Serious Crime Bill. Liberty s Briefing and Amendments for Committee Stage in the House of Lords (Part I)

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1 Serious Crime Bill Liberty s Briefing and Amendments for Committee Stage in the House of Lords (Part I) February 2007

2 About Liberty Liberty (The National Council for Civil Liberties) is one of the UK s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. Liberty Policy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent funded research. Liberty s policy papers are available at Parliamentarians may contact: Gareth Crossman Director of Policy Direct Line: GarethC@liberty-human-rights.org.uk Jago Russell Policy Officer Direct Line JagoR@liberty-human-rights.org.uk 2

3 Introduction 1. There is no doubt whatsoever that serious crime causes human misery and massive cost to society (financial and otherwise). Recently uncovered people smuggling operations have, for example, shown the horrific, sometimes lethal, conditions that people are forced to endure at the hands of smuggling rings. 1 The state has a moral responsibility to take steps to combat serious crime. What these individual steps should be and where we should allow them to take us in the long-term is, however, an entirely different matter. This is where Liberty sometimes, though not always, 2 parts company with the Government. 2. Liberty s proposed amendments are not designed to undermine the ability of the state to tackle serious, organised crime. Instead, we hope they will help Parliament to scrutinise whether the proposed measures in the Bill are really necessary and whether they are really likely to work. We also hope they will give parliamentarians the opportunity to debate whether serious crime could be tackled in a way which does less damage to our democratic values, our human rights and the rule of law. 3. The amendments proposed in this briefing relate to Part I of the Bill. Part I continues the now familiar attacks on the foundations of our criminal justice system: jury trials, the presumption of innocence, and the right to a fair trial. 3 It introduces the headline new measure - the Serious Crime Prevention Order, "gangster-asbo or even GASBO. This measure is not really all that new but rather a hybrid of control orders and ASBOs. We fear that this latest legal shortcut will be as unfair and ineffective as both of these predecessors. Liberty was delighted about the strength of opposition to these unjust measures. We hope that these are translated into concrete changes during the remaining stages of the Bill. *** We agreed, for example, with the setting up of the Serious Organised Crime Agency (SOCA). Previously the UK had a tradition of semi-independent devolved regional policing bodies which made it difficult to optimise the use of resources and information in order successfully to combat complex national and international criminal activity. 3 In place of this, the Government promises lazy platitudes: Simple, Speedy, Summary Justice and Rebalancing the Criminal Justice System in Favour of the Law Abiding Majority. 3

4 Removing SCPOs from the Bill Amendment 1 Part 1 (Stand Part) Part 1 stand part Schedules 1 and 2 stand part Effect 4. This would remove Part 1 of the Bill, with the result that serious crime prevention orders would not be created. Briefing 5. Part 1 of the Bill would create the Serious Crime Prevention Order ( SCPOs or Orders ). SCPOs are civil orders and can impose a broad range of prohibitions, restrictions or requirements on individuals or businesses. They could last for up to five years and could be renewed regularly. Breach of the Order would be a criminal offence carrying a sentence of up to five years imprisonment. This type of civil order, breach of which is a criminal offence, has become a familiar legislative trick of this Government. It was used with ASBOs under the Crime and Disorder Act 1998 and later with control orders under the Prevention of Terrorism Act Its target in this Bill is serious crime and there has been recent talk of creating yet another new breed of orders to deal with violent crime (Violent Offender Orders or VOOs). 5 Before long we fear that there will be no area of criminal or quasi-criminal behaviour which cannot be dealt with by a civil order rather than through the criminal justice system. We urge parliamentarians to take stock of this worrying trend and to ask themselves whether they are content to allow the criminal justice system in this country to be eroded by these kinds of legal shortcuts. 6 4 The Constitution Committee has given further recent examples in its excellent report on the Bill: 2 nd Report of Session , Serious Crime Bill, HL Paper 41 5 Blair wants super-asbos for violent thugs, Sunday Times, 14 th January 2007, 6 Parliamentarians may, for example, consider such powers justified in the case of low-level criminality 4

5 6. Liberty s concerns about these Orders are explained in detail in our Second Reading briefing. 7 In outline, they include: This new breed of civil order, breach of which is a criminal offence, is designed to enable the state to avoid the full rigours of a criminal prosecution while also being seen to tackle certain categories of social evil (whether anti-social behaviour, terrorism or, now, serious crime). 8 Criminal due process is designed to ensure the innocent aren t swept up with the guilty and maintain faith that the criminal justice system does indeed deliver justice. Despite the Government s assertions that these orders are preventative, in reality SCPOs are punitive and should only be imposed following a fair criminal trial. SCPOs will be used as an alternative in cases where a criminal prosecution would be entirely possible but where it is thought to be either simply too troublesome or not to provide a sufficiently broad range of remedies. 9 The ability to impose a SCPO or control order removes the incentive to pursue a prosecution. SCPOs can impose severe restrictions on individual rights and freedoms, including restrictions on with whom a person can communicate and where a person can live, work or travel. They can also include requirements to answer questions, provide information or produce documents. 10 These obligations could also stay in place for up to five years. SCPOs enable criminal sanctions to follow from doing something that is not in itself a crime. In effect, they give the civil courts the power to create new or anti-social behaviour where, without some state assistance, vulnerable individuals would be unable to make use of the civil courts to obtain protection For example, instead of needing to gather the hard evidence that the criminal courts would require, the state can obtain one of these new civil orders on the basis of hearsay/rumour or secret intelligence that the suspect has no opportunity to challenge. 9.In the last few weeks the High Court and Lord Carlile have criticised the Government s failure adequately to consider the possibility of a criminal prosecution before imposing a control order on a terror suspect. Second Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005, Lord Carlile of Berriew Q.C. February 2007 and Secretary of State v E, judgment delivered on 16 th February Clauses 11 to 15 do provide some limited information safeguards, including to protect against orders being used to make a person incriminate themselves. 5

6 criminal offences, albeit offences which only apply to one person. Establishing different legal regimes for different people certainly sits uncomfortably with the rule of law and with the principle of equality before the law. A SCPO would also attach the stigma of serious criminality to their recipients even if, as may well be the case, they have not actually committed any criminal offence, serious or otherwise. The honest trader subjected to an Order would be likely to suffer massive loss of reputation and trade as their peers will assume that anyone made subject to a SCPO must be involved in some type of criminal behaviour. The mere fact of the High Court s involvement in the making of SCPOs will not make them fair. The Court, regardless of the quality of judges who serve in it, can only work within the boundaries set in the laws passed by Parliament and cannot magically transform unfair and unjust laws into something different. 7. We were delighted by how many Peers share our principled concerns about these latest legal shortcuts. Lord Lloyd commented on reading Part 1, I could scarcely believe my eyes, describing the proposal for SCPOs as extraordinary. 11 Lord Goodhart commented Part 1 is, I believe, incompatible with the basic principles of the criminal justice system, which have existed in this country for centuries, and it is incompatible with the rule of law It should be removed from the Bill lock, stock and barrel. 12 Lord Marlesford described it as Stalinist and a step from the shadow of totalitarianism. 13 Lord Dear also expressed his concerns about the provisions. 14 As the Constitution Committee explained: A broad question for the House is whether the use of civil orders in an attempt to prevent serious crime is a step too far in the development of preventative orders. Whether or not the trend towards greater use of preventative orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent and incursion into the 11 HL Deb, 7 th Feb 2007, col Ibid, col Ibid, col Ibid, col 757 6

7 liberty of the subject and a form of punishment that cannot be justified in the absence of a criminal conviction The Government states that it wants to target the Mr Bigs and gangsters of the criminal underworld with SCPOs. We have serious doubts about whether these Orders will really be effective against this group of people. Most would, for example, have the financial resources and contacts to be able to evade any restrictions imposed by an Order. As Baroness Anelay commented at Second Reading: Today we have before us the supreme irony of a Bill that creates a cross between ASBOs and control orders, at the very time when the effectiveness of both measure has come in for so much criticism. Control orders have been dogged with problems. Just last month a third terrorist suspect went on the run. That must raise serious doubts about the effectiveness of introducing a similar scheme for gangsters; and if up to 55 per cent of tearaways breach ASBOs, what makes the Home Secretary think that hardened, calculating criminals of he most dangerous kind will pay attention to one. A far more effective way of punishing these people, providing justice to their victims and protecting the public would be to prosecute serious criminals and, if found guilty, sentence them to lengthy periods of imprisonment. 16 Serious crime would be better dealt with through the criminal justice system criminal investigation, prosecution and appropriate punishments. *** Amendment 2 SCPOs as Criminal Punishments - Alternative to Amendment 1 Clauses 1 to 5 - stand part Clause 9, page 7, delete lines 2 17 Clause 9, page 7, line 20, delete, 20 or 21 Clause 9, page 7, line 23, delete subsection (5) 15 2 nd Report of Session , Serious Crime Bill, HL Paper 41, para In a democratic society operating under the rule of law these restrictions on liberty can only be justified once it has been proved beyond reasonable that a person has committed a criminal offence (cf Article 5 of the European Convention on Human Rights) 7

8 Clauses 16 to 18 stand part Clause 19, page 12, line 32, delete also Clause 19, page 12, after line 32, insert (9) In this section (a) a serious offence in England and Wales means an offence under the law of England and Wales which, at the time when the crime was committed, was specified, or falls within a description specified in Part 1 of Schedule 1. (b) a serious offence in Northern Ireland means an offence under the law of Northern Ireland which, at the time when the crime was committed, was specified, or falls within a description specified in Part 2 of Schedule 1. Clauses 20 to 24 stand part Clause 33 to 38 stand part Effect 9. As a result of this amendment SCPOs would only be available as a sanction once a person has been convicted of a criminal offence. Briefing 10. We have explained above why Liberty opposes the creation of SCPOs as preventative civil orders. These concerns would not, however, arise if SCPOs were to be restricted to use following conviction for a serious criminal offence. 17 This amendment would, therefore, retain the proposal in Clause 19 to enable the Crown Court to issue serious crime prevention orders as part of a criminal sentence. *** 17 Lord Lloyd also expressed this view at Second Reading (HL Deb, 7 th Feb 2007, col 8

9 Facilitating Prosecutions for Serious Crime 11. As we explain above Liberty disagrees in principle with SCPOs. This does not however mean that we doubt the need to take action to deter serious crime, provide justice to its victims and punish its perpetrators. We believe that criminal prosecutions and prison sentences for those found guilty of serious crime are the most effective way of achieving these important aims. The following amendments are designed to overcome two identified difficulties with prosecuting serious crimes. Amendment 3 Alternative to SCPOs Intercept Evidence Page 1, line 4, insert new Clause - 1 Serious Crime Facilitating Prosecutions Schedule 1 (Serious Crime Prevention Measures) has effect. Clause 81, page 44, line 4, after other than insert Section 1, Schedule 1 Clause 81, page 44, after line 7, insert Section 1 and Schedule 1 of this Act shall come into force at the end of the period of two months beginning with the day on which the Act is passed. Page 45, line 2, insert new Schedule SCHEDULE 1 INTERCEPT EVIDENCE Admissibility of intercept and metering evidence 1 (1) Notwithstanding section 17 of the Regulation of Investigatory Powers Act 2000 (c. 23) ( RIPA ), evidence of (a) the contents of an intercepted communication ( intercept evidence ), and (b) communications data ( metering evidence ), shall be admissible in criminal proceedings to which this section applies. (2) This section applies to (a) proceedings in respect of serious crime; (b) proceedings in respect of an offence or offences relating to terrorism. 9

10 (3) An application for permission to introduce intercept evidence or metering evidence, or both, may be made by the prosecution for the purpose of conducting a criminal prosecution to which this section applies, and not otherwise. (4) Unless and until an application has been made by the prosecution in any such proceedings the provisions of section 17 of RIPA (exclusion of matters from legal proceedings) shall continue to apply in connection with those proceedings. Considerations for allowing intercept or metering evidence 2 In deciding whether to admit intercept or metering evidence the court shall take account of all relevant considerations, including in particular (a) any application by the Secretary of State to withhold the evidence or part of the evidence on the ground that its disclosure, or the disclosure of facts relating to the obtaining of the evidence, would be contrary to the public interest, and (b) any submission that the evidence was obtained unlawfully. Interpretation 3 In this Schedule - communications data has the same meaning as in section 21(4) of RIPA; intercepted communication has the same meaning as in section 4 of RIPA; RIPA means the Regulation of Investigatory Powers Act 2000 (c. 23); serious crime has the same meaning as in section 81(2)(b) of RIPA; terrorism has the same meaning as in the Terrorism Act 2000 (c. 11). Minor and consequential amendments 4 (1) In section 5(3)(b) of RIPA, for the words or detecting substitute, detecting or prosecuting. (2) In section 17(1) of RIPA, after the words Subject to section 18 insert and the provisions of Schedule 1 of the [Serious Crime Act 2007]. Effect 12. This amendment would permit the introduction of intercept evidence and evidence of communications data in certain criminal proceedings; and for connected 10

11 purposes. The proposed Schedule repeats the content of Lord Lloyd of Berwick s Interception of Communications (Admissibility of Evidence) Bill Briefing 13. One of the Government s arguments that this new breed of civil orders is necessary (in particular SCPOs and control orders) is the difficulty with prosecuting people involved in serious crime or terrorism. We do not doubt that criminal prosecutions may well be more difficult, time-consuming and costly for the state that SCPO applications. This is not, however, a justification for abandoning the criminal justice system. Criminal prosecutions are more respectful of our democratic values, the rule of law and our human rights than these Orders. Criminal prosecutions and prison sentences for those found guilty of serious crime would also be a far more effective way of providing justice to victims, a visible public deterrent and protection for the public. 18 We therefore urge Parliament to consider ways of overcoming any practical difficulties with the prosecution of those involved in serious crime. 14. Back in 2003, the Newton Committee concluded that lifting the blanket ban on the use of intercepted communications in court would be one way of making it possible to prosecute in more [terrorism] cases. 19 It proposed the removal of the bar as a more acceptable and sustainable approach to the threat from terrorism than executive powers to restrict liberty which evade the criminal justice process. 20 Since then a number of other influential bodies have identified the removal of the bar on intercept evidence as a change to the criminal justice system that could facilitate criminal prosecution in the terrorism context, instead of continued recourse to measures like control orders. 21 The Government has itself argued that one of the reasons why it may not be possible to prosecute those suspected of involvement in 18 In a democratic society operating under the rule of law these restrictions on liberty can only be justified once it has been proved beyond reasonable that a person has committed a criminal offence (cf Article 5 of the European Convention on Human Rights) 19 Privy Counsellor Review Committee: Anti-terrorism, Crime and Security Act Review: Report, 18 th December 2003, para Ibid, paras See also Lord Lloyd, Inquiry into Legislation against Terrorism, 1996, Cm 3420; Lord Carlile s evidence to the Home Affairs Select Committee (Minutes of Evidence 11 th March 2003) 21 Cf First Report of the Independent Reviewer Pursuant to Section 14(3) of the Prevention of Terrorism Act 2005, 2 nd February 2006, para 37 11

12 terrorism is the fact that the evidence on which the suspicion is based would be inadmissible in court The same arguments would presumably also apply to serious crime. One would expect the communications of those involved in serious crime to have been intercepted. A number of Peers made this point during Second Reading of the Bill: It is said that there may not be enough evidence to convict people of conspiracy Before we decide whether there is enough evidence in such cases, please let us look again at the interception of communications, mentioned by the noble Baroness, Lady Anelay Surely it is time that we, too, should take the plunge in this matter and bring ourselves into line with every civilised country by allowing this evidence to be admitted The JCHR recently concluded that the ban on the use of intercept evidence in criminal proceedings should be removed. 24 The JCHR is not alone in reaching this conclusion. The Commissioner of the Metropolitan Police has stated I have long been in favour of intercept evidence being used in court 25 and Dame Stella Rimmington, former director of MI5, has called the bar ridiculous. 26 The Attorney General and the Director of Public Prosecutions have also supported the removal of the bar. 27 Liberty is fully in agreement with these diverse and influential voices. We have for many years urged the Government to remove the bar on intercept evidence in order to facilitate criminal prosecutions in terrorism and serious crime cases. 28 *** 22 Newton Committee Report, para HL Deb, 7 th Feb 2007, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention, Twentyfourth Report , HL 240/HC Telegraph, Lift phone tap ban in terror trials, says new Met chief, 6 th February Guardian, Courts set to admit wiretap evidence, 21 st September Ibid and Guardian, DPP backs attorney's call to admit phone-tap evidence in court, 22 nd September Cf: Reconciling Security and Liberty in an Open Society, August See also our evidence to the JCHR on this subject at: 12

13 Amendment 4 Alternatives to SCPOs Human Trafficking Page 1, line 4, insert new Clause - 1 Serious Crime Prosecution Mechanisms Schedule 1 (Serious Crime Prevention Measures) has effect. Page 45, line 2, insert new Schedule SCHEDULE 1 FACILITATING TRAFFICKING PROSECUTIONS Recovery and Reflection Period 1 Where there are reasonable grounds to believe that a person is a trafficking victim he shall, subject to paragraph 4, be given leave to remain in the United Kingdom for a period of at least 30 days from the relevant time during which period (the recovery and reflection period ) he shall not be deported or removed from the United Kingdom against his will. Assistance with Criminal Proceedings 2 (1) Paragraph 1(2) applies where - (a) there are reasonable grounds to believe that a person is a trafficking victim, and (b) the trafficking victim is assisting with the investigation or prosecution of offences under section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19), sections 57 to 60 of the Sexual Offences Act 2003 (c. 42) or [section 27 of the UK Borders Act 2007] (2) The trafficking victim shall, subject to paragraph 4, be given leave to remain in the United Kingdom until their stay is no longer necessary for the purposes of assisting with the investigation or prosecution, during which period (the investigation and prosecution period ) he shall not be deported or removed from the United Kingdom against his will. Assistance to Victims 3 The Secretary of State shall make adequate provision for the accommodation and other essential living needs of trafficking victims during the recovery and reflection period and the investigation and prosecution period. National Security Exemption 13

14 4 Paragraphs 1 and 2(2) shall not apply where the trafficking victim would be denied protection under the Refugee Convention as a result of the application of Article 1F or Article 33(2) of the Convention. Interpretation 5 (1) In this schedule trafficking victim means (a) a person who is a passenger within the meaning of section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c.19) (trafficking people for exploitation), and who has been "exploited" within the meaning of subsection (4) of that section; (b) a person who is the victim of an offence under sections 57 to 60 of the Sexual Offences Act 2003 (c. 42). (2) In this schedule the relevant time means the time when the person is identified as a possible trafficking victim. (3) In this schedule the Refugee Convention means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the Protocol to the Convention. Effect 17. This amendment would provide victims of human trafficking with some of the protections of the Council of Europe Convention on Action against Trafficking in Human Beings (the Trafficking Convention ). The protections include: (a) a reflection and recovery period of 30 days; and/or (b) leave to remain in the United Kingdom while they are assisting with the investigation and/or prosecution of a trafficker. This would not apply to victims that would be denied protection under the Refugee Convention because, for example, they have committed serious crimes and/or are a danger to national security. The Schedule would also require the Home Secretary to make sure that basic support is provided to victims of trafficking during the reflection period and while they are assisting with a criminal prosecution. Briefing 14

15 18. The press coverage surrounding the introduction of the Bill announced that SCPOs would be used to tackle human trafficking. 29 Human trafficking was also used by Baroness Scotland in her opening remarks about why SCPOs are necessary: Teenage girls are taken from their homes in eastern Europe and trafficked into the UK for the purposes of forcing them into prostitution 30 We have no doubt whatsoever that human trafficking is a serious social evil, causing great human misery. We do, however, doubt the wisdom of relying on SCPOs as a means of tackling this horrendous crime. 19. Instead of relying on these legal shortcuts we believe that those who traffic human beings for exploitation should be prosecuted and, if convicted, punished. Criminal prosecutions and prison sentences for those found guilty of these serious offences would be a far more effective way of providing justice to victims, a visible deterrent against future trafficking and protection for the public. 31 This is the approach taken in the Trafficking Convention which requires states to put in place a range of trafficking offences and to ensure that cases are investigated and prosecuted effectively. 20. We are delighted that the UK has now put in place a range of trafficking offences 32 and that it intends to give these extra-territorial effect. 33 Enacting offences is not, however, enough in itself. More can and must be done to facilitate criminal investigations and prosecutions. We are not, for example, aware of any prosecutions being pursued under the offence of trafficking for labour exploitation enacted in One significant difficulty with prosecutions in this context is the immigration status of the victim. Victims may be unwilling to come forward to assist with an investigation for fear that they will be deported; may be deported before they have had the time properly to consider whether they are willing and able to help with a criminal 29 Cf Super-ASBOs to Tackle Gangsters, BBC, 30 HL Deb, 7 th Feb 2007, In a democratic society operating under the rule of law these restrictions on liberty can only be justified once it has been proved beyond reasonable that a person has committed a criminal offence (cf Article 5 of the European Convention on Human Rights) 32 Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and sections 57 to 60 of the Sexual Offences Act Cf Clauses 25 to 27 of the UK Borders Bill 15

16 prosecution; or may even be deported during the course of an investigation or prosecution with which they are actively assisting. 21. In the short term the single most important factor that enables victims to make decisions, both about their future and whether to assist in a prosecution, is security. It is for this reason that the Trafficking Convention provides for reflection periods, limited residence rights and support for victims. As Anti-Slavery International has commented: The evidence from other countries is that such systems are effective. Officials in Italy reported that issuing residence permits on the basis of risk and not making them conditional on co-operation in a prosecution, has assisted in securing convictions of traffickers. In the five years to June 2001, over 7,500 individuals were investigated, charged or sentenced for trafficking related offences. The UK's experience is not dissimilar as police have been assisted in 11 court cases by trafficked people supported by the Poppy Project After much hesitation on this issue, it is now clear that the Government does not object to giving limited residence rights and reflection periods to trafficking victims. We are delighted that on 23 rd January, the Prime Minister announced that the UK would sign up to the Trafficking Convention and, presumably, give domestic legal effect to its provisions. 35 This amendment would do no more than introduce into UK law those provisions of the Convention which are widely considered to be most important to ensuring that victims are willing and able to assist with the criminal investigation and prosecution of human traffickers. *** 34 Anti-Slavery International's views on Tackling Human Trafficking -- Consultation on proposals for a UK action plan, 27 March Cf 16

17 The Worst Features of SCPOs 23. As discussed above Liberty disagrees with the principle of SCPOs. We urge Parliament to delete Part I of the Bill and to consider ways of overcoming any difficulties that exist with using the criminal justice system to tackle serious crime. The following amendments would not, however, remove the power to make SCPOs. They are designed to address some of the most glaring concerns with Part I of the Bill. Amendment 5 Criminal Rules of Evidence Clause 1, page 1, line 6, after satisfied, insert beyond reasonable doubt Clause 33, page 22, after line 19, insert (3) Notwithstanding this, the rules as to the admissibility of evidence to be observed in such proceedings shall be the same as those observed in trials on indictment and no person shall be required in such proceedings to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment. Clause 1, page 1, line 12, after satisfied, insert beyond reasonable doubt Clause 34, page 22, after line 24, insert (3) Notwithstanding this, the rules as to the admissibility of evidence to be observed in such proceedings shall be the same as those observed in trials on indictment and no person shall be required in such proceedings to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment. Effect 24. As a result of this amendment the rules of evidence that apply in criminal proceedings would apply in proceedings relating to SCPOs. The amendment would also clarify the Government s intention that the courts should be satisfied beyond 17

18 reasonable doubt that a person has been involved in serious crime before making an order. Briefing 25. The British legal system and post-war human rights framework apply more rigorous fair trial standards to criminal trials than civil proceedings. 36 This is because a civilized, democratic state can only justify using its great force to punish an individual if it has established beyond reasonable doubt that the individual has committed an offence and the individual has been given a fair opportunity to defend him/herself. 26. During Second Reading of the Bill, Baroness Scotland was eager to counter arguments that SCPOs were a means of evading the higher fair trial guarantees that apply in criminal proceedings. She commented, for example: [SCPOs] are civil orders, so this involvement [in serious crime] will have to be proved to a civil standard. But I know that many of your Lordships will be only too aware so I hope that noble Lords will forgive me if I emphasise it that where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard. Recent case law has stated that in proceedings like these the court will look at the civil standard on a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of beyond reasonable doubt. 37 We acknowledged that this could be the case in our briefing for Second Reading. 38 It is not, however, by any means certain that the courts would apply this higher standard of proof in SCPO proceedings. This amendment would clarify that point and provide the certainty on this issue, rightly sought by many members of the House of Lords. 27. The fair trial guarantees in criminal proceedings also go further than a high burden of proof. Take, for example, the general rule against reliance on hearsay 36 Cf Article 6 of the European Convention on Human Rights 37 HL Deb, 7 th Feb 2007, col Cf B v Chief Constable of Avon and Somerset Constabulary, [2001] 1 All ER 562 at

19 evidence. The general requirement that a person is only convicted on the basis of statements made in oral evidence in the proceedings was designed to ensure that guilt or innocence is not determined on the basis of unreliable rumour and gossip, and to ensure that the suspect has the chance to challenge the evidence against him/her. This rule of evidence is not, as the Prime Minister would have us believe, an outdated relics of Dickens England, which are ill-suited to the needs of today. 39 It continues to perform a vital function, helping us to make sure that the innocent aren t swept up with the guilty; and maintaining public faith that our justice system does indeed deliver justice. This is clearly as relevant today as it was in Victorian England. This amendment would ensure that these criminal rules of evidence would apply in SCPO proceedings. *** Amendment 6 Requirement that criminal prosecution is not possible and that criminal investigations continue Clause 1, page 1, line 7, delete and Clause 1, page 1, line 10, replace. with ; and Clause 1, page 1, after line 10, insert (c) it is satisfied that it is not possible to prosecute the person for a criminal offence. Clause 1, page 1, line 13, delete and Clause 1, page 2, line 3, replace. with ; and Clause 1, page 2, after line 3, insert (c) it is satisfied that it is not possible to prosecute the person for a criminal offence. After Clause 1, page 2, after line 18, insert following new clause 2 Continuing criminal investigations (1) Once a serious crime prevention order has been made against a person the Secretary of State must inform the chief officer of the police force that the order has been made and that subsection (6) applies. 39 Prime Minister s Speech to Labour Party Conference, 27 September

20 (2) It shall then be the duty of the chief officer to ensure that all appropriate lines of investigation are pursued diligently with a view to the person s prosecution for an offence relating to a serious crime in England and Wales, Northern Ireland or elsewhere. (3) In carrying out his duty by virtue of this section, the chief officer must consult the relevant prosecuting authority, but only, in the case of the performance of his duty under subsection (6), to the extent that he considers it appropriate to do so. (4) For the purposes of this section the terms chief officer, police officer and relevant prosecuting authority have the same meaning as in Section 8 of the Prevention of Terrorism Act 2005 (c.2). Effect 28. This amendment would restrict the ability to make SCPOs in situations in which the High Court is satisfied that it would not be possible to prosecute a person for a criminal offence. It would require criminal investigations to be continued following the making of an order with a view to a criminal prosecution. Briefing 29. As discussed above, Liberty disagrees with the concept of SCPOs which we believe to be an unacceptable legal shortcut that would make it possible to punish individuals without the administrative inconvenience of fair trials and criminal due process. The Government responds that this is not the aim and argues that SCPOs are needed to deal with cases where a criminal prosecution would not be possible and where SCPOs are, therefore, the only option: 40 I know that in the case of the press coverage of the publication of the Bill there has been much mistaken comment about these orders being a way for 40 This could be because the people concerned are on the the fringes of criminality, not committing a criminal offence but who the police suspect are up to no good. Alternatively, a criminal prosecution might not be possible because the evidence against a person would not be admissible in court (i.e. it was obtained from the interception of evidence). As we discuss elsewhere the use of SCPOs in both of these situations raises serious ethical and legal concerns. 20

21 law enforcement agencies to get around troublesome prosecutions. I assure the House that that is not the intention. 41 This assurance is not, however, a sufficient guarantee. There is nothing in the Bill that would prevent an SCPO being used as an alternative in cases where a criminal prosecution would be entirely possible but where it is thought to be either simply too troublesome, due to the fair trial hurdles that would need to be crossed, or not to provide a sufficiently broad range of remedies. 30. The predecessors of SCPOs, ASBOs and control orders, demonstrate the need for express safeguards to be included on the face of the Bill. It has become very common for ASBOs to be used as an easier alternative to a criminal prosecution, i.e. because it is more straightforward to collect and rely on hearsay evidence. 42 Parliament was similarly concerned that Control Orders would be used as an easy alternative to criminal prosecutions for those involved in terrorism and insisted that a provision be included in the Prevention of Terrorism Act This required the possibility of a criminal prosecution to be considered before a control order is made and for criminal investigations to be continued following the making of the order. 44 Notwithstanding this provision, it appears that incomplete consideration has been given to the possibility of prosecutions prior to the making of control orders. This was one of the reasons why the High Court decided on 16 th February that the Home Secretary had exceeded his powers under the Prevention of Terrorism Act 2005 and therefore, quashed the control order. 45 There is every reason to fear that the ability to deal with a serious crime by using an SCPO will remove the incentive to pursue criminal investigations and prosecutions. 31. This amendment would ensure that this is not the effect of SCPOs. It would, thereby, safeguard the Government s intention as expressed by Baroness Scotland. The amendment would require the High Court to be satisfied that a person could not 41 HL Deb, 7 th Feb 2007, col 729 (per Baroness Scotland) 42 There is no restriction on this kind of use of ASBOs in the Crime and Disorder Act Section 8 44 The wording of the new Clause in this amendment is broadly based on that found in section 8 of the 2005 Act. 45 Secretary of State v E 21

22 be prosecuted before making an SCPO and would require for all appropriate lines of criminal investigation to be pursued diligently following the making of an Order. Amendment 7 Facilitating the Commission of a Serious Crime *** Clause 2, page 2, line 25, delete sub-clause (c) Clause 2, page 2, line 41, delete sub-clause (c) Clause 2, page 3, line 5, delete sub-clause (c) Clause 3, page 3, line 35, delete sub-clause (c) Clause 3, page 4, line 3, delete sub-clause (c) Clause 3, page 4, line 11, delete sub-clause (c) Effect 32. This amendment would restrict the use of SCPOs to situations in which a person has either committed a serious offence or facilitated the commission of such an offence. It would prevent SCPOs being made where a person has conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence. 46 Briefing 33. Liberty is profoundly concerned about the way Part 1 of the Bill defines involvement in serious crime. This includes the commission of a serious offence 47 - begging the question if so, why not prosecute them? and facilitating the commission of a serious offence. 48 But the definition of involvement goes even further. The Bill states that an Order can be made if a person has done nothing more that conducted himself in a way that was likely to facilitate the commission by himself or another person of a serious offence (whether or not such an offence was committed) (Clause 2(1)(c)). 46 This amendment has already been laid by Baroness Anelay and Lord Henley. 47 Clause 2(1)(a) 48 Clause 2(1)(b) 22

23 34. This means that an order could be given to a person that runs a shop selling fishing tackle because the tackle could be used to illegally poach salmon or trout (treated as a serious crime). 49 In such a case there would be no culpability, whatsoever, on behalf of the person subject to the Order. This was recognised in the Home Office consultation which preceded the Bill. It gave as an example of a situation where an SCPO may be given - a company that makes concealed compartments purportedly to allow drivers to hide valuables but which could be used to store drugs. 50 The consultation explained that an Order could be made that would require the company to notify law enforcement of details of containers fitted and the customer. This raises a concern that SCPOs will be used as an alternative to regulation for industry sectors that could be used by those involved in serious crime. This fits in with the Government s stated desire to move away from onerous blanket regulation. 51 In Liberty s opinion the example given is one where a regulatory approach would be far more appropriate especially given the detrimental reputational implications for a business of receiving an SCPO. *** Amendment 8 Unreasonable Actions Facilitating a Serious Offence Shifting the Burden Clause 2, page 2, line 23, after has insert conducted himself in a way that was unreasonable in the circumstances and, by so doing, has Clause 2, page 2, line 25, after was insert unreasonable in the circumstances and was Clause 2, page 2, line 39, after which insert was unreasonable in the circumstances and Clause 2, page 2, line 41, after is insert unreasonable in the circumstances and is 49 See Schedule 1 50 Home Office Consultation: New Powers Against Organised and Financial Crime, July 2006, Page Ibid, page 10 23

24 Clause 2, page 3, line 3, after has insert conducted himself in a way that was unreasonable in the circumstances and, by so doing, has Clause 2, page 3, line 5, after was insert unreasonable in the circumstances and was Clause 3, page 3, line 33, after has insert conducted himself in a way that was unreasonable in the circumstances and, by so doing, has Clause 3, page 3, line 35, after was insert unreasonable in the circumstances and was Clause 3, page 4, line 1, after which insert was unreasonable in the circumstances and Clause 3, page 4, line 3, after is insert unreasonable in the circumstances and is Clause 3, page 4, line 9, after has insert conducted himself in a way that was unreasonable in the circumstances and, by so doing, has Clause 3, page 4, line 11, after was insert unreasonable in the circumstances and was Clause 4, page 5, delete from (a) on line 1 to his intentions, or on line 3 Clause 4, page 5, delete from (a) on line 9 to his intentions, or on line 11 Effect 35. At present, a defendant cannot be given an SCPO if he can establish that his actions that facilitated or were likely to facilitate the commission of a serious offence were reasonable in the circumstances. The amendment would remove this defence and shift the burden to the prosecutor to show that the defendant s actions were unreasonable. Briefing 36. As we discuss above, we are concerned about the wide definition of involvement in serious crime and, in particular, our fear that this would encompass actions which most of us would consider to be entirely reasonable (running a shop 24

25 selling fishing tackle). The Government s likely response to this is that a person in that situation could rely on Clause 4(2) and (3) and show that running a tackle shop is reasonable in the circumstances. 37. We do not consider it appropriate to place this burden on the defendant. The law should only punish unreasonable actions 52 and the state should bear the burden of establishing that a person s actions are unreasonable. The state should not be able to rely on very broad powers to restrict a person s freedoms and then to impose a requirement on the individual to argue that it would be unreasonable to do so in the circumstances. This amendment would require the state to show that the actions of the defendant are unreasonable in the circumstances and that it would therefore be reasonable for the defendant to be subjected to an SCPO because of those actions. Amendment 9 Making Serious Offence an Ascertainable Concept *** Clause 2, page 2, line 33, delete sub-clause (b) Clause 2, page 3, line 19, delete sub-clause (ii) Clause 3, page 3, line 43, delete sub-clause (b) Clause 3, page 4, line 25, delete sub-clause (ii) Effect 38. At present an offence can be a serious offence for the purposes of the Bill if in the circumstances of the case, the court considers it to be sufficiently serious to be treated as such. This amendment would remove this provision, meaning that an offence is only a serious offence if listed in Schedule 1 to the Bill Leaving aside issues such as strict liability or recklessness 53 These amendments have already been laid by Lady Anelay and Lord Henley. 25

26 Briefing 39. The Government s rhetoric surrounding this Bill speaks of new, tough measures to deal with people who are involved in serious crime. It is, however, vital that Parliament looks behind this rhetoric to how these key ideas of involvement in and serious crime are defined in the Bill. This amendment focuses on the overbroad definition of serious crime. Schedule 1 lists a range of criminal offences which are to be treated as serious crime. Some of these fit easily within what most of us would consider to be serious crime people, drugs and arms trafficking; others, however, do not most notably the offence of fishing for salmon, trout or freshwater fish with prohibited implements. 54 It will come as no surprise to parliamentarians that the Secretary of State is also seeking the power to add to this list of serious offences (Clause 4(4)). It is not a sufficient safeguard that this order-making power would be subject to the affirmative resolution procedure More worrying than this, however, is the provision stating that a serious offence includes any which in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application as it is were so specified (Clause 2(2)(b)). This means, in effect, that even the inaccurate completion of a VAT return could be treated as a serious offence if a Court considered that appropriate in a given case. As Lord Dholakia explained at Second Reading: In other words, the Court can regard any offence that it likes as serious. That is an Alice in Wonderland definition; it is effectively saying that words can mean whatever the courts want them to mean. This does great damage to the principle of legal certainty, making it impossible for a person to ascertain in advance what the likely legal consequences of their actions will be. This amendment would remove this provision meaning that an offence has to be listed in Schedule 1 to be treated as a serious offence. 54 Section 1 of the Salmon and Freshwater Fisheries Act Clause 76(3). The Government could still present Parliament with a list of 20 new offences, 19 of which were serious and one which was not. Since Parliament cannot amend the order it would be placed in an impossible situation, being given only two options: reject the order in its entirety, so that the more appropriate offences would not be added; or passing the order in its entirety, including the one inappropriate offence. 26

27 *** Amendment 10 Clarity of Requirements and Prohibitions Clause 5, page 6, line 6, delete sub-clause (7) and insert (7) Reasonable means of performing the requirements imposed by serious crime prevention orders that are not specified in the orders may be determined in accordance with provision made by the orders (including provision conferring discretion on law enforcement officers). Effect 41. This amendment would remove the power for the Court to sub-delegate requirements, prohibitions and restrictions on SCPOs. It would allow determination of the precise means of performing an obligation imposed on an Order to be subdelegated. Briefing 42. As presently drafted, Clause 5(7) would completely undermine the principle of legal certainty and would allow the courts to confer unacceptable powers on law enforcement agencies to restrict a person s freedoms. It states that the actual prohibitions, restrictions or requirements that are imposed by the SCPO do not need to be set by the Court and stated on the face of the Order; they may also be determined in accordance with provision made by the orders (including provision conferring discretion on law enforcement officers). 56 This would, for example, mean that the SCPO could merely state Mr X shall comply with anything the police tell him to do which the police think is necessary to stop Mr X engaging in criminal activity. This degree of legal uncertainty and sub-delegation of law-making to enforcement authorities is wholly unacceptable, especially in connection with an order which, if breached, could lead to up five years imprisonment. 56 Clause 5(7) 27