned Lord, Lord Hope, said in the case at page 825, 2003 1 Appeal Cases: "““Given the seriousness of the matter, the court should be satisfied to the criminal standard””." The noble and learned Lord, Lord Steyn, said atpage 812 of that report that magistrates, "““must in all cases … apply the criminal standard””." That could hardly be clearer. Although the Minister’s arguments are often very plausible, she cannot plausibly argue that the standard of proof should be less in serious crime cases than in ASBOs, nor surely can she argue that we should depart from the law so recently laid down unanimously by this Housein McCann. I suggest with diffidence that it is sometimes helpful in legislation to call a spade a spade. If the standard of proof is going to be the criminal standard, as it should be, let us call it just that. The Minister’s second argument in Committee was that there are two separate stages under Clause 1. At stage 1, the court must be satisfied that the person is involved in crime; at stage 2, the court must have reasonable grounds for making the order. She is right: there are two separate stages. As she pointed out, stage 2 involves a question of judgment and it does not make sense, when one is concerned with a question of judgment, to talk about a standard of proof, whether civil or criminal. I agree. However, the amendment does not touch on stage 2; it touches only on stage 1. It is all the more important that, at stage 1, the criminal standard of proof should be applied because of the extraordinary width of the definition of being involved in serious crime contained inClause 2(1)(c). I have never seen anything like that provision in a criminal or quasi-criminal statute. I am very doubtful whether it would the pass the test of legal certainty. But no amendment to Clause 2(1)(c) is proposed, so I say no more about it. On the question now before the House, I submit that the casemade out for the criminal standard of proof is overwhelming.