Serious Crime Bill [Lords]

Most hon. Members, particularly those who sat through our extended periods in Committee, will accept that amendment No. 63 relates to the crux of this legislation—the principal reason why my party and I are uncomfortable with the Government's proposals. The amendment has a simple purpose: to put the criminal standard of proof into the Bill. At the moment, the Government insist that serious crime prevention orders are a preventive, not punitive, measure and that therefore the civil standard of proof is appropriate. However, I remind hon. Members that the sanctions for those who fall foul of the proposals are severe indeed: people's travel can be restricted, within the United Kingdom as well as abroad, and they may also be restricted in where they can work, live and visit. Short of sending people to prison, pretty much every imaginable restriction on the liberty of the citizen may be involved, and if people fail to comply with the orders, the sanctions extend as far as a prison sentence. In some cases, it is entirely possible that somebody contravening the orders might go to prison despite never having committed a criminal offence or having been found guilty according to a criminal standard of proof. Furthermore, the orders can apply for anything up to five years—indeed, they are more draconian than that, because the five-year period is indefinitely renewable. Somebody could have a most severe restriction on their liberty for the remainder of their life without having committed a criminal offence or having been found guilty by any criminal standard of proof. The amendment addresses head-on that lack of legal certainty. Baroness Scotland said in the other place:"““the 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, House of Lords, 7 February 2007; Vol. 689, c. 729.]" Let us stop for a moment, as we did in Committee, and consider that statement to ascertain whether it is satisfactory in respect of the protection of the citizen's liberty. The Baroness mentioned a ““sliding scale””; that will ring alarm bells with some people straight away. She talked about the ““likely””—another qualification—standard of proof being ““very close”” to the criminal standard. Everyone will note that she did not mention ““the criminal standard””, merely one ““very close”” to it. The Under-Secretary of State for the Home Department, the hon. Member for Gedling (Mr. Coaker) said during earlier deliberations on the Bill:"““On clause 1(1)(a), we would expect the standard of proof to be virtually identical to that for criminal proceedings””––[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 19.]" Again, the caveat is entered: not identical, but ““virtually identical””. On Second Reading, the Minister for Security, Counter-Terrorism, Crime and Policing said:"““we expect that the standard of proof required in relation to the question of whether a person has been involved in serious crime will be the same as in criminal cases””—[Official Report, 12 June 2007; Vol. 461, c. 664.]" However, that standard has not been put into the Bill; at present, according to the verbal guidance given by most Ministers, we are some way short of the criminal standard of proof. We do not know how far short we are, and it is difficult to know how the legislation will be enacted in practice, but we do know, or appear to know, that the criminal standard of proof will not have to be met for people to be subject to the restrictions on liberty and sanctions in the Bill. To broaden my point, I shall briefly go through the scope of some of those sanctions. First, as I have mentioned, they are very wide-ranging; we are not talking about a slap on the wrist. They have been called ““gangster ASBOs”” in tabloid parlance, although the punishment that they carry has a far greater effect than ASBOs themselves. Secondly, the sanctions are too easy as an alternative to prosecution. No one is more in favour than I of trying to arrest and detain someone involved in crime—drawing the evidence together and putting it before a court with a jury of the person's peers. If such a person can be proved to be guilty, a criminal prosecution should be sought. However, I feel far more uncomfortable with the Bill's underlying assumption: that we essentially know who is breaking the law, but we do not have enough evidence to prove it, so we will make legislation that means that we do not have to come up with such evidence, because we can restrict those people's liberty severely without needing to prove that they have done anything wrong. If anything, the opposite to the norm is often the case: the accused person has to demonstrate that they have not done anything wrong, rather than the other way around. A person need never have committed a crime to fall foul of the Bill and in my party we do not regard that as a sufficient safeguard. The amendment gets to the absolute essence of the legislation, and I am keen not only to speak to it but press it to a Division so that we can try once again to put a criminal standard of proof into the Bill. I urge the Government to consider that point seriously.