Serious Crime Bill [HL]

My Lords, I thankthe noble Baroness, Lady Anelay, for the way she expressed her cautious support for these amendments. I endorse what she said about them. I concur with her about the situation in which we find ourselves. I say to the noble Baroness, Lady Carnegy of Lour, that she is right to emphasise the need to protect the individual and society from the pernicious impact of serious and organised crime. I hope that, from the way in which the Government have presented the Bill, the House accepts that we have not rushed to do this, buthave done it in a proportionate and balanced way. I thank noble Lords who not only participated in the meetings but also participated in Committee in order to fashion a way forward that would be acceptableto all. The noble Earl, Lord Onslow, must forgive me if I smile at him. He will know that it is a habit I have fallen into over the past 10 years. It is not because I think that the issues are funny, but because I cannot help but be affected by the vim with which the noble Earl presents his case. It in no way detracts from it. I want to reassure the noble Baroness, Lady Anelay. I agree with her that it is of critical importance that we do everything possible to catch, fairly prosecute, convict and apply the appropriate sentences to those who engage in this extremely serious type of offending. That will always be our first port of call. I also reassure her that we intend to target the use of these orders to interdict serious crime in the most effective manner. On the issues that arise in relation to the standard of proof, I say to the noble Lords, Lord Dholakia and Lord Thomas of Gresford, that I understand their anxiety. It is for that reason that when we debatedthis issue in Committee I referred on a number of occasions to the importance of the McCann judgment. The noble and learned Lord, Lord Lloyd, is right to identify the comments made by the noble and learned Lord, Lord Hope, and others in that judgment. He will know that in so doing they referred to the sliding scale and set out how, when dealing with matters of such importance as anti-social behaviour orders, the court should view the standard of proof. I do not intend to reiterate all the arguments that were made in Committee because they still hold true. I am very grateful for the fact that, in opening his remarks on this amendment, the noble Lord, Lord Dholakia, put the Government’s position very clearly and fairly. Amendments Nos. 1 and 2 change from the civil standard to the criminal standard of beyond reasonable doubt the standard of proof to be discharged in relation to the first limb of the test in Clause 1. Introducing such a criminal concept would be inappropriate in the context of the civil order. The noble Lord, Lord Thomas of Gresford, is right to say that we see these as preventive orders, not punitive ones. Amendment No. 36A deletes Clause 33(2), which provides that the applicable standard of proof before the High Court is the civil standard. We have included this statement to provide clarity on the standard that is to be applied by the High Court. We discussed at some length the case of McCann and the impact that it will have on proceedings in relation to these orders. We believe, as the House of Lords made clear in the case of McCann, that the civil standardof proof is flexible and has a sliding scale from onthe balance of probabilities at the lowest to beyond reasonable doubt at the highest. In case anyone misunderstands, I believe that the House should be confident that McCann will apply to the first limb. I also thank the noble and learned Lord, Lord Lloyd, for accepting, as I do, that in relation to the second limb it would be impossible to apply the standard of ““beyond reasonable doubt”” because that is a matter of judgment. Both the first and second limbs need to be proven. If we have a civil standard, the court will be able to apply McCann in relation to the first limb but the balance of probabilities will be applied in relation to the second limb in the usual way. As I have said before, case law shows that the court is likely to require a high standard close to ““beyond reasonable doubt”” in relation to the first limb of the test for obtaining an order, and therefore we believe that the amendments are inappropriate and unnecessary. It may be helpful at this stage if I outline the procedure that I believe is likely to be adopted before these orders are made. I know that it is more usualto take such an approach in Committee but I shall explain why I think it might be helpful. Many questions have been asked about how the orders will come about, what evidence will be called in support and what procedural rules will apply. That confusion has caused a great deal of concern and contention, and a number of people have invited me to set out what the procedure is likely to look like. Therefore, with the leave of the House, in order to frame our subsequent discussions it may be helpful, unless anyone indicates that it is not, if I set that out now. The first step will be for one of the relevant applicant authorities listed in Clause 8 to decide whether to make an application for an order. They will make the decision on the basis of advice fromlaw enforcement, such as the police, Her Majesty’s Revenue and Customs and the Serious Organised Crime Agency, and on the basis of their own experience of whether the case is suitable for an order. Guidance will be issued to the relevant applicant authorities to assist them in this work. Paragraph 4of Schedule 2 specifically provides that the Codefor Crown Prosecutors can include guidance on the general principles to be applied by Crown prosecutors in relation to serious crime prevention order proceedings. Paragraphs 9 and 18 of Schedule 2 make corresponding provision for the Director of Revenue and Customs Prosecutions and the Director of Public Prosecutions for Northern Ireland respectively. There is no corresponding provision in relation to the director of the Serious Fraud Office because he does not have a statutory power to issue guidance to his staff, but he will issue non-statutory guidance. Furthermore, the functions conferred on the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the director of the Serious Fraud Office must be expressly delegated to their staff. We discussed that in Committee. This will ensure that only those with suitable training and expertise will deal with serious crime preventionorder cases. Once the decision to make an application hasbeen reached, the relevant applicant authority will make an application to the High Court. This will be by way of an application notice under Part 23 of the Civil Procedure Rules. Those rules will apply toall applications for orders in the High Court. They contain extensive and detailed guidance for thecourt on the conduct of proceedings for court orders. The rules will apply to applications for seriouscrime prevention orders, as they apply to any other application for a court order. In particular, the over-riding objective will apply: the court must deal with all cases justly. As I have explained before, as an additional safeguard in relation to serious crime prevention orders, the applicant will be required to include information in the application notice about the possible impact of the order on third parties. This will help to ensure that the court has all the relevant information when making its decision and determining what is reasonable and proportionate. The application notice will be served on the respondent and a hearing date will be set. At the hearing, the applicant authority will present its case for the order being made and the respondent will be able to respond to that case. The applicant will need to provide the court with evidence to persuade the court that the test for making an order has been met and that the terms of the order are appropriate. It is hard to predict what evidence might be needed, but it is likely to include testimony from law enforcement officers, in the form of either oral evidence or a witness statement and documentary evidence, such as proof of any convictions that are relied on. In addition, Clause 9 of the Bill makes express provision for third parties to make representations to the court to ensure that their rights are taken into account. Having heard both sides of the case, and any third parties, the court will proceed to decide whether to make an order. The court is a public authority within the meaning of the Human Rights Act 1998,which means that it must act compatibly with the convention rights. So the concerns of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, about the Human Rights Act can all be dealt with by the High Court at an appropriately high standard. Asa consequence, any order that it imposes must be compatible with the convention rights. An order could not include a requirement for house arrest, because such a measure would be incompatible with Article 5 of the European Convention on Human Rights. If a proposed obligation engages a person’s rights under Articles 8, 10 or 11, the court would have to be satisfied that the interference was necessary and proportionate. If an order is made, Clause 10 of the Bill ensures that it will take effect only if the respondent was represented at the hearing or if he is served witha notice in person or by recorded delivery. The respondent may appeal to the Court of Appeal against the High Court’s decision, as set out in Section 16 of the Supreme Court Act 1981 or, as the case may be, Section 35 of the Judicature (Northern Ireland) Act 1978. Clause 24 of the Bill also provides rights for third parties to appeal. Once any order has been made, an application for variation or discharge can be made by the subject of the order, the relevant applicant authority or a third party. That will ensure that the necessity of the order can be kept under review. I have focused on the process in the High Court because that is where we expect most orders to be dealt with. However, the same principles will apply when the Crown Court is asked to make an order. The only significant differences are, first, that the Crown Court will not consider whether the person has been involved in serious crime, because he will have been convicted of an offence, and, secondly, that special rules of court will need to be made, because the Civil Procedure Rules do not apply automatically in the Crown Court. It is that normal civil process, as set out in the Civil Procedure Rules, together with the enhanced safeguards that we have included, such as the provisions relating to third parties, which will ensure that the orders are reasonable, proportionate and used appropriately. I certainly hope that the noble Earl, Lord Onslow, will agree that that is all compatible with what we would like to see in our good British courts. It does not really give rise to alarm or concern that we shall go off on an illiberal frolic that would enable us to interfere improperly with the rights of our citizens.