I am trying to fathom out whether I will correctly pronounce the constituency of the hon. Member for Beaconsfield (Mr. Grieve) this morning, given that it was such a point of contention in the Chamber last night. He has given us two options for changing the standard of proof that will apply to confiscation proceedings. Before we adjourned last Thursday, he said that the amendments were probing amendments following the Government's decision to change the wording in subsection (7). The issue is important, as it has a crucial bearing on the way in which confiscation proceedings are conducted in the courts.
Amendment No. 30 would apply the criminal standard to the process of determining whether the defendant has a criminal lifestyle, whether he has benefited from any criminal conduct and the amount of the defendant's benefit. That would mean that the prosecution would have to prove beyond reasonable doubt all matters relating to the making of a confiscation order. It would restore the position to that which prevailed following the decision of the Court of Appeal in 1990 in the case of Dickens, which ruled that the criminal standard should be applied by the court in confiscation proceedings under the Drug Trafficking Offences Act 1986.
I recall that the then Government, whom the hon. Gentleman supported, said that they had always intended that the civil standard should apply to proceedings under the Drug Trafficking Offences Act. Indeed, amendments were introduced under the Criminal Justice Act 1993 to make it clear that the civil standard should apply both to the determination of benefit and to the amount to be recovered in drug and non-drug confiscation proceedings.
I am firmly opposed to amendment No. 30. If we were to change the standard of proof to that applicable in criminal proceedings, there would be substantial reduction in the effectiveness of confiscation proceedings. It would return us to the position that prevailed prior to the Criminal Justice Act 1993. There is a clear distinction to be drawn between the standard that applies to a defendant's trial and the determination of his or her benefits from such offences.
I come now to amendment No. 31. The hon. Member for Beaconsfield draws our attention to the current legislation, which stipulates
``the standard applicable to civil proceedings'', and observes that we have changed that wording to ``a balance of probabilities''. The reason for the change is straightforward. In some civil proceedings, such as proceedings for contempt, the standard of proof is beyond all reasonable doubt. We wish to make it clear that that does not apply to confiscation proceedings. To avoid any doubt, we used the balance of probabilities formula in the Bill.
I understand the Minister's point. Does he propose that the Home Office use the term ``a balance of probabilities'' in all future legislation, whenever it intends to use what we traditionally regard as the civil standard? My hon. Friend the Member for Beaconsfield pointed out that in other recent legislation the Government have used the wording of the civil standard.
I do not want to give an assurance off the top of my head that we shall use a particular form of words on all occasions. If the hon. Gentleman bears with me, we shall explore whether changing the wording of the Bill makes any difference to the level of proof required. On Thursday, the hon. Member for Beaconsfield suggested in Committee that by referring to the balance of probabilities rather than the civil standard of proof in clause 6, we intended to make a substantive change to the standard of proof that will be applied in confiscation proceedings. That is not so.
The hon. Gentleman suggested that the flexibility that the courts claim attaches to the civil standard of proof would not be provided if we used the wording ``a balance of probabilities''. In my view, that is not correct, and our opinion is supported by case law. In the case of Re H in 1996, the Lords considered the standard of proof in a child care case. Lord Nicholls, when discussing flexibility, referred to the balance of probabilities rather than the civil standard. He went on to explain what is meant by the term ``a balance of probabilities''. He said:
``The balance of probability standard means that the court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury . . . built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.''
From case law, we can be sure that the courts will continue to require the same sort of evidence as before in confiscation proceedings. I hope that the hon. Member for Beaconsfield is reassured by that, and is prepared not only to withdraw the amendment, but not to press amendment No. 31.
If the state decides to confiscate someone's assets in the circumstances outlined in the clause, is it not being alleged that the person concerned has fraudulently, or at least dishonestly, acquired those assets? The draconian consequences of the confiscation order point to the fact that the civil standard of proof should be a high one. Is not that an argument for using the civil standard of proof rather than a balance of probabilities, which the Minister accepts was introduced to make confiscation easier?
The hon. Gentleman may understand these matters better than I do, but I have shown clearly the accepted precedent in law that the required standard of proof for the balance of probabilities varies with the seriousness of the offence. I do not know whether he contests that. The purpose of our wording is clear. We reject the amendment because it would be a retrograde step to accept it. It would apply the criminal standard to all confiscation proceedings, and that would be difficult to implement and would render the legislation useless. A change of wording from the civil standard to the balance of probabilities is not intended to change the evidence that is required. However, that is not the criminal standard. That standard applies in some civil litigation and that is potentially confusing. The standard is flexible. The more serious the allegation, the greater the degree of proof required by the courts under the balance of probabilities.
Let me take the Minister back to what my hon. Friend the Member for Beaconsfield said when moving the amendment. Conservatives understand the Minister's point about amendment No. 30. He said that he believed that it would be inconsistent with existing legislation to introduce the criminal standard of beyond reasonable doubt or satisfaction so that a court is sure. He pointed out the distinction between our proposal and previous legislation. We are not wholly persuaded. The Bill will give draconian powers, which troubles us—that is why we wanted to probe him—but I shall concentrate my remarks on amendment No. 31.
The Minister set out his reasons why the balance of probabilities is the Government's preferred option. However, he conceded in response to my hon. Friend that that standard is the lowest that we could have. The Government say that they do not want a terribly high hurdle that those who wish to use the powers must get over. We are worried about that. My hon. Friend rightly mentioned the draconian consequences of the Bill, and the Government should bear it in mind that the prosecution should not have a low and easy hurdle to get over. There should be proper safeguards.
The Minister is correct to discuss varying standards of proof in civil proceedings. However, as he conceded, there is a difference between the balance of probabilities and the civil standard of proof. The use of the civil standard formula would give the courts and all concerned a clear indication of the type of safeguards that are required. He and his advisers must reflect on the matter, because it will perhaps be addressed on Report, and certainly in another place.
The Minister extensively quoted the comments of Lord Nicholls, and the Law Lords will scrutinise the matter. He also referred to the manner in which the two different tests of balance of probability and the civil standard have been used in recent legislation. He must concede that the Government have used the words
``the standard of civil proceedings'' in legislation as recently as just before the general election. He has difficulty saying that we should not use the civil standard of proof in legislation because there are civil proceedings in which the criminal standard is used. Their Lordships will understand the signals that are intended to be sent by referring to the standard of proof in civil proceedings, as the Government have done in recent legislation.
We want a just result in every case. We do not want draconian confiscation. The hon. Gentleman has rightly been concerned throughout our proceedings with hitting the Mr. Bigs, and we share that view. Equally, however, he would not argue that merely because a Labour Government have introduced the Bill, the wording must by definition be right in every case. Our job as a parliamentary Committee is not to rubber-stamp proposals but to ensure that the wording is right and will be effective in achieving the objective that he and I share—to hit Mr. Bigs—while ensuring that powers are not introduced that are so draconian that they will turn us into a police state.
The hon. Gentleman may disagree with my comments, but he should not misrepresent them. He says that it is clear from my comments that we do not want a terribly high hurdle and that using the civil standard rather than the balance of probabilities would be a clear sign of the level of proof required. He may disagree with my comments, but in fact the burden of them is the reverse. The hurdle is being not lowered but clarified by changing the formula from the civil standard to the balance of probabilities.
The Minister has not entirely reassured me. His argument seems circular. On the one hand, he argues that there is no difference between the balance of probabilities and the civil standard of proof, but on the other, he chose, presumably following advice, to change the wording between the draft Bill and this version in order to effect that transformation. He now reassures us, by way of a subtext, that reference to the balance of probabilities rather than the civil standard of proof will not constitute a terrible hurdle to confiscation.
The Minister made some interesting and correct remarks about the history of the matter, and that is where my anxiety stems from. As he is aware, following the introduction of confiscation legislation, the judiciary, in trying to apply the rules of fairness that should colour its approach, reached the conclusion that the only proper test that should be applied in confiscation was the criminal standard. Parliament said that it was unhappy with that, as is its right. However, it is worth bearing it in mind that the judiciary, in evolving its own rules, reached that conclusion in 1990, and I am sure that it did so because it was worried about unfairness, which should always colour the view of Parliament, and especially of the Committee. If justice is to be seen to be done, it must be seen to be fair.
As the Minister appreciates, my intention in tabling, perhaps with tongue in cheek, a return to the criminal standard of proof was not to press the matter to a Division. I accept that Parliament has made a decision on that, but the Minister has acknowledged that, for several years and under certain circumstances, the courts have had some latitude to evolve their own rules about the flexibility within the civil standard. However, it is not inconceivable that the judiciary would also exercise latitude if we were to stick with the balance of probabilities.
The allegation that is made in confiscation proceedings is akin to fraud: a person is accused of owning assets that have been obtained fraudulently, or by other dishonest means. As that is the case, there are compelling arguments for leaving the judiciary with discretion. It would have that in greater measure if the balance of probabilities were replaced by the civil standard of proof.
My point might be akin to counting the angels on the head of a pin, because it is open to doubt whether one form of words will produce a hugely different approach from the other. However, I prefer to refer to the civil standard of proof. It is an expression that is currently used more frequently than the balance of probabilities. It also sends out a signal that, in deciding on matters in which the burden is firmly placed on the people who are suffering the confiscation to prove their case, the judiciary is exercising a test under the civil standard that can be tailored to the circumstances. Moreover, the Minister's officials initially thought that that was the correct test to apply.
It appears that the hon. Gentleman wishes to return to the original wording in order to give the courts flexibility in deciding on confiscation up to and including the criminal standard. Is that the case? He has said that we are dancing on the head of a pin, but I am trying to identify how much more latitude would be allowed by the civil standard statement than by the balance of probabilities. The only potential difference is that flexibility would be allowed all the way up to applying the criminal standard in the case of confiscation. Is that his intention?
No. If I had wanted to return to the criminal standard, I would have stuck out for amendment No. 30. I do not think that the court would return to that, but it would consider that the proceedings that are being brought are a serious matter, and the Committee needs to be of reminded of that.
I am in favour of confiscating ill-gotten gains, but the legislation is draconian. We do not wish people's legitimate assets to be taken away, but history teaches us that that might happen. On occasions, courts have refused to make such orders, or have mistakenly made them. As human affairs are imperfect, sometimes the wrong assets are targeted. Therefore, it is important that there should be safeguards for individuals. The court must apply the proper test.
As I listen to the Committee's discussions, I sometimes have a horrible feeling that the procedure is seen as a rubber stamp that follows after people are deemed to have a criminal lifestyle and to fall within the category—they have gone through the door, the door closes, down comes the stamp and away goes their money. I am sure that the Minister would agree that that is not what the legislation is about.
With regard to the circumstances that have been described, I believe that there should be safeguards. There is no doubt that much greater flexibility over civil and criminal standards has been introduced, certainly while I have been practising at the Bar. I have frequently conducted civil cases in which, at the end of the day, the judge has been only too happy to point out that he has reached his decision—just to rub it in for the party against whom he finds—because the evidence is overwhelming. If he is in a position to do that, it is helpful. Therefore, in my experience, judges have exercised greater flexibility.
I am worried that the balance of probabilities will constantly be thrown in the face of judges who have anxieties about cases, and that, although they may have doubts, and the case may not be clear-cut, they will go ahead and make their finding. If they had the civil standard of proof on which to rest, however, they would have greater flexibility in cases in which they might be concerned that injustice will be done. That is the nature of the difference. It is not a question of using the criminal standard of proof. All these matters are ultimately subject to some flexibility within the civil standard. I merely want to preserve that flexibility if a judge wishes to avail himself of it.
Will the hon. Gentleman clarify whether, under the system that he proposes, it is likely that more or that fewer drug dealers would be able to retain their assets?
I would hope that, under the procedure that we are discussing, exactly the same number of non-drug dealers would be able to retain their assets, and that exactly the same number of drug dealers would lose their assets. I am concerned not about drug dealers but about the innocent who may be put through this system with insufficient safeguards. We should not just be concerned about confiscating money from those who are guilty.
I am sorry, Mr. Gale.
Will the hon. Gentleman bear it in mind that the system comes into operation only when somebody is no longer innocent, because they have been convicted? This issue is not about the innocent—it is about the guilty.
The hon. Gentleman cannot have it both ways. The procedure under discussion is not a criminal one. The criminal procedure is when the individual is found guilty of the specific offence that triggers the mechanism of this process. The Minister has made it clear that we are discussing a form of civil recovery, albeit the confiscation mechanisms are unusual, because although there are civil recovery mechanisms later in the Bill, the confiscation mechanism under discussion is a hybrid.
Nevertheless, I always remember being told, when I appeared in court on civil matters and the person concerned had a criminal record, that even villains have rights. If we start moving away from that, we are making a serious mistake. Therefore, however villainous the individual may have been to have landed himself in this process, he is entitled, while the process is continuing—as it is a civil process—to the protection of the law. The civil standard of proof gives him the protection that he should have.
The hon. Gentleman makes a fundamental mistake. We are discussing a criminal procedure. It chooses to use the balance of probabilities, but it is none the less a criminal procedure.
That is an interesting point. I think that I said earlier that it is a hybrid procedure. If it is a criminal procedure, I do not think that criminal procedures should be based on the balance of probabilities or the civil standard of proof. That would be an extraordinary departure from established principles of law in this country. However, I have never understood that to be the case. If one looks at it, it is plainly a hybrid, or, at least, a civil procedure—it is not a criminal offence to have the assets, but one will lose them. To my mind, that is akin to a civil procedure.
I disagree totally and fundamentally with the hon. Gentleman. You can be a murderer in prison, and you can bring a civil action—[Hon. Members: ``Steady on.''] No, I think that ``you'' is correct. Suppose, Mr. Gale, that you were a murderer in prison, and you wished to bring a civil action against prison officers in relation to having been assaulted. The hon. Gentleman is not telling me that, just because you happen to be a murderer in prison, a lower standard of proof or, perhaps worse, a higher standard will be imposed on you to prove your case in relation to that assault. That is plainly nonsense.
Is not the difference between the two cases presented by the hon. Gentleman that the second is consequent on a conviction, and is not an entirely unrelated procedure? The murderer to whom he refers has rights, but they relate to an entirely different action. We are talking about an action that is consequent on a conviction that takes place immediately before the procedure occurs.
I disagree again with the hon. Gentleman. The reason for the Bill is the Government's desire and intention to widen the scope of confiscation so that it is further and further removed from the precise circumstances of the offence that give rise to the triggering mechanism. I would have greater sympathy with his point of view if there were a close link and nexus between the assets that were being confiscated and the crime that had taken place. The classic example of that is provided by the Drug Trafficking Offences Act 1986, which, before it was widened, took account of the precise assets or benefits accrued from the particular offence. That legislation was subsequently widened to take account of the history of the likely drug trafficking. As we have discussed, the merit of the Bill from the Government's viewpoint, which is a perfectly legitimate argument—
The hon. Gentleman makes an interesting point. He refers to the closeness of a nexus, but the relevant nexus is that between the crime and benefiting from it. How much closer can it be?
As we have already discussed, the nature of the triggering offences may be wholly unrelated to the assets to be confiscated. I shall give an example, which is hypothetical but could happen. Suppose a middle-aged lady was convicted of three minor shoplifting offences, and those offences benefited her by a few pounds at most. However, it is brought to the notice of the prosecutor that, in fact, the individual is strongly suspected, although she has never been convicted—
Yes—of having been involved in Brink's-Mat. This example relates precisely to the Al Capone or Capone mechanism that we were discussing last week. The prosecutor might say, ``Here is a golden opportunity for us. Although this person was convicted on minor matters from which there has been no real visible benefit, we are convinced that under the confiscatory procedure we will be able to recover millions of pounds of illegally acquired assets.'' I have no objection to that. It is the merit of such a huge, wide process. However, it reinforces the fact that we should be careful about the abrogation of the ordinary civil rights of that person.
I am not persuaded by that argument. I should be interested in receiving enlightenment from the Minister. I do not understand the procedure to be about that. The hon. Gentleman will correct me if I am wrong, but the confiscatory mechanism triggers a system by which it is possible to recover assets that are not related directly to the particular offence, on the basis that the person has a criminal lifestyle. It is the identification of the criminal lifestyle that gives rise to the confiscation.
We are all getting our knickers in a twist over the balance of probabilities because it relates to whether the defendant has a criminal lifestyle. The court must decide on the balance of probabilities whether the defendant has a criminal lifestyle, which as we discussed last week is difficult and absurd. That the matters under clause 4 must be decided on the balance of probabilities is a rum sort of triggering mechanism. The court must first decide whether the defendant has a criminal lifestyle and then whether he benefited from the conduct. If the chap does not have a criminal lifestyle, the court must decide whether he benefited from the criminal conduct. I do not understand why it is necessary to make the judgment whether the defendant has a criminal lifestyle, given that in either case it will be a matter of examining his criminal conduct and whether his assets can be taken away. If—
I am concerned about anybody, woman or man, with three shoplifting convictions, when all of a sudden horrible draconian powers will be in place to seize her million of pounds' worth of assets. If the person cannot legitimately show where she got all those assets from, where on earth does the hon. Gentleman think that they came from? What right has he to protect that poor little woman with her luxury villas?
We have heard robust defences from the hon. Members for Wrexham (Ian Lucas), for Wellingborough and for Birmingham, Hall Green (Mr. McCabe). The crux of the matter is the idea of Opposition Members that if an individual has assets, he will then have to justify where they came from. On the basis of minor offences and the presumption of a criminal lifestyle, does my hon. Friend agree that that belief is a fundamental misunderstanding of the state's role towards an individual? That is the core of the debate that we are having today and that we will no doubt have until the middle of February.
I agree entirely. There is clearly a major philosophical disagreement, which was apparent on Second Reading. I have every sympathy with the idea of trying to identify criminals and confiscate their assets. However, I am conscious of the presumption that it is normal to assume that somebody who possesses assets does so legitimately, unless that can be demonstrated to the contrary. That has been an established rule in this country for a long time. The burden is normally on people who wish to say that assets are illegally obtained to prove that, otherwise the burden of proof could be reversed in criminal proceedings and, indeed, all proceedings. Every person would have to spend their lives justifying everything that they do. That is not a principle that is compatible with maintaining civil liberties. On that theme, I differ entirely from some Labour Members.
The hon. Gentleman is correct that all the matters are interrelated and that the confiscation procedures, and the attached burden of proof, will apply to those who are deemed to have a criminal lifestyle as well as persons who are subject to confiscation because of a case before a court. However, my hon. Friend the Member for Wellingborough is right, because we are discussing the amendments. Amendment No. 30 would change the burden of proof applied to those who are deemed to have a criminal lifestyle and to all confiscation cases. The matters are interrelated, and the would apply more widely than to those who are deemed to have a criminal lifestyle.
I accept the Minister's point, but this is the Government's Bill. The burden of proof is on the Government to satisfy me—on the balance of probabilities, if not so that I am sure—that the Bill will not affect civil liberties. It was the Government's choice to word clause 6 as they did. He will appreciate that they could have kept the existing system and written a new clause to cover the wider situation, but they did not choose to do that. They have mixed the two matters together.
Short of rewriting the entire Bill—which is beyond my ability while I am also dealing with the Government's terrorism legislation on alternate days—I can only do my best to highlight problems. This problem is readily curable by substituting the civil standard of proof for the balance of probabilities, which is what I invite the Committee to do.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: No. 31, in page 4, line 5, leave out `a balance of probabilities' and insert
`the standard applicable in civil proceedings'.—[Mr. Grieve.]
Question put, That the amendment be made:—
The Committee divided: Ayes 6, Noes 16.
On a point of order, Mr. Gale. I am sorry to suggest anxiety about the clause, but it raises at least one matter that is unrelated to the amendments: the fact that the Crown court has been selected as the forum in which to resolve and determine confiscation cases. I seek clarification on that matter from the Government.
In short, the Government have decided that the proceedings should be dealt with in the Crown court. I have no strong view on the subject, but anxieties were expressed about whether the Crown court has the expertise to deal with such applications. I foresee that it could acquire that expertise, but such proceedings usually take place in the High Court, and that is particularly important when the interests of third parties must be balanced. Will the Minister clarify why the Crown court was chosen as the forum for such cases?
We have heard representations that such matters should be dealt with in the High Court. We take the same view as the hon. Gentleman: if the Crown court is not capable of hearing such cases, we can provide it with the wherewithal—including training—and the capacity to do so. We want confiscation proceedings to be widely available, and we do not think that that will be possible if they can be heard only in the High Court. [Interruption.]
You have ruined the reputation with which others have tried to brand me by accusing me of being a mildly spoken man, Mr. Gale. I am flattered, and I shall go away and blush.
Confiscation has always been dealt with by the Crown court, but restraint and receivership proceedings, which are often complicated, are often heard in the High Court. The Government received representations on the subject, and carefully considered whether the Crown court, which would make confiscation proceedings more widely available, could provide the necessary expertise.
I have a friendly suggestion. Is it wise or necessary for subsection (4)(c) to give a judge the burden of deciding whether yes, the defendant has a criminal lifestyle or no, he does not? It would be better and more consistent with the purpose of the Bill if subsection (4)(c) were amended to read,
``if it does not decide that he has a criminal lifestyle''.
It is not the Bill's purpose to place a burden on the judge to decide that the defendant does not have a criminal lifestyle. The Bill's purpose is simply to allow the judge to decide whether the defendant has such a lifestyle, and if so, whether the provisions are triggered. If the judge is not sure whether the defendant has a criminal lifestyle, the provisions will not be triggered and the defendant will be saved. However, the judge should say that he has not decided that the defendant has a criminal lifestyle. The problem that may follow if he is forced to make a contrary decision is that a precedent will have been set. Although at that level the precedent would not be binding, and new evidence would unsettle it, the next judge who came to consider the next defendant would have to deal with a contrary finding if he wanted—on the strength of only one offence, as it was likely to be the intervening offence—to decide that the defendant had a criminal lifestyle. It might be a shade easier to appeal against the second judge's decision when it is set against a decision to the contrary by the first. I see no reason for creating that difficulty or causing that problem.
I hope that I have put the case succinctly. It is better if no decision is made by the first judge that the defendant does not have a criminal lifestyle against which the second judge's decision that he does can be assessed.
Mr. Hawkins rose—
If I inadvertently invited the reopening of that debate, I am glad that you were smart enough to block it off, Mr. Gale.
I have made my point, and I hope that it is helpful. It does not necessarily require a response now, but I invite the Minister to consider it.
I hope that a further point will not require too much indulgence. The requirement that precedes subsection (4)(c) is in subsection (4)(b). Under subsection (4)(b), if the court decides that the defendant has a criminal lifestyle, it must decide whether he has benefited. If it does not decide that he has a criminal lifestyle, it must decide whether he has benefited from his particular criminal conduct. What will happen if the court decides under subsection (4)(b) that he has a criminal lifestyle but has not benefited from his criminal conduct? Ostensibly, that would not trigger subsection (4)(c), which is triggered only if the decision is that he does not have a criminal lifestyle. Again, I do not require or demand an answer now, but I invite the Minister to consider those points and whether the provisions might be sharpened up.
Order. The hon. Lady's first point was extremely narrow, but her second was much broader and would reopen a debate that the Committee has already had. If the matter is to be debated further, it must be debated on the Floor of the House at the appropriate time, on Report.
I am mindful of your comments about reopening the matter, Mr. Gale. Do Members have the opportunity to say a few brief general words about clause 6 without reopening previous debates?
This is a clause stand part debate. I have made it abundantly plain to the Committee that this Chairman will permit wide discussion of a clause at the beginning, in the middle or at the end of its consideration, but not at all three points. If the hon. Gentleman has new points to make that have not been referred to at all during the debate, I shall be interested to hear what he has to say, but I have studied the clause extremely carefully and am satisfied as Chairman that the matters arising from the clause, with the exception of the point that the hon. Member for Beaconsfield made, have been exhaustively discussed.
On the basis that we have a further 433 or more clauses to go, I suspect that I may find an opportunity to make my point when we discuss one of those.