Clause 34
Serious Crime Bill [Lords]
5:00 pm
Geoffrey Cox (Torridge and West Devon, Conservative)
Forgive me if I have sounded repetitious, Mr. Benton. I was not in Committee this morning, so I do not know what you covered; I was merely answering the hon. Lady’s question. She is labouring under the misapprehension, as I see it, that somebody would have to have a criminal conviction first; however, they do not. That is why the clause with which we are dealing, on the burden and standard of proof, is in my judgment so dangerous. It allows somebody to be open to one of these orders—which are classed as civil and said only to be preventive, but which are really penal in nature, because of the potential consequences that would flow from them—on the civil standard of proof, which, however one may strain to approximate it to the criminal, simply falls far short of it.
The Committee is invited to pass in the clause a provision that allows somebody to have their liberty essentially removed and their assets stripped from them when a judge is not sure that they have done what they are said to have done, or that they will go on to do anything else like it. That is a very grave step. I say to the hon. Lady and to other Government Members that that has not, in 300 or 400 years of the development of the law, ever been deemed to be wise. It has always been regarded in the past as a step utterly inconsistent with the principles of the common law that guarantee our liberties.
Government Members must be certain in takingthis step that it is justified by proper arguments advanced by the Government, but what are they? The consultation paper does not reveal compelling arguments, in my judgment, for the imposition of so grave and so significant an order as this on the slender basis of a judge thinking that it is more likely than not, or even highly likely, that a man has done something like this.
I ask the hon. Lady, for whom I have the greatest respect, to reflect. Suppose that she puts herself in the position of a friend, cousin or neighbour—somebody whom she knows well—who is subjected to an application of this type because, at some time in the past, they may have acted in a way that was likely to facilitate the commission of a crime by another. The evidence is put forward and the judge has only to say, “Well, it’s more likely than not that he has acted that way.” I think that the hon. Lady is likely to be very concerned about that. Merely because it is the policy of the Government whom she supports does not mean that we should not question it, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said.