Serious Crime Bill [Lords]

Given the powerful and persuasive speeches made by Members—solely on this side of the Chamber, I might observe—my remarks will be brief, but seriously meant. It is often said that the road to hell is paved with good intentions, but so too is the road to authoritarianism. I use that word deliberately, because this Bill is an example of mission creep. Each individual proposal that appears reasonable in relation to criminal justice legislation runs the risk, even in a mature democracy, of going down that road. The Bill is another example of that. It is also said that men can sit on the fence so long that the iron enters their soul. In the case of the Government, they have sat on those Benches so long that expediency has entered their soul. Expediency can also lead us towards authoritarianism, and I suspect that that is what underlies these proposals. Before I became a Member of Parliament, I spent the better part of 30 years practising almost exclusively in the criminal courts, defending and, in latter years, mostly prosecuting. Like some of my hon. and learned Friends, I dealt with serious criminal offences and I was conscious, when I presented a case on behalf of the prosecution, that if I were to secure the conviction of an individual I had to ensure that the case I made would be subject to a high burden of proof. I had to jump through certain hoops to prove the prosecution case. Those who investigated the case—the police officers and the Crown Prosecution Service—also had to jump through various hoops to bring the case home. That was right and proper, because of the gravity of imposing a criminal sanction on someone, be they a minor criminal or a Mr. Big. That is a fundamental principle. In the last few years I was in practice, I was concerned by the repeated complaint from experienced detectives involved in the investigation of serious crime that they were often obliged to curtail the extent of their investigations. As a prosecuting lawyer, I might suggest that they needed to obtain further information to tie up the loose ends, but they sometimes could not do so because of budgetary constraints. That is a real problem for police forces. Against that background, my great fear is that instead of ensuring that a case is watertight and will end in a conviction, police officers and prosecuting officers will be tempted to look at this Bill and say, ““No, we will take the expedient route and use the civil sanction””. It is because it is expedient that we should be very wary of it. The specific points have already been well made by hon. Members in the course of the debate, but I accept that there are times when the use of the civil standard of proof can be appropriate in criminal proceedings. However, the key test is that those occasions should be exceptions to the rule and very specifically defined. Many of us will have been involved in confiscation proceedings, under the Proceeds of Crime Act 2002 and, before that, the drugs trafficking provisions. The point of those provisions is that they are specifically limited to kicking in only when there has been a criminal conviction to the proper, high standard. That is a very different scenario from the pre-emptive measure envisaged in the Bill. It is the lack of specificity that is a real flaw in part 1. That view is shared by many outside organisations, especially Justice, which is no mere local lobby group. It is the UK section of the International Commission of Jurists and speaks with some authority. I would be saddened if our criminal justice system, which is often held up as a beacon, were to become tarnished in the eyes of the international legal community. Of particular concern, as has already been mentioned, are the definitions in clause 3. It expressly removes the requirement that a person must have actually intended to facilitate a serious criminal offence or even to believe that his actions would do so. There is an interesting contrast between the vagueness of the definitions in part 1 and the much more specific definitions in part 2, which follows on from the Law Commission’s proposals and is altogether more useful. Justice points out that any number of third parties could be caught by clause 3 as unwittingly facilitating the commission of a serious offence. For example, is the taxi driver who drives passengers to a destination where they carry out a serious offence facilitating that offence? If a computer retailer sells equipment to someone who uses it for drug dealing or human trafficking, would he be caught by the provision? If a landlord rents premises to a tenant who uses them for the manufacture and storage of drugs, would he be caught? That will be a risk for businesses, especially those that have no legal obligation—or indeed right—to inquire about the use of otherwise legitimate equipment. It is also a risk for the small person, who may not sensibly be in a position to make such inquiries. It may be argued that the definitions in clause 5 will oblige the court to disregard activity that the defendant shows to be reasonable, but that is pretty vague. Moreover, that in effect puts the defendant in the frame, according to the civil standard of proof—like the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), I am not at all satisfied that such matters will be dealt with according to the criminal standard—and the result is that a reverse burden of proof is placed on the defendant who chooses to assert his innocence and demonstrate that what he did was reasonable. That is wholly unacceptable. The scope of the provision is too wide, and Justice has pointed out that it mixes ASBOs with some aspects of control orders issued under the prevention of terrorism Act. The UK courts have found that ASBOs are civil rather than criminal in character, but the status of control orders has not yet been fully determined. The House of Lords has yet to decide the matter, and it seems inappropriate for the Government to be creating the sort of hybrid that I have described while we still await clarity in respect of control orders from the highest court in the land. That determination may very well affect the interpretation of the orders proposed in the Bill. As has been observed, the Government domesticated the European convention on human rights in our law, and most informed observers consider that it is most uncertain that the European Court of Human Rights will agree that SCPOs are civil in character. Indeed, there are some doubts about whether it considers ASBOs to be civil in character, but the proposed orders are more draconian and so are more likely to be regarded as criminal. The Government are going down a most dangerous route with this Bill, and we must be very wary. I know that the fact that the Opposition do not intend to vote against the Bill will not be taken as an indication that we believe that all is well with it. The Minister said that we should look in Committee at the use of intercept evidence, and the Bill’s proposals in that respect are good. My experience leads me to believe that they are worthy of sensible consideration, but I hope that he will be open minded about the much more troubling elements of part 1. We need to examine them very carefully before we commit ourselves to anything.