Proceeds of Crime Bill
Lord Thomas of Gresford (Liberal Democrat)
In supporting the amendment, I speak also to Amendments Nos. 24 and 25 and their concurrent amendments in relation to Scotland. We are concerned also with the substitution of the legal or persuasive burden of proof as currently drafted with an evidential burden.
The general and sensible principle of litigation, whether civil or criminal, is that he who asserts must prove. It is difficult to prove a negative. Negative evidence is always circumstantial or indirect where a respondent must prove the existence of a fact, or a series of facts, which is or are inconsistent with the fact which his opponent is asserting and he seeks to disprove.
We have here in straightforward language a reverse burden of proof which, as the noble Lord, Lord Kingsland, said, always attracts the interest of the lawyers who are engaged in considering the provisions of the European convention. The clause states that property transferred, held or purchased is the result of the respondent's general criminal conduct. That is the presumption that the court must make unless there is evidence to the contrary. As drafted, the respondent must prove a series of facts which are inconsistent with that proposition. For example, he must prove that he has been given money, won money on the horses, has had a bonus from the Stock Exchange or has had money from specific innocent sources. In principle, that is far too heavy a burden to impose upon an individual. The evidential burden should replace that which is drafted so that the respondent may discharge that burden by adducing evidence of a reasonable possibility of the existence of such facts and then leave it to the applicant—whether it is the prosecutor or whoever—to establish overall that the property is indeed the proceeds of crime.