James Brokenshire (Shadow Minister (Police Reform), Home Affairs; Hornchurch, Conservative)

I fear that we may be going over some old ground, but I hope that, at least, we will do so in a slightly different way, rather than simply repeating some of the arguments that have probably been rehearsed in great detail in relation to this issue, which centres on whether the orders that are to be sought under the Bill are of a civil nature or otherwise.

Clause 34(1) states:

“Proceedings before the High Court in relation to serious crime prevention orders are civil proceedings.”

We have obviously debated previously the issue of the standard and burden of proof associated with these orders and reference has been made to the McCann judgment as it applies to antisocial behaviour orders. In particular, we debated whether the McCann judgment would operate in relation to the orders that are envisaged under this Bill, and therefore whether what has been termed the heightened civil standard might apply.

I note that the Minister and his colleagues have said that that is the intention behind the drafting of the Bill—that although it is stated as being a civil order and although it is stated that the court should apply a civil standard of proof in relation to serious crime prevention orders, it is understood that, following the McCann judgment, in essence a higher standard would, notwithstanding, still be applied in accordance with the terms of that judgment.

I suppose that we come back to some of the fundamental issues and also to trying to provide some sort of certainty in relation to the Bill, to understand very clearly what is intended. The judgment of Engel v.The Netherlands (No. 1) in the European Court of Human Rights effectively established three standards to determine whether proceedings are regarded as criminal for the purposes of the European convention. That judgment said that there are effectively three tests: the domestic classification, in other words what the domestic law classifies the proceeding as; the nature of the offence, and finally the severity of the potential penalty that the defendant risks incurring. The Engel case was referred to in the leading judgment in the McCann case, when it was suggested that the third factor—in other words, the severity of the potential penalty—was the most important factor in determining whether a matter was regarded as criminal.

If we are saying that a higher standard is being applied in relation to ASBOs and one then looks at the potential impact of orders under this Bill, I thinkthat it is accepted—even if there is a difference asto whether such orders are a punishment or a prevention—that they are potentially very significant, in terms of their ambit, scope and impact. Therefore, if the suggestion is that the potential penalty is the relevant factor in deciding whether a matter is regarded as criminal or not, I would submit that there is a very strong argument for saying that this matter should be regarded as criminal.

In the context of the McCann judgment and those relevant tests, for the sake of certainty and clarity about the standards that we seek to adopt, it would be better to include a measure in the Bill to make absolutely clear the burden of proof and the expected standards. Although I note what Ministers have said, there is still the potential for a legal argument about whether McCann applies, and if so, the way in which it applies in a given circumstance. The Bill is being introduced after the McCann judgment, and we do so in conscience and knowledge of what we are doing.

If the Bill says that the proceedings are effectively civil proceedings, and that as a consequence, the standard of proof that the court will apply is the civil standard of proof, notwithstanding the McCann judgment, it could be argued that, because of the decisions and wording in the Bill, we as Parliament are consciously determining that the McCann judgment should not apply. The Minister may say that that is not the intention, but it is better to be clear in law about what we are talking about, hence the reason for the amendment to clause 34 and the amendment to clause 35, which would state that the proceedings should be treated as criminal proceedings, and delete subsection (2) on the burden of proof.

I know that those arguments and issues have previously been debated differently, but it is right and proper that we are as clear as possible about the requirements for proof, particularly as a consequence of the potential penalties that may arise. To use the words of my right hon. and learned Friend the Member for Sleaford and North Hykeham, if it looks like a duck, perhaps it is a duck. If that is the case, and we are considering a criminal issue, let us put it in the Bill, so that the courts are certain and we are certain about what we are discussing.

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