Serious Crime Bill [Lords]

The Government have sought to clarify their position on the standard of proof to be applied in considering serious crime prevention orders, but the wording of the Bill rather muddies the waters, which is why further clarity is necessary. The starting point for the standard of proof that is to be applied in deciding whether a person has been involved in serious crime is the Government's Green Paper, ““New powers against organised and financial crime””, which was published in July 2006. Paragraph 3.1 states:"““The courts would be able to impose an order if they believe on the balance of probability that the subject""Has acted in a way which facilitated or was likely to facilitate the commissioning of serious crime""That the terms of the order are necessary and proportionate to prevent such harms in future.””" It adds at paragraph 3.4:"““we would envisage stating on the face of the legislation that to impose an order the courts should be satisfied on the balance of probability that the test is met.””" Clauses 35(2) and 36(2) are incorporated in the Bill precisely to give effect to that stated intention, as they make it clear that the standard of proof to be applied by the High Court and the Crown court is the civil standard of proof—in other words, the balance of probabilities test, or, in simple language, ““Was it more likely than not?”” However, the Government have said that despite the language used in the Bill, things have moved on, and they would expect the House of Lords judgment in the case of McCann, which related to antisocial behaviour orders, to apply to serious crime prevention orders, with the effect that the aforementioned sliding scale would be adopted, incorporating something close to the criminal burden of proof. As the Minister said in Committee,"““For clarity, let me say that we expect that, with respect to clause 1(1)(a), the standard of proof, as laid out in the McCann judgment, would be virtually identical to the criminal standard of proof.””" He added:"““as far as the Government are concerned, the judgment in McCann in the House of Lords will inform the practice when it comes to the implementation of serious crime prevention orders.””––[Official Report, Serious Crime Public Bill Committee, 26 June 2007; c. 17-18.]" So the expectation is that the McCann judgment would apply or that it would ““inform the practice””. What has not been said is that that will be the practice. That is why I remain of the view that it is important, for the sake of certainty and clarity, to avoid the need for case law, and for interpretation to make this relatively simple issue clear in the Bill by way of the amendments.