Clause 34
Serious Crime Bill [Lords]
4:45 pm
Douglas Hogg (Sleaford and North Hykeham, Conservative)
I rise to support the amendments in my name, and to reinforce the speech that my hon. Friend the Member for Hornchurch made. It is worth considering what the clauses say. Clause 34(1) says that the proceedings are “civil proceedings”, not criminal proceedings. Subsection (2) states that
“the standard of proof to be applied by the court in such proceedings is the civil standard of proof.”
I shall pause at that point. Anybody who comes to the Bill afresh, and without any background knowledge at all, will conclude that clause 34 means what it says, namely that for all purposes the proceedings are to be deemed civil, and that the standard of proof is to be that of the civil court. That is what it says.
It is of course true that the courts will approach the matter in the context of the McCann judgment, which is the judgment of the House of Lords. However, let us begin by reminding ourselves that the House of Lords determined that approach in a particular fact-related case, namely McCann, and it construed an ASBO, not a serious crime prevention order. It is possible—it may even be likely—that the courts would apply to the serious crime prevention orders the kind of reasoning that they applied to ASBOs, but there is no certainty that they would. Why should we assume that the courts will give to the phraseology in clause 34 a different interpretation from that which appears in the Bill? There is no certainty of that, and my hon. Friend the Member for Hornchurch makes a very sound point. The courts will take into account the fact that Parliament is acting against the background of knowledge of the McCann case—in fact they might assume that we are putting this clause into the Bill so as to disapply the approach that was taken in relation to that judgment.