Clause 11 - Assumptions to be made in case of criminal lifestyle
Proceeds of Crime Bill
5:45 pm
Mr Nick Hawkins (Surrey Heath, Conservative)
As the hon. Gentleman rightly said, we on the Conservative Benches wish to associate ourselves with amendment No. 24 and amendments Nos. 51 to 59. I want to expand a little on his comments because serious points have been put to my hon. Friend the Member for Beaconsfield and me by Liberty, which is an organisation that has always had all-party support. Indeed, it has support from several Government Members in the Committee, although not all of them are in the Room this afternoon.
Before anyone is accused of trying to tear out the heart of the Bill or protect the Mr. Bigs, let me say that Liberty does not want to undermine the legislation, but still has substantial concerns. It believes that the Government have not got the balance right. It provided some helpful international comparisons with the way in which the provisions operate in other jurisdictions. Without wanting to bore Committee members with legal cases, which I know would be dismissed by Government Members as lawyers trying to find loopholes, I want to draw attention to ways in which foreign jurisdictions have been used in the most serious recent cases in our courts.
One of Liberty's points is that bad law can lead to greater problems if the courts strain to criticise legislation that Parliament has enacted. That may lead to the exact consequences that worry Government Members such as the hon. Member for Glasgow, Pollok: that the courts' unhappiness about Parliament's drafting will lead to loopholes being created in the courts. He and I share the aim of not wanting the Mr. Bigs to escape, so we must ensure that the law is balanced and proportionate, which is what Ministers have claimed since Second Reading.
Lord Woolf, one of our most serious judges, and hardly one of the airy-fairy civil libertarians whom the Home Secretary has recently criticised, referred in a 1993 case to American cases on how the balance should be struck. I will set out what Lord Woolf has said, and I apologise to Committee members for the technicality, as they may not be familiar with the way in which such matters are set out in court.
Both Liberty and Lord Woolf are concerned that the application of the statutory assumptions in the Bill would create a mandatory forensic exercise in which there is potentially no rational connection between the facts proved by way of the trigger convictions and the ultimate facts presumed. Various jurisdictions have already considered in other cases what safeguard tests should be applied to determine when it is appropriate for reverse burden assumptions to be permitted.
In other words, courts in other countries, which are sometimes the highest courts in those lands, have considered the safeguards that are required to make the law work properly and ensure that civil liberties are not completely trampled over. The test has been expressed in different terms, but the requirements are similar. They are to make the initial application of assumptions by a court devoid of arbitrariness.
Lord Woolf discussed a case in the United States that he applied in connection with a case in this country. He said that there was a
``substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.''
That was the case of Leary v. the United States in 1969. In 1993, Lord Woolf said that that was the minimum safeguard without which it would be difficult to justify a reverse-burden provision. Lord Woolf is one of the most senior judges in the land, and he wants the laws to work and he, like us, wants to ensure that the Mr. Bigs are hit. He regards the phraseology used in the American case as the minimum safeguard. Liberty and the Conservatives are worried because the Government's proposals do not provide even the minimal safeguard that one of our senior judges regards as essential.
Liberty has identified many cases in Hong Kong, Italy, South Africa and Canada, but I shall not bore the Committee with those. There is little point in going though those cases in detail, although if the Minister mentions them, I may return to them at a later stage. That is the way in which the matter has been set out to us.