Clause 34

Serious Crime Bill [Lords] – in a Public Bill Committee at 4:30 pm on 3 July 2007.

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Proceedings in the High Court

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I beg to move amendment No. 18, in clause 34, page 22, line 35, leave out ‘civil’ and insert ‘criminal’.

Photo of Joe Benton Joe Benton Labour, Bootle

With this, it will be convenient to discuss the following amendments: No. 19, in clause 34, page 22, line 36, leave out subsection (2).

No. 20, in clause 35, page 22, line 40, leave out ‘civil’ and insert ‘criminal’.

No. 21, in clause 35, page 23, line 1, leave out subsection (2).

No. 22, in clause 35, page 23, line 3, leave out subsection (3).

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

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.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 4:45, 3 July 2007

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.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley

Is not the point—perhaps this goes back to this morning’s debate—that for this to be a criminal proceeding, a crime must have taken place, and we must be considering a criminal case? In fact, this is about a prevention order, so it must be a civil matter. Surely I have not misunderstood.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Our primary concern is with the consequence of stating that the matter is civil rather than criminal. Looking just at the Bill and leavingaside McCann and the underlying judgments, the consequence is that the standard of proof is different—it is the balance of probabilities, not beyond a reasonable doubt. Also, although less so than before the Criminal Justice Act 2003, fundamentally different rules are applied to hearsay and there are other differences between the jurisdictions. Once we assert in the Bill that it is a civil proceeding, if we do not apply McCann we have a different standard of proof. That is what is objectionable having regard to the severity and the onerous effect of the orders and everything to do with renewal.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

Would my right hon. and learned Friend agree that it is more complicated even than that? Not only do we have the indication of the McCann judgment compared with what the clause says, but there is also what the Minister has said during our deliberations in Committee, namely that the standard of proof should be almost identical to the criminal standard. There is an extra layer of confusion, which we ought to resolve by changing the Bill.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That is true. Similar language was used in the other place, where the Minister said “virtually the same”, “nearly the same” and so on.

Another important point, which has been made in this Committee before and which partly answers the hon. Member for Colne Valley, is that we need to look at paragraph 3.4 on page 32 of the Green Paper, which was published after the McCann judgment. It says:

“We believe these...standards usefully reflect the different levels of threat posed to society by terrorism and anti-social behaviour. In the case of organised crime, the potential harms are somewhere between, and we would envisage stating on the face of the legislation that to impose an order the courts should be satisfied on the balance of probability that the test is met.”

Let us pause there; this is very important. We appear to be putting in the Bill precisely what the Government say in page 32 of the Green Paper that they want to put in. The motive for that is stated explicitly. It is in order to impose a test and that

“the courts should be satisfied on the balance of probability” that that test is made. When the courts come to construe this, they will start by looking at the language of the Bill. They will see that the burden of proof is a civil burden; then they will ask, “What about McCann?” They will then go—or feel able to go—to the Green Paper, because it pointed, at least at one stage, to the Government’s intention.

They will see that the Government have taken account of the McCann judgment and have decided that they want to disapply it, and that they intend to do so in the Bill. Lo and behold, there is language in the Bill that purports to have that effect. I should have thought that the courts would be very constrained not to hold that the standard of proof was that requiredin the ordinary civil case, namely the balance of probability.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I have often been asked by the right hon. and learned Gentleman to read things into the record because, he says, that is extremely importantin terms of how the courts will interpret the Government’s intentions behind legislation. The right hon. and learned Gentleman has heard me say on numerous occasions—Baroness Scotland said this in the House of Lords as well—that we expect the civil standard of proof required under clause 1(1)(a) to be as close as to be virtually identical to the criminal standard of proof; in other words, beyond reasonable doubt. We have said that the McCann judgment will be applied on a sliding scale; the standard here will be “beyond reasonable doubt”, but in other parts of the Bill, it might be “on the balance of probability”.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I have no doubt that, when appropriate, the courts will listen carefully to what the Minister has said. It is important, however, to keep in mind that the courts, as a general rule, look only to the words of Ministers when there is ambiguity in the language of the statute, but it is far from clear that there is ambiguity in the language of the statute before us; the language is clear and the statute is being enacted post-McCann. In other words, it could well be argued that we are seeking explicitly to depart from the consequences of McCann. That was the point made by my hon. Friend the Member for Hornchurch. I think that he is right.

I recognise the alternative argument: the concept of the civil standard of proof being applied on a sliding scale to such cases approaching criminal ones. However, that arises, first, if the court thinks that the language is not plain, and secondly, if it thinks that the principles set out in McCann apply to a different class, but not wholly dissimilar kind of order. We are making some assumptions about that. That takes me to the real  point on which I want to focus. Given that the Minister’s purpose, as I understand it, is to depart from the language of the Green Paper and to assert the criminal standard, why on earth are we not saying so? I come back, time and time again, to my underlining theme—I am sorry if I am being a bore—that it is the business of Parliament, of which this Committee is a part, to state what it intends. If it intends to protect the citizen, it should say so in terms and not leave a cloud of ambiguity and uncertainty hovering around such matters. I ask the Committee to think again.

Incidentally, if I had had the opportunity, I would have made this point during the Prime Minister’s statement: if we are giving authority to Parliament over the Executive, it is all well and good, but actually none of his proposals will be of much relevance, unless or until Members of this House begin to assert their independence from their own Whips Offices. I did that years ago!

Photo of Joe Benton Joe Benton Labour, Bootle

Order. I do not think that we should have a repeat of this.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am not just semi-detached; I am in a different estate.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

Just be careful; you are from Lincolnshire.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Lincolnshire is a very independent-minded county, as we saw to our cost four or five days ago. But that is a different matter.

The point is that if I am right about this—and I think that I am—it is the business of hon. Members to assert those principles, notwithstanding advice from their Front-Bench colleagues. It is in that collegiate spirit of trying to capture in the votes that I hope the Committee will approach this matter.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon 5:00, 3 July 2007

It is in the spirit of asserting my independence as a Back Bencher that I disagree, with diffidence, with my right hon. and learned Friend. The Minister will no doubt tell us that the courts are likely to apply a higher standard of probability to the findings of fact in fraud or criminal cases, for example. I concede that almost certainly that will be the case. Under the common law, the courts have long operated a sliding scale of probability, depending upon the nature of the allegation. I would be astonished if the courts decided, under clause 1, to apply a different test.

At the risk, however, of having already gone too far in disagreeing with so venerable a colleague as my right hon. and learned Friend, I am about to add a “but”. I agree with him that a standard of probability is still a standard of probability, but whereas a jury would be asking, “Are we sure that this man is guilty of this crime? Are we certain that he has done what the prosecution says he has done?”, a judge will ask himself or herself an entirely different question: “Even though this is a serious allegation, do I have a high degree of  confidence that it is more likely than not that he has done what the director of the Serious Fraud Office, for example, has said?”

That test cannot be converted into the test of reasonable certainty that a jury applies in a criminal case. It is simply playing with language, a matter of pure semantics, to suggest that the test adopted in McCann is equivalent or analogous to the test adopted by a jury in a criminal court.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

My hon. and learned Friend is entirely right, but the test could be put slightly differently. In a criminal case it is, “Are you sure?” In this case, a judge would be saying “Am I virtually sure?” Those are not the same.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

No, because in one case the High Court judge can say to himself, “I am not sure that this man has done what the director has said.” The directors of Revenue and Customs or the Serious Fraud Office are the type of people who will come to a judge asking for an order. The judge will be able to say, “I am not sure that he has done it, but I am confident that it is highly likely that he has,” and that will be sufficient. That will be the test, and I concede to the Minister that, at least when making the final inference on criminality, a judge is likely to consider whether the person in question is highly likely to have done what the director says, not whether he is sure. That is not the same test, and, with respect, whatever the Minister reads into Hansard, which will be looked at only in extremely rare cases under Pepper v. Hart, I do not suppose that his words—

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

The only reason why I read it into Hansard was that the right hon. and learned Member for Sleaford and North Hykeham told me in relation to a number of other matters that it was extremely important for me to read such things into Hansard. I am not a barrister and I do not know about courts, but I was told that that was an important thing to do.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

My right hon. and learned Friend is not right about everything.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

I am. He is right about most things, but it is unlikely that a court would resort to Hansard to interpret what seems a straightforward clause that it could make sense of under the ordinary rules of common law and statutory interpretation.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I am following carefully my hon.and learned Friend’s arguments on this extremely important point. Not being a lawyer, I had understood that there was a civil test and a criminal test—one on the balance of probabilities and one on proof beyond reasonable doubt. The Minister has referred to a sliding scale and my hon. and learned Friend says that that concept exists. My concern about the Minister’s remarks and the comments in the Green Paper is that the sliding scale works in reverse of what one would expect, so that the more serious the offence, the more likely it is that a lower standard—

Photo of Joe Benton Joe Benton Labour, Bootle

Order. That was a slightly lengthy intervention.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

I understand my hon. Friend’s concern, but, with respect to him and to my right hon. and learned Friend the Member for Sleaford and North Hykeham, I do not think that that is a serious problem. There will be a sliding scale of probability and when considering the criminal aspects of an allegation the judge will ask himself, “Is it highly likely that this man did it?” However, he will not ask himself, “Am I sure he did it?” Those two tests are fundamentally different. One cannot equate one with the other. There is a gulf a mile wide between them.

The reason why our criminal trial process insists on the latter test—namely, “Am I sure he did it beyond reasonable doubt?”—is to avoid the many terrible miscarriages of justice that have been brought to the public’s attention during the past 20 or 30 years. Certainty—being sure beyond reasonable doubt—eliminates the prospect of injustice, especially when the penal consequences of such a finding are so serious. It is important to understand that there is a genuine difference.

The contention is made that the order is not a penal statute. It is suggested that it is a civil order and that it would be an exercise of civil jurisdiction. The Minister needs to consider closely the advice that he receives. The reality is that the European Court of Human Rights will limit the number of consequences ordinarily following upon conviction that can be imposed as a part of a civil process. There will come a point when the Court will say, “You are doing so much to this person, based on the civil standard of proof, that although you call it a civil process it is in truth penal.”

The European Court of Human Rights has already said that about the legislation of other European countries. In my judgment, there is a real risk that the Bill will be determined to be a penal statute because of the number of consequences that could flow froman ordinary conviction. [Interruption.] Before the Minister or the hon. Member for Colne Valley intervenes—in fairness, I should give way first to the hon. Lady—may I make a final point?

The consequences of conviction would ordinarily mean restraint upon one’s liberty and peril to one’s assets, which can be seized. Those consequences will flow also from the order. It is often said in court that imprisonment has two purposes: a punitive and a preventive one. One could therefore apply the civil element to imprisonment. One could provide in statute that although the court would be allowed to imprison a person, it would be a civil proceeding.

If we went that far, I have no doubt that the European Court of Human Rights would say, “That is just playing with language. That is applying the civil term, whereas in substance, this is a criminal penalty.” I believe that this provision is in danger of a similar finding, because in substance it is penal. Every sentence of imprisonment has a preventive element. This has a preventive element, but it also has penal consequences.

Photo of Kali Mountford Kali Mountford Labour, Colne Valley

I am grateful to the hon. and learned Gentleman for giving way. I think that he is attempting to answer my question before I put it. He  keeps saying, “Has he done it?” and asking whether the court will answer that question. The court would have answered that question when the person appeared before it for the original offence. The order is about future behaviour, and whether the order will prevent ongoing criminal behaviour. It is not punishment for the original crime. Is that not the case?

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

Illumination dawns about what the hon. Lady’s problem is. [ Laughter. ] I do not mean generally, but in relation to the Bill. If she returns to clause 2, she will see that the individual who is to be the subject of an order must have

“committed a serious offence in England and Wales”.

That is one thing. The proof of commission of a serious offence, as I recollect, is that such a person has been convicted of the offence.

However, subsection (1)(b) states:

“has facilitated the commission by another person of a serious offence”.

That does not require a conviction. Nor does subsection (1)(c), which states:

“has conducted himself in a way that was likely to facilitate the commission by himself”.

That is a meaningless subsection: I do not know how somebody conducts themselves in a way that is likely to facilitate the commission by themselves of a criminal offence. However, that does not require a conviction, so I say to the hon. Lady that under the Bill, people can be brought to court to be subject to a serious crime prevention order who have never been convicted of a criminal offence in their lives.

It would have to be proved—it would have to be established—that in the past the person had, for example, conducted himself in a way that was likely to facilitate the commission by another person of a serious offence, but he would not have had to be convicted of such conduct.

Photo of Joe Benton Joe Benton Labour, Bootle

Order. I am sorry to interrupt the hon. and learned Gentleman. I do not want to curtail the debate and I want to allow hon. Members to exercise as much freedom as possible, but it occurs to me that we are going round the houses a bit. Points are being made over and over again. I appeal not only to the hon. and learned Gentleman but to the entire Committee to try not to be repetitive, because it is clear to me in the short time for which the Committee has been sitting this afternoon that some of the points being raised were raised on previous occasions when I was in the Chair.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

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.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons) 5:15, 3 July 2007

When the Minister responds, I shall want to be clear on the issue of the sliding scale. I approach the issue not as a lawyer, having understood until I became a member of the Committee that the burden of proof was either the criminal one or the civil one that is based on the balance of probabilities. We have debated the sliding scale, but I would like the Minister to make clear to me, a non-lawyer, exactly what it means. As I understand it, it was introduced by McCann.

Photo of Crispin Blunt Crispin Blunt Opposition Whip (Commons)

I might be wrong—it may have existed before. Nevertheless, I should be grateful if the Minister gave us some guidance on the meaning of the sliding scale and tell us where it comes from in the Lords. It is a new concept to me. If the sliding scale comes just from McCann, the Minister can say so, and if there are other underlying sources I should be grateful for an explanation of them.

If we are to have a sliding scale, we need to consider in which direction it goes. Does it mean that, the more serious the offence, the closer the burden of proof  comes to the civil standard—the balance of probabilities—and that for less serious offences the burden of proof is the higher, criminal one? Serious potential offences might justify a lower standard of proof because of the threat that they present to society. That is where I understand us to be at the moment. Terrorism prevention orders are assessed on the balance of probabilities, whereas, under the McCann judgment, antisocial behaviour orders require a higher standard of proof.

I ask the Minister to try to ensure that, when we come to a decision, I as a non-lawyer am no longer unclear about the situation, because I suspect that one or two of the more learned hon. Members in the Committee might share my lack of clarity. I am quite certain that the Minister will be able to give an explanation that will be clear to a layman.

Photo of Joe Benton Joe Benton Labour, Bootle

Before the Minister replies, let me say that it will be in order for him to do so, although the matters in question have already been referred to. I ask the Minister to keep his replies brief in relation to those matters on which he has already responded.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I will try to do that, Mr. Benton, and if I do not you will no doubt quickly call me to order. Let me thank my hon. Friends and Opposition Members for their contributions to the debate, because they went to the heart of this aspect of the Bill. We have been over much of the ground already, but it is relevant to clause 34 and indeed clause 35. Let me see whether my remarks can help, although at the end of the day it might well be that there is simply a difference of view in the Committee. I say that as someone who is a non-lawyer as well. Sometimes people make judgments rather than having scientific views on whether two plus two makes four.

We have already discussed the civil nature of the orders at some length, so I shall not go into great detail on amendments Nos. 18 and 22, which would change their nature. Suffice it to say that the orders are preventive, not punitive, so that making the proceedings criminal would be hugely inappropriate.

The point made by the hon. Member for Reigate goes to the nub of the matter and I shall come to it in a moment. The appropriate standard of proof is the flexible civil one, which we expect—in relation to the first element of the test in clause 1—to be the same as the criminal standard established by the House of Lords in McCann.

Mr. Hogg rose—

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I just need to develop my explanation, and then I shall give way to the right hon. and learned Gentleman. The sliding scale was not introduced by McCann. I know that he did not mean to do so, but, with respect, the hon. Member for Reigate got it the wrong way round. The more serious the allegation, the higher is the standard of proof. Involvement in serious crime is a serious matter, and will require a very high standard of proof. The sliding scale is a general principle of civil proceedings.

The point is an important one, so with permission, Mr. Benton, I should like to indulge in a slightly  lengthier explanation. It is virtually certain that the standard of proof that would be needed under clause 1(1)(a) to satisfy a High Court

“that a person has been involved in serious crime (whether in England and Wales or elsewhere)” would be almost the same as the criminal standard. In other words, it would have to be proved beyond reasonable doubt.

Clause 5(2)(a) refers to

“any act that the respondent can show to be reasonable in the circumstances”.

In those cases we would expect the standard of proof to be the balance of probability. Therefore it is perfectly reasonable for a judge in the High Court to distinguish between those two parts of the Bill. As the right hon. and learned Member for Sleaford and North Hykeham pointed out, the sliding scale is not a novel idea for the High Court. It uses it as a matter of course in civil proceedings. It is not new; it has not arisen as a result of McCann. McCann has tried to clarify the situation with respect to civil orders.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I understand the Minister to say that in the majority of cases where the consequences are serious he expects something like the criminal standard. He will say that that follows from the ordinary principles of law. But he must look at page 32 of the Green Paper. The Minister says that it his intent that prevails and I’ll accept that for these purposes. But the Green Paper was drafted by the lawyers, and they thought that one could get the balance of probability as the test, notwithstanding McCann. That is a serious problem which he has to face.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

That may have been in the Green Paper, but I am trying to make clear to the Committee what the Government expect, not as a result of what was in the Green Paper, but as a result of this Bill and the various comments that I and others have made here and my noble Friend Baroness Scotland made in the other place.

I should like to quote from the McCann judgment. Lord Steyn said:

“Having concluded that the relevant proceedings are civil,in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary”.

Lord Hope said:

“But it is not an invariable rule that the lower standard of proof must be applied in civil proceedings.”—

Again, the point that the hon. Member for Reigate made—

“I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.”

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I am grateful to the Minister for giving way. I understand that he is attempting, as did his ministerial colleagues, to provide as much clarity as possible. But surely when people come to look at this legislation they will start with the Bill and then,  perhaps, they will look at what he said in Committee. He said almost everything that the amendment sets out to achieve. I simply do not understand, and I am fairly sure that people outside the House will not understand, why he cannot just put what he has said, or some variation of it, into the Bill. There is confusion between what he relied on in clause 1(1)(a), which is to say that the High Court must be satisfied, and saying that the civil standard of proof must be applied. The simple way around this is to set out exactly what the Government wish the courts to do.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I shall simply repeat what we have said ad nauseam. There is a difference of view. We do not think that it is necessary for that to be on the face of the Bill. I have laid out what the Government expect with respect to the standard of proof and serious crime prevention orders. Indeed, even the hon. and learned Member for Torridge and West Devon has accepted that High Court judges are used to dealing with the sliding scale with respect to the standard of proof in civil proceedings. That is what we would expect. The McCann judgment clarified that the more serious the offence, the higher the standard of proof that one would expect to be necessary for the court to be convinced of anything. With respect to clause (1)(1)(a) one would almost expect it to be virtually identical to the criminal standard.

Photo of Geoffrey Cox Geoffrey Cox Conservative, Torridge and West Devon

I agree with almost all of what the Minister said, except that even the heightened civil standard is nowhere near the criminal standard of proof. The heightened civil standard simply asks, “Is it much more likely than not?” The criminal standard asks, “Is it certain?” The ordinary civil standard is, “Is it more likely than not?” Hon. Members can work out for themselves the differences between those tests, but that is the situation.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

The hon. and learned Gentleman makes his point and people will have to make up their mind where they stand on the issue. As I said, our view is that the standard of proof is a sliding scale, which is flexible, and which will be applied appropriately by the High Court.

To finish my remarks, the key question in determining whether a measure is civil or criminal is whether it is preventative or punitive. As Lord Hope made it clear in the McCann case, if a measure is preventative it is likely to be classified as a civil measure. The reason why the Government believe that the orders are civil measures goes to the heart of the Bill which, as my hon. Friends have said in our debates today, is about preventing serious crime, supporting victims and putting them first.

The hon. Members for Taunton and for Hornchurch talked about penalties. These measures are not penalties or punishment for past crimes; they are about preventing crime, and harm, in the future, and the vast majority of our constituents would want us to put in place measures that do that.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

It is clear that there is a divergence of view, and I am not going to prolong the debate any further to try and bridge the gap, because it  is there. It is fine for the Minister to say, “This is about the prevention of crime,” but we need something that is clear, that will work, and which the courts will ensure is robust; that is what the amendment would ensure, and I am disappointed that the Minister has turned his face against it. The best way for the House to ensure that there is clarity for the courts in understanding how a Bill is intended to operate in practice is by the language on the face of the Bill and I am sorry that the Minister does not accept that logic. I will test the Committee’s appetite for the provision because it is so important, by dividing the Committee on the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Division number 20 Nimrod Review — Statement — Clause 34

Aye: 7 MPs

No: 8 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Order No. 67, That the clause stand part of the Bill.

Question agreed to.

Clause 34 ordered to stand part of the Bill.