Clause 1
Serious Crime Bill [Lords]
10:45 am
Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel and South Downs, Conservative)
I agree entirely with my right hon. and learned Friend. However, that matter is not the subject of this amendment and not what we are discussing. We are discussing clause 1 and the original evidential burden that will be necessary for the making of one of these orders. No doubt, we will come on to that issue of the reverse burden of proof in clause 5.
So, should we allow these orders to be made on the balance of probabilities, or should we allow them to be made only where there is evidence beyond reasonable doubt that the person concerned has been involved in serious crime?
Part of the problem here has been that the Government have not been clear about what they intend in relation to the legislation. Part of the purpose of this amendment is to get the Government to be clear about what they mean, and to put in the Bill a measure that I think most hon. Members would like to see in relation to the evidential burden.
My right hon. and learned Friend has already raised the issue of the McCann judgment, which has also been raised by a number of external organisations, including Liberty. During the Second Reading debate on 12 June, the Minister for Security, Counter Terrorism and Police went to the trouble of trashing Liberty’s briefing on this issue. He did so in a very uncompromising manner. He quoted the part of the briefing that said:
“The Government may hope that these orders are a way of getting round the presumption of innocence because the applicable standard of proof will be the lowest civil standard of ‘on the balance of probabilities’”.—[Official Report, 12 June 2007; Vol. 461, c. 664.]
That was Liberty’s fear—that the rules of evidence that should be applied in relation to these very serious orders would not be applied, and that the lower test would apply, that of
“on the balance of probabilities.”
The Minister for Security, Counter Terrorism and Police went on to say:
“That is absolutely wrong. My noble and learned Friend Baroness Scotland stated categorically in the other place that, in keeping with the House of Lords judgment in the case of McCann, 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, namely ‘beyond reasonable doubt.’ Liberty’s assertion is thus entirely unfounded—a bit of a shame.”—[Official Report, 12 June 2007; Vol. 461, c. 664.]
If that is the case and if we are to take the word of the Minister for Security, Counter Terrorism and Police for it, as expressed on Second Reading, that the test is to be “beyond reasonable doubt”, what possible objection can the Government have to the inclusion of those words in the Bill by this amendment? What possible objection could they have, given that that is the test that the Minister has said would apply?
In fact, the Minister, disgracefully, misquoted what Liberty actually said. Liberty made it clear that there was a caveat. Although it said it was clear that the Government intended originally to apply the test of the balance of probabilities, it pointed to the McCann judgment and noted:
“In the context of ASBOs this does not seem to have worked...The Courts have developed a heightened civil standard of proof which Lord Bingham has described as, for all practical purposes, indistinguishable from the criminal standard”.
Therefore, it is the McCann case we should turn to, because, as the hon. Member for Taunton pointed out, contrary to what the Minister said on Second Reading, Baroness Scotland, the Minister in the House of Lords, was talking not about beyond reasonable doubt being the correct evidential burden for the clause but the balance of probabilities when she said that there should be a sliding scale. She said:
“I thank those who have acknowledged the sliding scale in relation to the balance of probabilities.”—[Official Report, House of Lords, 7 February 2007; Vol. 689, c. 764.]