Proceeds of Crime Bill
Lord Kingsland (Conservative)
I shall speak briefly to the amendment because its substance will be familiar to the Minister. It reflects a view espoused among others by Justice.
As the Committee is aware, reverse onus of proof clauses do not necessarily breach paragraph 2 of Article 6 of the European Convention on Human Rights. However, our courts have held that the imposition of a persuasive burden of proof on the defendant in respect of the crucial elements of an offence breaches paragraph 2 of Article 6. For example, in R v Lambert the Judicial Committee of your Lordships' House held that, in accordance with the principle of proportionality reverse onuses of proof clauses in the Misuse of Drugs Act 1971 should impose only an evidential rather than a persuasive burden of proof in order to comply with paragraph 2 of Article 6.
Although it may be open to the courts to interpret Clause 11 so as to impose an evidential burden only in accordance with the Human Rights Act, in my submission it should be clarified on the face of the legislation that the burden to be imposed is evidential rather than persuasive. Indeed, reverse onus of proof clauses in recent legislation have been expressly drafted so as to impose an evidential burden only following human rights concerns expressed in your Lordships' House and another place—for example, in Section 118 of the Terrorism Act 2000 or Section 53(3) of the Regulation of Investigatory Powers Act 2000.
In short, a similar provision in Clause 11 would help to ensure that the reverse onus clauses in the Bill are applied in accordance with the principles of the convention. I beg to move.