§ 4.10 p.m.
§ Report received.
§ Clause 1 [Offences to which this Part applies]:
§ Earl Ferrers moved Amendment No. 1:
§ Page 2, line 33, leave out paragraphs (e) and (f).
§ The noble Earl said: My Lords, in moving Amendment No. 1 I shall speak also to Amendments Nos. 2, 3 and 4. They are technical amendments that are intended to tidy up Part I of the Bill and to make the way in which the Bill operates slightly clearer.
§ At Second Reading and in Committee the noble Baroness, Lady Mallalieu, asked why paragraphs (e) and (f) of Clause 1(3) were necessary. They were included in the Bill for good reason. But I have since looked at the paragraphs again and in order to show that I am not—as the noble Baroness suggested in a moment of uncharacteristic flight of fancy—being intransigent, I find that I agree with her. Amendment No. 1 seeks to remove those two paragraphs, (e) and (f).
§ The purpose of the paragraphs was to cover conspiracies and attempts in this country to commit the equivalent of Group A offences in another country. In order to keep the offences in Group B, I have proposed two amendments, Nos. 3 and 4, to Clause 5. Those amendments will mean that those conspiracies and attempts which are formulated in this country but which are intended to take effect overseas will be treated as though their objective had been in this country.
§ That will make it clear that in a case, for example, where there is a conspiracy in this country to steal property in France, the conspirators can be charged with "conspiracy to commit theft", rather than being charged with some convoluted formula about conspiracy to commit actions in France which, if they had been committed in England and Wales, would have constituted theft.
§ With the two amendments to Clause 5, the provisions in Clause 3(2) and (3) would become ambiguous. They might—on a perverse reading—lend substance to the noble Baroness's other flight of fancy when she suggested at Second Reading that we might be able to prosecute Mexicans who had committed fraud in Mexico at Snaresbrook Crown Court.
§ I hasten to say that that prospect would be of substance only if we amended Clause 5 in the way in which I propose, without at the same time making the 1470 amendments I have proposed to Clause 3, which puts the matter completely beyond doubt. With that explanation, I beg to move.
§ Lord Williams of Mostyn
My Lords, I am grateful to the noble Earl for his recantation. For every sinner that repenteth there is rejoicing in the House of the Lord, and indeed in the House of your Lordships.
My Lords, I am grateful for the philosophy behind the noble Lord's remark. I would only point out that it was not a question of the sinner repenting. It was merely a question of the intransigent seeing that there was substance in what had been said.
§ On Question, amendment agreed to.
§ Clause 3 [Questions immaterial to jurisdiction in the case of certain offences]:
§ Earl Ferrers moved Amendment No. 2:
Page 3, line 25, at end insert:
§ On Question, amendment agreed to.
§ Clause 5 [Conspiracy, attempt and incitement]:
§ Earl Ferrers moved Amendments Nos. 3 and 4:
Page 4, line 21, leave out from beginning to end of line 25 and insert:
("(5) An offence which is an offence of conspiracy, by virtue of this section, shall be treated for all purposes as an offence of conspiracy to commit the relevant Group A offence." ").
Page 4, line 41, at end insert:
("(5) Where a person does any act to which this section applies, the offence which he commits shall for all purposes be treated as the offence of attempting to commit the relevant Group A offence." ").
§ The noble Earl said: My Lords, I beg to move Amendments Nos. 3 and 4 en bloc.
§ On Question, amendments agreed to.
§ Clause 7 [Confiscation orders]:
§ The Deputy Speaker (Lord Hayter)
My Lords, I must point out that if Amendment No. 5 is agreed to I cannot call Amendment No. 6 on the principle of pre-emption.
§ Lord Williams of Mostyn moved Amendment No. 5:
§ Page 6, line 16, leave out subsection (2).
§ The noble Lord said: My Lords, Clause 7 has the same vice as Clause 24. The vice that is detected on our side is that without the amendment a defendant in a certain class of criminal case may be stripped of his entire property on the conclusion that it is more likely than not that he has benefited from drug trafficking or on an assessment of the amount by which he has benefited.
§ I respectfully suggest that it is a lamentable and increasing tendency in recent legislation that first principles are forgotten. The first principle for which I contend is that no one should be subject to effective forfeiture of his entire property without a clear, unequivocal demonstration that he had, on a criminal standard of proof, benefited from crime.1471
§ Section 2 of the Drug Trafficking Offences Act 1986 allows a court, in assessing the proceeds of drug trafficking, to make certain assumptions as to the value of the benefits the drug trafficker has received. Subsection (2) of Clause 7 will entitle a court to strip a defendant of his entire substance on a mere balance of probabilities. I suggest that it is worth recalling that, if a defendant fails to disgorge the profits or, much more likely in practice, is unable to disgorge the profits because they are not available to him, he is subject to imprisonment in default. Therefore it is not simply a question of financial forfeiture on the balance of probabilities only; it is a question of imprisonment.
§ If the subsection were to stand unamended, the absurd and indeed vicious consequence would be that to establish guilt of drug trafficking would require proof beyond reasonable doubt—the normal criminal standard—but to expropriate property intimately connected with that guilt would simply require a conclusion on the balance of probabilities.
§ Those are not lawyers' niceties; they are fundamental issues. We on this side detest and abominate the vile offences of drug trafficking and laundering the proceeds of drug trafficking. But it is precisely when the offences are vile that we need to be most cautious and scrupulous. We should not overthrow the first principle for an expedient, however immediately seductive and attractive expediency may seem. It is for those reasons, I hope briefly expressed, that I ask the noble Earl to reflect again on the cast of this specific subsection. I beg to move.
§ Lord Brightman
My Lords, I do not feel able to support the amendment. Let me make a comparison. Suppose a burglar enters my house, breaks into my safe and makes off with the money that he finds there. The burglar is caught, prosecuted and convicted. If I bring proceedings to recover my money I do not have to prove beyond reasonable doubt exactly what has been stolen. The civil standard of proof applies. The issue is: what was probably in the safe was, on a balance of probabilities, taken. That is so even if I add to my claim the value of a picture which was missing at the same time but which was not included in the indictment for burglary.
I now turn to the case of the drug trafficker. Let us suppose that he has been convicted and that proceedings are taken to recover from him his ill-gotten gains. Why should the drug trafficker be in a more favourable position than the burglar? Both have committed crimes; in each case the issue is the same. In the one case: was there any money in the safe and, if so, how much? In addition, was my picture taken? In the second case: has any drug money been received and, if so, how much? Why should the drug trafficker be in a better position than the burglar? Why should the drug trafficker be able to say, "prove my ill-gotten gains beyond reasonable doubt" while the burglar is only able to say "prove my ill-gotten gains on a balance of probabilities"?
In my view it is not correct to argue that the criminal standard of proof should apply because a confiscation order may extend to the proceeds of a previous drug trafficking offence for which the 1472 defendant has not been convicted. In my example the burglar had not been convicted of stealing my picture. But I can recover judgment against the burglar on a balance of probabilities notwithstanding that he has not been convicted of stealing my picture. I invite your Lordships to take the view that the clause as drafted is correct.
§ Lord Campbell of Alloway
My Lords, I support everything that the noble and learned Lord, Lord Brightman, has just said. I have only this to add: I have had some practical experience defending a drug dealer in Birmingham where this position arose. He was convicted. It is right in the public interest that my noble friend the Minister should resist this amend-ment. I can see no fundamental injustice in the clause as it stands. If I thought that there were, or that it were contrary to the public interest, that would be quite another matter. It is a very serious matter dealing with a serious social evil. I hope that your Lordships will feel that the clause as it stands makes a welcome contribution to the suppression of this evil.
§ Lord Ackner
My Lords, as I understand it, we are not concerned with the burden of proof which lies on the prosecution. That has not been altered. We are concerned purely with the standard of proof. We are not concerned with the standard of proof in a criminal case because the criminality has been established. We are concerned purely with the task of proving that the defendant has benefited from the drug trafficking and the amount of such benefit.
It is right to bear in mind that the obligation to prove on the civil basis on the balance of probability varies in its weight according to what has to be proved. It is put very succinctly by Lord Justice Denning, as he was, in Baker v. Baker, 1951, quoted in Cross on Evidence in the last edition at page 148:It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud, would naturally require for itself a higher degree of probability than that which would be required when asking if negligence is established. It does not adopt so high a degree as a criminal court even when it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion".The issue in this particular matter will be determined by a judge who will fully appreciate the degree of gravity of what has to be established. I see no risk of any injustice occurring to the defendant, for want of a better term, and I too resist this amendment.
My Lords, I am aware that the noble Lord, Lord Williams of Mostyn, is worried about this clause as indeed was his noble friend, Lady Mallalieu, before. I am grateful to the noble and learned Lords, Lord Brightman and Lord Ackner, and to my noble friend Lord Campbell of Alloway, for saying that they thought that the words in the Bill are correct and that those in the amendment would be undesirable. With those formidable howitzers, if I may so put it, the 1473 noble Lord, Lord Williams, is a little lonely but he must not worry about that. We have all been in that position. It is merely that probably he is not right on this occasion. Perhaps I may explain the reasoning behind this matter so that the noble Lord knows.
The purpose of subsection (2) of Clauses 7 and 24 is to make perfectly clear what standard of proof is applicable in confiscation hearings under both the Drug Trafficking Offences Act 1986 and the Criminal Justice Act 1988. The standard to be applied was not stated on the face of those two statutes, but it was always intended that it should be the civil standard. The absence of any provision on the face of the legislation did lead to some uncertainty in the courts, and that in turn led to a legal challenge in the Court of Appeal. That court found that the standard applicable was the criminal standard.
Subsections (2) of Clauses 7 and 24 just seek to restore the situation to that which it was intended to be when those Acts were first brought in. To omit that provision would undermine the aims of the confiscation legislation. We should not delude ourselves as to the practical effect which these amendments would have. It would be a lot more difficult for the courts to confiscate the profits of drug trafficking or criminal conduct from convicted drug traffickers or criminals. These criminals—after all, they are proven criminals—would stand a much greater chance of keeping their illicit gains. Worse than that, it would actually provide an incentive to participate in criminal activities because the ability to retain the money would be seen to be that much greater. The amount of money at the disposal of criminals to fund further drug trafficking or other crimes would also be increased. The proceeds of drug trafficking would remain in circulation. Crime would be seen to pay.
I accept what the noble Lord, Lord Williams of Mostyn, said and that he and his noble friends intensely dislike drug trafficking and all its proceeds. I know that in his and his noble friend's mind there is no question of the amendment seeking to benefit the traffickers, but that is what would happen. He said that the provisions would strip a defendant of the entire substance of his property. Let us think about that for a moment. Drug traffickers and those who participate in other profitable crimes are notoriously skilled at concealing their profits. That is why the Government have made such strenuous efforts to combat money laundering. The noble Lord's amendment would undermine all that. It would certainly encourage money laundering and make it even more difficult for the law enforcement authorities to detect drug trafficking, let alone remove its profits.
It is unrealistic in this context to expect the prosecution to prove to the criminal standard of proof that assets derive from criminal activities. As the noble Lord, Lord Williams, will know, where earnings or property have been legitimately acquired, the defendant will have the opportunity to prove to the civil standard that that was the case. I really do believe that it is right that both the defendant and the 1474 prosecution should face the same standard of proof —in other words, the civil standard, as is the case in civil proceedings.
I recognise that your Lordships know this, but I must make it perfectly clear that any person who is accused of drug trafficking or other criminal conduct will be convicted only if he or she is proved guilty to the criminal standard—in other words, beyond reasonable doubt. The person is then guilty. What we are concerned with here is what assets that guilty person has which are the proceeds of crime. That is much more in the nature of a property dispute than a criminal trial. I suggest that that is the reason why the civil standard of proof is the correct one.
I am grateful to the two noble and learned Lords (with all their authority and experience of the courts) for saying that they agree that these amendments should not be accepted. I hope that, on reflection, the noble Lord, Lord Williams of Mostyn, might also agree that this time the sinner should repent, but it is on the other side of the House.
§ 4.30 p.m.
§ Lord Williams of Mostyn
My Lords, I am most grateful to the noble Earl. The tone of his remarks was generous—as always, in my brief experience. His last words referred to guilty persons. I simply observe that guilty persons also have rights.
In respect of the observations made by the noble and learned Lord, Lord Brightman, perhaps I may suggest that there are two distinctions. First, this is an integral part of the criminal process and, secondly, one does not normally find imprisonment in default in civil actions. In all the circumstances, I accede to the noble Earl's request and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Airedale moved Amendment No. 6:
§ Page 6, line 22, leave out ("that applicable in civil proceedings.") and insert ("a balance of probabilities.").
The noble Lord said: My Lords, this amendment is concerned not with what the Bill does, but with the words that it uses to explain what it does. In Committee I ventured to say that whereas every person is required and expected to know the law—and in particular, the criminal law—there is a correspond-ing duty upon Parliament to make the statutory criminal law as easily understood by the ordinary citizen as may be. So the question arises: does the ordinary citizen better understand the words in the Bill,
The standard of proof … applicable in civil proceedings",
or does he better understand the words "a balance of probabilities" if that is, indeed, what the civil standard of proof is?
§ The matter can be tested easily. The noble Earl could ask his friends and relations, his taxi driver or his chauffeur, "Can you tell me the standard of proof that is applicable in civil proceedings?" and the answer would probably be, "Would you mind saying that again? I do not quite understand the question." But if the noble Earl were to say, "Do you understand what is meant by 'a balance of probabilities?"', the likely answer would be, "Yes, I think that I understand 1475 that." So why cannot those simple words, clearly understandable, be part of the Bill? Why are the Government being coy? Is it that they do not want the ordinary citizen to know that the burden of proof beyond reasonable doubt in a criminal statute is being whittled or chipped away and they therefore wrap it up in words which they hope the ordinary citizen will not readily understand?
§ That is not playing fair with the ordinary citizen. If he is expected to know the law, it is the duty of Parliament to make the law understandable in the plainest possible terms. The Bill does not achieve that in this clause. I beg to move.
§ Lord Renton
My Lords, I am very sorry that I could not be here for the Committee stage. If there is any repetition on my part of thoughts that were expressed then, I must apologise.
I have some sympathy with the amendment. Each statute should be clear within itself. Its meaning should be self-contained so far as possible. However, here we have what is really a form of legislation by reference. One cannot find out what is "applicable in civil proceedings" without looking elsewhere—not even in this case to another statute—because, so far as I remember, the burden of proof in civil proceedings has not been laid down by statute. It has been developed mainly by the common law courts over the centuries. As the noble Lord, Lord Airedale, said, it is an expression of the balance of probabilities. We know that, so why can we not say so? The amendment would not lengthen the wording of the Bill. It is simply an ideal way of expressing what we have in mind. Therefore, subject to what my noble friend the Minister may say—and I shall, of course, listen to what he says—I have some sympathy with the amendment.
§ Lord Campbell of Alloway
My Lords, with the greatest respect to my noble friend Lord Renton, I have no sympathy with the amendment. The noble Lord, Lord Airedale, referred to the "ordinary citizen" about 12 times in his speech. However, we are not concerned with the ordinary citizen; we are concerned with the convicted drug offender. The ordinary citizen is not a convicted drug offender. Both before he has been convicted and after conviction, the drug offender receives legal advice. He is represented. There is certainly no ambiguity in this affair. As I see it, it is a mere matter of semantics and, with respect to my noble friend, the Bill as drafted seems to be perfectly plain, perfectly clear and wholly adequate.
§ Lord Renton
My Lords, before my noble friend sits down, will he answer this question? Does he agree that there are occasions when a person, not a drug addict but, in the context of the views he expressed, an ordinary citizen, may be wrongly accused under the Bill and may have to defend himself? Is it not as well that that person should know what the burden of proof against him will be?
§ Lord Campbell of Alloway
My Lords, with respect to my noble friend, there are two answers. The first is 1476 that we are not concerned with drug addicts but we are concerned with convicted drug offenders. Well, that is a sufficient answer.
§ Lord Wigoder
My Lords, perhaps I may intervene in the private fight on the other side of the House. I simply observe that I sympathise with my noble friend Lord Airedale's desire that our statutes should be expressed in terms clearly understandable by the ordinary citizen. I am bound to observe that the first six clauses of this Bill would be wholly unintelligible to the ordinary citizen, and he would only be taken by surprise if we suddenly changed tack on Clause 7.
My Lords, I too have a certain amount of sympathy with the noble Lord, Lord Airedale. I like these things to be as simple as possible because it makes it much easier for simple Ministers to understand what they are supporting and putting forward. Curiously enough, I also have a lot of sympathy with my noble friend Lord Campbell of Alloway, who said that this is not a matter dealing with the common man but it is dealing with a convicted drug offender and criminal.
The noble Lord, Lord Wigoder, says that he finds this extremely complicated. But statutes are com-plicated; and, if I may say so, I cannot take responsibility for the need to make them complicated. He will know that any form of drug legislation is wildly complicated. I can assure the noble Lord, Lord Airedale, that the Government are not seeking to conceal the true meaning of the clause or its effect from the public. What we are talking about here is not altering the effect of the Bill but merely changing the words.
The provision as drafted uses a commonly accepted form of words. It is an established drafting convention to refer to the standard as the civil standard, and it is a convention that has been used without difficulty in previous legislation. It has been used in the Criminal Justice (International Co-operation) Act 1990 which also relates to drug trafficking and there has been no problem there. Indeed, were we to move away from this convention, it could well cast doubts on the interpretation of the phrase when it is used in other statutes. Consistency, I know, is something that my noble friend Lord Renton would hold dear to.
The law is, regrettably, a complicated business. We may not like that fact but we cannot dispute it. I wholeheartedly agree with the noble Lord, Lord Airedale, that we should do all we can to simplify the law wherever possible. I appreciate the intention behind his amendment, but I cannot accept that the proposed change would be helpful. Other than the common man of the noble Lord, Lord Airedale—who I fancy would find a great deal more difficulty in understanding the remainder of the Bill than that particular phrase—everyone in the courts of law knows this meaning. I suggest that they are the best words to use, and I hope the noble Lord will withdraw his amendment.
§ Lord Renton
My Lords, before my noble friend sits down, may I straight away agree that there are many precedents for the form of words in the Bill, but surely 1477 it must be our intention always to try to improve on our statute law and not always be bound by precedent. However, I realise the position my noble friend finds himself in, and would suggest to the noble Lord, Lord Airedale, that he might not wish to press this amendment on this occasion.
§ Lord Airedale
My Lords, the noble Lord, Lord Campbell of Alloway, said that I referred to the "ordinary citizen" five times, and that we are not dealing with him but with a drug offender. I began my speech by saying that the ordinary citizen is expected to know the law. I did not say that drug offenders are expected to know the criminal law. The noble Earl brought in drafting convention, which the draftsmen like to follow. That is all right as long as you are quite sure that you are applying the convention in the proper place.
My noble friend Lord Wigoder points out that so much of this Bill in the early parts is incomprehensible to the ordinary citizen. It seems a pity not to seize the opportunity of a chink of daylight in the Bill to make it comprehensible to the ordinary citizen by using the simple words suggested in the amendment. However, upon the advice of the noble Lord, Lord Renton, I will withdraw my amendment.
§ Amendment, by leave, withdrawn.