Noble Lords will recall that on Report on
"offenders who exploit information about any offence, regardless of the seriousness of that offence".—[Hansard, 29/10/09; col. 1295.]
Nothing in the Explanatory Notes to the Bill explained how that could possibly be compatible with the rights and freedoms protected by the European Convention on Human Rights. No doubt because the Government came to realise that the scheme was grossly over-inclusive, the noble Lord, Lord Tunnicliffe, also explained:
"All we are saying is that if offenders profit from accounts of heinous crimes, an action which can cause great distress to surviving victims and bereaved families, the courts should have the power to order them to pay back the proceeds".—[Hansard, 29/10/09; col. 1293.]
The adjective "heinous" is not a technical term of art. It is a word whose ordinary meaning is given in the Oxford English Dictionary as,
"odious; highly criminal; infamous; chiefly of offences and offenders".
Like many other adjectives, such as "reasonable", or "proportionate", it involves questions of fact and degree involving the exercise of judgment.
The noble Lord further explained:
"To provide additional reassurance to the House and after extensive consultations, we intend to bring forward amendments at Third Reading to further limit the ambit of the scheme to indictable-only offences. Limiting the scheme to those who exploit material about offences that are triable only on indictment will be a major move on our part".—[Hansard, 29/10/09; col. 1295.]
He added that the scheme would then cover,
"only offences at the most grave end of the spectrum such as murder, manslaughter or rape".—[Hansard, 29/10/09; col. 1296.]
Offences at the grave end of the spectrum are what might conveniently be described—in the noble Lord's words—as heinous offences; not just serious, but grave.
Unfortunately, the Government's new amendment does not achieve the Minister's stated aim of confining the scheme to profiting from "accounts of heinous crimes". Offences triable only on indictment in the Crown Court are serious, which is why they cannot be tried in magistrates' courts, but not all indictable offences triable only in Crown Courts can properly be described as "heinous" offences, or as being at the most grave end of the spectrum. They are all serious but are not all heinous or grave. For example, the various types of homicide involving murder and manslaughter are undoubtedly serious offences triable on indictment in the Crown Court, but they range widely in their character depending on the circumstances of the particular offence. The offence of murder, which can be tried only on indictment and carries a mandatory life sentence, covers a broad range of situations from mercy killings, or the killing of an abusive partner by a victim of domestic violence, to terrorist atrocities and mass murders.
In other words, the scheme, as it would stand with the government amendments moved today, remains overinclusive in that those at risk of having the proceeds of their works forfeited to the state, and the chilling effect on freedom of expression, would remain. A former criminal who wishes to write a book, collaborate in the making of a play or film, or discuss his or her crime with a journalist or publisher to receive a fee, will not know from the language written into Part 7 whether he or she may be liable to pay the penalty of confiscation merely by knowing that discussion of indictable-only offences creates a risk. That is why, to achieve the Government's stated aim, and no more, it is necessary to limit the scheme's application to those who exploit material about heinous indictable offences.
Some might argue that the test of heinousness is too vague to be applied by the courts. There are several answers to this objection. In the first place, the Government consider that the courts will be capable of interpreting and applying the vague criteria already contained in the Bill. The test of whether an offence is heinous is just as capable of being applied by the court having regard to the particular circumstances of the offence as is that of deciding the social value of a work. What is heinous and at the grave end of the spectrum involves a judgment about matters of fact and degree, which the courts are perfectly capable of making.
Secondly, senior courts in the common law world, notably in India and the United States, already use the test of whether a crime is heinous for the purpose of deciding whether it merits the death penalty. It has been used by the Supreme Court of India in deciding which categories of murder could attract the death penalty. In the case of Bachan Singh, the Supreme Court noted:
"While considering the question of sentence to be imposed for the offence of murder under Section 302, Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence".
Similarly, the Supreme Court of the United States, when interpreting the Eighth Amendment's prohibition against cruel and unusual punishment, has repeatedly decided that, under the precept of justice, punishment is to be graduated and proportioned to the crime, and that capital punishment must be limited to those offenders who commit,
"a narrow category of the most serious crimes", and whose extreme culpability makes them,
"the most deserving of execution".
The case of Roper v Symonds, cited by Justice Kennedy in Kennedy v Louisiana in 2008, illustrates that. The American federal courts do that in accordance with the well-known principle of proportionality. That shows that the criterion is capable of being interpreted and applied in context by our judiciary.
Similarly, the European Court of Human Rights and our own courts and tribunals have to carry out a similar process when deciding whether a given example of ill-treatment is sufficiently severe to amount to inhuman or degrading treatment in terms of Article 3 of the European convention. The confiscation of proceeds under this scheme undoubtedly involves the infliction of a penalty or fine for exercising the right to free expression. The proceeds are not to be paid to victims or their families. They are to be confiscated and paid to the state, like any other fine or penalty.
In fact, the order involves the infliction of a double penalty: first, the penalty of a custodial sentence; and then the penalty, as a convicted criminal or previous criminal, of having the proceeds not of the crime but of exercising the right to freedom of expression confiscated by the state. The defendant has already been sentenced and punished for the offence. He or she is to be further punished for writing about it in an article or book, or making a film or a play, deemed by the court to have insufficient value to be in the public interest.
The JCHR report in which I was involved expressed concern about the lack of certainty in the scheme. Unfortunately, in my view, and that of others, it did not take sufficient care on this occasion. I remain concerned about the lack of certainty in drawing a distinction between offences triable only on indictment and other offences. I have tried my best but I have been unable to discover any comprehensive list of offences which are triable only on indictment—indeed, I have asked the Minister's department about that. I am sure that the Minister will provide a list in his reply, although I am not sure that such a list exists. I cannot tell, therefore, which offences are covered. However, my greater concern is with the fact that the Government's use of this category is overinclusive by not being restricted, as the Minister wished, to heinous or grave offences.
The Government accept, as they must, that to deprive a criminal or former criminal of profiting from an account of his crime interferes with the right to free expression and the right to property. The Government also accept, as they must, that the interference must be no more than is necessary to conform to proportionality. My amendment seeks to give effect to that principle by ensuring that the forfeiture scheme will apply only to heinous offences at the most grave end of the spectrum of indictable offences.
Like the Mikado, I hope the Government and the House, will appreciate that, "my object all sublime", is to,
"let the punishment fit the crime, the punishment fit the crime".
If my amendment is agreed to, it will be much more likely that Part 7 will pass muster if its compatibility with the convention rights is challenged in British courts or before the European Court of Human Rights. I beg to move.