Serious Crime Bill [HL]

My Lords, the amendments would require the applicant authorities to prove something of which they can only ever have a limited knowledge or ability to adduce evidence. The Bill provides that, when the court is deciding whether a person has acted in a way that facilitated or was likely to facilitate a serious crime, it must ignore any actions that the proposed subject of an order can prove were ““reasonable in the circumstances””. An order cannot be imposed on the basis of such reasonable actions. To go back to my earlier comments on process, and as a result of our earlier discussion on this point, I would like to make clear what happens to the burden here. As I noted in relation to the first limb of the test in Clause 1, it is for the relevant applicant authorityto prove that a person has been involved in serious crime. The standard of proof will be the civil standard but, as I hope I have made clear, given the seriousness of the conduct alleged, the standard that the court will expect to be reached is likely to be very close to ““beyond reasonable doubt””. It is then for the potential subject of the order to assert in response, and then to prove, that his actions were reasonable and should not form part of the court’s decision on whether his actions facilitated or were likely to facilitate a serious offence. The standard of proof here will also be the civil standard but—this is a good example of the flexibility to which I have referred previously—because the burden is on the respondent, we would expect the court to apply the lower standard of ““on the balance of probabilities””. That approach strikes an appropriate balance. The respondent will always be in a far better positionto know the full circumstances of his actions and whether or not they were reasonable. To expect the applicant authority to prove unreasonableness would, we respectfully suggest, be inappropriate. To sum up, I emphasise that the Bill already provides for the same end result as the amendments would. Only unreasonable behaviour can form the basis of the court’s decision on whether a personhas facilitated or acted in a way likely to facilitate a serious offence. As a result, the amendments are unnecessary and, for the reasons I have set out, inappropriate. I therefore hope that the noble Lord will feel able to withdraw his amendment and resist any temptation to bring these amendments back on another occasion.