Serious Crime Bill
Liberty’s Briefing and Amendments for
Report Stage in the House of Lords
(Parts 1 and 2)
April 2007
About Liberty
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2
Introduction
1.
Serious crime undoubtedly constitutes a massive cost to society and to the state.
The state has a moral responsibility to take steps to combat it. 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,1 parts company with the Government. The amendments we propose in this
briefing are not designed to undermine the ability of the state to tackle serious crime.2
They are designed to reduce the risk of the measures proposed in this Bill leading to
serious injustice, a loss of public faith in the criminal justice system and the
undermining of our democratic rights and freedoms.
2.
At the outset we welcome the two amendments to the Bill that the Government
has so far laid for consideration at Report. The first removes the previously sweeping
power for the terms of an SCPO to be set by law enforcement officers rather than the
High Court.3 The second amendment ensures that a person that is required to provide
information or answer questions under an SCPO would not, by so doing, put
themselves in breach of a contractual or other duty of confidence. Notwithstanding
these welcome changes there remain many serious problems with the Bill. We hope
that the House of Lords will continue to press for further much-needed improvements
to the Bill during its remaining stages.
3.
The amendments proposed in this briefing relate to the first two Parts of the Bill:
•
PART 1: As we have explained in our previous briefing materials, Liberty
objects in principle to the imposition of Serious Crime Prevention Orders
(“SCPOS”) on those who have not been convicted of any crime. We seriously
doubt whether they will work in practice and consider them to be an
unacceptable legal shortcut which goes against basic British values like the
presumption of innocence and the right to a fair trial. Nevertheless, the
1
We agreed, for example, with the setting up of the Serious Organised Crime Agency (SOCA).
At Committee Stage we proposed amendments to Parts I, II and III of the Bill in three separate
briefings - see http://www.liberty-human-rights.org.uk/publications/1-policy-papers/index.shtml
3
The relevant provision would be amended so that law enforcement officers could only set minor
terms about when and in what form information or documents are provided pursuant to an SCPO.
2
3
amendments proposed in this Briefing do not seek to remove the whole of
Part 1. Instead we seek to address some of the most unjust and dangerous
aspects of these proposals. In particular, we propose amendments that would
apply appropriate fair trial standards to SCPO applications; reduce the risk of
SCPOs being used as an easier alternative to criminal prosecutions; place greater
responsibility on the prosecuting authorities to prove that an SCPO is
appropriate; and ensure that there is some degree of certainty as to when an
SCPO might be imposed.
•
PART 2: We do not object in principle to the new offences proposed in Part 2
of the Bill. We do, however, propose a single amendment that would require the
prosecution, rather than the defence, to prove that conduct is unreasonable and,
therefore, worthy of criminalisation.
4.
We also intend to produce a number of amendments to Part 3 of the Bill. These
will focus on data sharing and data mining provisions and will: (i) clarify that the Bill
does not authorise data mining to be used to profile people who are considered likely
to be involved in criminal behaviour in the future; (ii) ensure that sensitive data can
only be shared when permitted by the existing provisions of the Data Protection Act
1998; and (iii) require primary legislation to extend the purposes for which data
mining may be undertaken.
***
4
PART 1: SERIOUS CRIME PREVENTION ORDERS
Amendment 1 – Criminal Fair Trial Standards
Amendment 1A – Burden of Proof
Clause 1, page 1, line 6, after “satisfied”, insert “beyond reasonable doubt”
Clause 1, page 2, line 2, after “satisfied”, insert “beyond reasonable doubt”
Amendment 1B – Criminal Evidence Rules
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 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
5.
Amendment 1A would clarify that in SCPO applications the criminal standard
of proof applies when establishing whether the conduct justifying the SCPO took
place. It would not affect the standard of proof that would apply when the Court is
determining whether an SCPO would protect the public. Amendment 1B would
ensure that the criminal rules of evidence apply in respect of SCPO applications. This
would, for example, mean that hearsay evidence would not be admissible.
5
Briefing
6.
It has been a key principle of the English legal system that more rigorous
standards are applied to criminal trials than to civil proceedings. A civilised and
democratic state can only justify using its great force to punish an individual and
restrict their rights if it has been established beyond reasonable doubt and on the basis
of reliable evidence that the individual has committed an offence deserving such
punishment.
7.
The Government has insisted that SCPOs “are not punitive, but preventive”4 and
that civil rather than criminal fair trial standards are, therefore, appropriate. Liberty is
not convinced. SCPOs would impose quasi-criminal sanctions and should be subject
to criminal fair trial procedures: they would 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; would enable criminal sanctions to
follow from doing something that is not in itself a crime; and would attach the stigma
of serious criminality to their recipients. It is difficult to see how such severe
restrictions on an individual’s freedom of movement could be characterised as
anything but punitive.
8.
For this reason these amendment would: (i) make it clear on the face of the Bill
that the criminal standard of proof applies (Amendment 1A); and (ii) require the
criminal rules of evidence to be adhered to (Amendment 1B).
Amendment 1A
9.
We believe that the appropriate standard of proof to apply when establishing
whether the conduct justifying the SCPO has occurred should be the criminal test of
“beyond reasonable doubt” rather than the classic, lower civil test of “on the balance
of probabilities.5 The Government and courts appear to agree with this. Baroness
4
Baroness Scotland, HL Deb, 7th March 2007, col 243
5
It would not be reasonable to apply this standard to the second hurdle that must be jumped before an
SCPO could be applied, i.e. the court having reasonable grounds to believe that the order would protect
the public (Clause 1(1)(b)).
6
Scotland indicated at Second Reading that, in practice, the courts are likely to have to
use a version of the civil standard that is similar to the criminal standard:
“… 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”.”6
She did not suggest that this was a concern to the Government.
10.
The only difference between Liberty and the Government on this point would,
therefore, seem to be whether this should be stated on the face of the Bill or left to
judicial discretion. We can see no reason why Parliament should not make the
applicable standard clear on the face of the Bill and thereby increase legal certainty.
Amendment 1B
11.
The fair trial guarantees applicable in criminal proceedings also go further than
the relatively high burden of proof. Take, for example, the general rule against
reliance on hearsay 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.7 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. Amendment 1B would ensure that these types of criminal rules of evidence
would apply in SCPO proceedings.
***
6
7
HL debate, 7th February 2007, col 729.
Prime Minister’s Speech to Labour Party Conference, 27 September 2005
7
Amendment 2 – SCPOs as an Easy Alternative to Prosecutions
Clause 1, page 1, after line 10, insert –
“(c)
it is informed by the Director of Public Prosecutions either that there is
no reasonable prospect of a successful prosecution of the individual in
respect of the involvement in serious crime in question or that such a
prosecution would not be in the public interest.”
Clause 1, page 2, after line 6, insert –
“(c)
it is informed by the Director of Public Prosecutions either that there is
no reasonable prospect of a successful prosecution of the individual in
respect of the involvement in serious crime in question or that such a
prosecution would not be in the public interest.”
Effect
12.
This amendment would prevent the High Court making an SCPO if it has not
been informed by the DPP that it would not be (A) reasonably possible or (B) in the
public interest, to prosecute the “defendant” for the “involvement in serious crime” in
question (i.e. facilitating serious crime or committing a serious crime).8
Briefing
13.
Liberty is greatly concerned about the risk of SCPOs being used to punish an
individual for involvement in serious crime without having to undergo the rigours of a
criminal trial. The Government has repeatedly stated that this is not its aim:
“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
law enforcement agencies to get around troublesome prosecutions. I assure
the House that that is not the intention.”9
8
9
Clause 2
HL Deb, 7th February 2007, col 729 (per Baroness Scotland)
8
This amendment is designed to give some meaningful, legal substance to these
statements of intent.
14.
There is not, at present, anything on the face of the Bill that would prevent
SCPOs being used as an easier alternative to “troublesome prosecutions”. In fact, the
Bill specifically includes “committing a serious offence” as a situation in which an
SCPO may be imposed,10 begging the question why not prosecute the person for that
offence? Previous experience of similar quasi-criminal orders shows that there is
every reason to fear that SCPOs will be used as a short cut alternative to criminal
justice. It appears that Control Orders might, in the past, have been used where
criminal prosecutions could have been brought. For example, in R v Secretary of State
for the Home Department (ex parte E)11 the High Court found that incomplete
consideration had been given to the possibility of prosecution.12 It has also become
very common for Anti-Social Behaviour Orders (ASBOs) to be used as a less
cumbersome alternative to criminal prosecutions as it is more straightforward to
collect and rely on hearsay evidence.
15.
Despite the limited time available to consider the Prevention of Terrorism Bill,
Parliament foresaw the risk of control orders being used where prosecutions were, in
reality, possible. In the House of Lords, with the support of both the Conservative and
Liberal Democrat Front Benches an amendment was inserted into the Bill to prevent
this occurrence. It read “The court may make a control order against an individual if it
... has been informed by the Director of Public Prosecutions that there is no
reasonable prospect of a successful prosecution of the individual for the terrorismrelated activity”.13 Lord Kingsland described the reason for the amendment as
follows:
“we regarded the insertion of this subsection as crucial to the protection of
the rights of the citizen. We must have exhausted all our efforts as to whether
10
Clause 2(1)(a)
[2006] EWHC 3208.
12
This was one of the reasons for the finding that the Home Secretary had exceeded his powers under
the Prevention of Terrorism Act 2005 and the quashing of the order.
11
13
Cf HL Deb, 8 Mar 2005, col 629 (Clause 2(1)(c) of the Bill). Sadly, the Lords amendment was
eventually replaced with the weaker compromise currently contained in Section 8 of the 2005 Act.
9
a proper prosecution can be brought in a criminal court before turning, as a
matter of last resort, to a control order.”
We believe that a similar provision is needed in this Bill to address the same risks.
16.
The amendment we propose follows the amendment described by Lord
Kingsland very closely. It does, however, differ in two ways which would make it
easier to obtain an SCPO. First, the DPP would only have to state that a prosecution
would not be reasonably possible in respect of the involvement in serious crime in
question. This means that a prosecution for another non-related criminal offence
would not affect the ability to obtain an SCPO. Secondly, even if a relevant
prosecution were reasonably possible, this would not prevent an SCPO being made if
the prosecution would not be in the public interest. This latter change was inserted in
response to the concern raised by the Government during the Committee Stage
debates:
“Your Lordships will know that in making decisions the prosecution may often
decide that a particular crime could be prosecuted but in the public interest it
would not be appropriate under the circumstances”14.
17.
During the debates at Committee Stage, Lord Bledisloe argued that a previous
amendment similar to this one “was totally incompatible with those that we have just
debated [i.e. equivalents to amendments 1A and 1B on the criminal standard or proof
and evidential safeguards]”.15 He argued:
“The judge can make an order only if he has been satisfied beyond reasonable
doubt on evidence admissible in a criminal trial that the man in question has
been guilty of the criminal offence. If he is satisfied, he cannot be satisfied that
it is not possible to prosecute the person unless the individual is outside the
jurisdiction.”16
Lord Bledisloe seems to be arguing that if the criminal standard of proof and
evidential rules applied to SCPO applications a criminal prosecution would always be
14
Baroness Scotland, HL debates, 7th March, col 255.
15
HL Deb, 7th March 2007, col 254
16
Ibid
10
possible and it would never, therefore, be possible for the DPP to state that a
prosecution is impossible. We do not accept this analysis for the following reasons.
First, an SCPO can be made against a person even if they have not done anything that
would constitute a criminal offence, i.e.: facilitating the commission of a serious
offence by another person with no intention or belief that s/he is doing so;17 or
conducting himself in a way that is likely to facilitate the commission of a criminal
offence.18 The consultation preceding the Bill explained that SCPOs were designed to
be used against the ‘significant numbers of individuals at the fringes [of criminality]
who cannot be pursued in the main trial, and for who a separate trial is not thought
worthwhile’.19 Secondly, as currently drafted, even if a prosecution were possible, an
SCPO could be obtained if the prosecution were not in the public interest.
***
Amendment 3 – Defendant’s Conduct Facilitating the Commission of a
Serious Crime
Clause 2, page 2, line 28, delete sub-clause (c)
Clause 2, page 2, line 44, delete sub-clause (c)
Clause 2, page 3, line 7, delete sub-clause (c)
Clause 3, page 3, line 37, delete sub-clause (c)
Clause 3, page 4, line 6, delete sub-clause (c)
Clause 3, page 4, line 14, delete sub-clause (c)
Effect
18.
This amendment would restrict the use of SCPOs to situations in which a person
has: (i) committed a serious offence; or (ii) facilitated the commission of such an
offence. It would prevent SCPOs being made where a person has simply “conducted
himself in a way that is likely to facilitate the commission by himself or another
person of a serious offence”.
17
Clause 2(1)(b) taken with Clause 4(2)(a)
Cf Clause 2(1)(c)
19
Page 31
18
11
Briefing
19.
Liberty is profoundly concerned about the way in which Part I of the Bill
defines “involvement in serious crime”. “Involvement” currently includes: (i) the
commission of a serious offence; (ii) facilitating the commission of a serious offence;
and (iii) conducting yourself in a way that is likely to facilitate the commission by you
or another person of a serious offence (whether or not such offence was committed).
This amendment focuses on the third limb of the definition which we consider to be
far too wide. It would, for example, catch individuals who are not criminally culpable
but whose innocent actions have facilitated in some way the commission of a serious
offence by someone else. This risk is exacerbated by the fact that the court is
prohibited from considering whether the “defendant” had any knowledge, intention,
belief or suspicion that his/her actions would have this effect.20
20.
During Committee Stage, the Government seemed to acknowledge that most
applications for SCPOs will come under the first two elements of the definition of
“involvement” in serious crime. Nevertheless Baroness Scotland stated that “there
are instances where third [element] will be appropriate and useful”.21 During the
Committee Stage, the Government gave the following examples of such situations:
“The sort of behaviour that we are talking about here is where a person or
organisation turns a blind eye to the likely outcome of their actions […]
They may not specifically intend to facilitate crime, but they are not taking
the precautions that we would expect reasonable people to take to ensure
that their actions cannot facilitate serious crime, and so their actions help to
bring real harm to others”.22
There need not be culpability on behalf of the person subject to the Order. This was
recognised in the Home Office consultation which preceded the Bill which 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
20
Clause 4(2)(b)
Baroness Scotland, HL debates, 7 March 2007, col 286.
22
Baroness Scotland, HL debates, 7th March 2007, col 286.
21
12
could be used to store drugs.23 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.
21.
It would appear from this that SCPOs are expected to be used as an alternative
to regulation for industry sectors which 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’.24 In Liberty’s opinion the example given is, however, one where a
regulatory approach would be far more appropriate – especially given the detrimental
reputational implications for a business of being taken to court and subjected to a
Serious Crime Prevention Orders. We do not believe such broad powers to be
proportionate to the “usefulness” of being able to deal with the few instances of
serious crime that could be perpetrated by someone conducting himself in an
undesirable way. The Government has also sought to address concerns about this
aspect of the definition of “involvement in serious crime” by arguing that innocent
individuals who would otherwise be caught by the provision would be able to rely on
the defence of having acted reasonably, as provided for by Clause 4(3). As we discuss
in the context of amendment 4 below, we consider this to constitute an unacceptable
reversal of the burden of proof.
***
Amendment 4 – Unreasonable Actions Facilitating a Serious Offence –
Shifting the Burden
Clause 2, page 2, line 26, after “has” insert “conducted himself in a way that was
unreasonable in the circumstances and, by so doing, has”
Clause 2, page 2, line 28, after “was” insert “unreasonable in the circumstances and
was”
Clause 2, page 2, line 42, after “which” insert “was unreasonable in the circumstances
and”
23
Home Office Consultation: New Powers Against Organised and Financial Crime, July 2006, Page
10
24
Ibid, page 10
13
Clause 2, page 2, line 44, after “is” insert “unreasonable in the circumstances and is”
Clause 2, page 3, line 5, after “has” insert “conducted himself in a way that was
unreasonable in the circumstances and, by so doing, has”
Clause 2, page 3, line 7, after “was” insert “unreasonable in the circumstances and
was”
Clause 3, page 3, line 35, after “has” insert “conducted himself in a way that was
unreasonable in the circumstances and, by so doing, has”
Clause 3, page 3, line 37, after “was” insert “unreasonable in the circumstances and
was”
Clause 3, page 4, line 4, after “which” insert “was unreasonable in the circumstances
and”
Clause 3, page 4, line 6, after “is” insert “unreasonable in the circumstances and is”
Clause 3, page 4, line 12, after “has” insert “conducted himself in a way that was
unreasonable in the circumstances and, by so doing, has”
Clause 3, page 4, line 14, after “was” insert “unreasonable in the circumstances and
was”
Clause 4, page 5, delete from “(a)” on line 4 to “his intentions, or” on line 6
Clause 4, page 5, delete from “(a)” on line 12 to “his intentions, or” on line 14
Effect
22.
At present, the Bill provides that if an individual carried out actions that
facilitated or were likely to facilitate the commission of a serious offence, s/he could
not be subjected to an SCPO if s/he shows that his actions were reasonable in the
circumstances. This amendment would remove this “defence” and shift the burden
onto the “prosecutor”, requiring it to show that the “defendant’s” actions were
unreasonable.
Briefing
23.
It is a basic principle of common law, adversarial criminal justice systems that
the prosecutor is required to prove its case against the defendant – the defendant is not
required to prove his innocence. This is undermined by this provision which reverses
14
the burden of proof by and requires the defendant to invoke the reasonableness
defence. As Lord Thomas explained in Committee:
“It is not appropriate to place a burden on a defendant with an innocent mind
to prove something in order to avoid the imposition of such a draconian
order. The law should punish only unreasonable actions; it should be for the
state to bear the burden of establishing that a person’s actions are
unreasonable.”25
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 appropriate for an
SCPO to be made against the individual.
24.
When this amendment was debated at Committee Stage Baroness Scotland said:
“we believe that it is appropriate for the burden to fall to the proposed subject,
because the particular reasons for his actions are likely to be within his particular
knowledge”.26 We do not agree. The matter which has to be established is whether the
actions in question are “reasonable in the circumstances”. This is not a test of whether
the actions in question were “reasonable” in the mind of the “defendant”. The
question is whether the actions were objectively reasonable, i.e. would the average
person in the street consider the actions reasonable? The defendant’s state of mind is
not determinative of this in any way. Objective reasonableness is a vague concept
which is difficult to establish and we do not believe it to be fair to impose this burden
on the “defendant”. As Baroness Anelay commented in Committee it is not possible
to “see any justification for applying the reverse burden of proof in this case”.27
***
25
HL Deb, 7 March 2007, col 278
HL Deb, 7th March 2007, col 280
27
HL Deb, 7 March 2007, col 279
26
15
Amendment 5 – Making “Serious Offence” an Ascertainable Concept
Clause 2, page 2, line 36, delete sub-clause (b)
Clause 2, page 3, line 21, delete sub-clause (ii)
Clause 3, page 3, line 45, delete sub-clause (b)
Clause 3, page 4, line 28, delete sub-clause (ii)
Effect
25.
At present, an offence can be a “serious offence” for the purposes of the Bill
even if it is not listed in Schedule 1 to 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 would only be a “serious
offence” if listed in Schedule 1.
Briefing
26.
At present the Bill allows the court to decide if a particular offence is serious
and if “involvement” in it warrants an SCPO, even if it has not been specified by
Parliament as a serious offence and listed in Schedule 1 of the Bill. This would do
great damage to the principle of legal certainty as it would be impossible for a person
to ascertain in advance what the likely legal consequences of their actions would be.
27.
What this also means is that, if a “prosecutor” believes that a particular offence
is serious (and that involvement in it warrants an SCPO), even though the legislation
does not specify that the offence is serious, it can bring an individual before the courts
and argue that the courts should consider that offence to be “serious”. Taken together
with the provisions that the “prosecutor” has no obligation to prove that the person’s
actions were unreasonable, this casts the net far too wide. The result is that many
innocent individuals could have to incur the distress and cost of being brought before
the court and required to produce a defence.
16
28.
In response to these concerns the Government uses the now all too familiar
argument that times change, legal flexibility is needed and the courts can be trusted.
Given the serious impact that an SCPO would have on a person’s reputation, rights
and freedoms such arguments are unsatisfactory. The current proposal would deny the
public the right to know when their behaviour might lead to them being subjected to
an SCPO so that they can alter their behaviour accordingly. Parliament must not
abdicate its responsibility for making the laws clear and accessible to the general
public and should not leave people in a legal limbo where they cannot predict the
likely legal consequences of their actions.
***
Amendment 6 – Obligation to Apply for Discharge or Variation of Order
Page 10, after line 13, insert following new Clause –
“17
Obligation to Vary or Discharge Order
(1)
The relevant applicant authority shall apply to the High Court in England and
Wales to vary or discharge a serious crime prevention order if it becomes aware of a
change of circumstances which means that the restrictions, prohibitions or obligations
on the order are no longer necessary to protect the public by preventing, restricting or
disrupting involvement, by the person who is subject to the order, in serious crime in
England and Wales.
(2)
The relevant applicant authority shall apply to the High Court in Northern
Ireland to vary or discharge a serious crime prevention order if it becomes aware of a
change of circumstances which means that the restrictions, prohibitions or obligations
on the order are no longer necessary to protect the public by preventing, restricting or
disrupting involvement, by the person who is subject to the order, in serious crime in
Northern Ireland.”
Effect
29.
This amendment would require the relevant prosecuting authority to apply to the
High Court for a variation or termination of the SCPO if it becomes aware of a change
of circumstances which means that an SCPO is no longer justified or proportionate.
17
Briefing
30.
If, due to a change in circumstances, an individual need no longer be subject to
an SCPO, the SCPO ought to be lifted. This might, for example, happen if a person’s
actions could no longer be of help to a criminal gang because all members of the gang
have been arrested. Similarly, if the particular restrictions of an order are no longer
necessary, they should be varied. This much is, we believe, uncontroversial. Indeed, at
Committee Stage Baroness Scotland stated:
“I agree with the spirit of the amendment, which would ensure a means of
amending or discharging an order, but the amendment is not necessary
because we have already made provision for this in Clauses 17 and 18”28
31.
We do not, however, believe that Clauses 17 and 18 would provide a sufficient
protection against SCPOs remaining in force when they are no longer justified or
proportionate. There are two main difficulties with the current provisions:
•
There is no obligation on the state to keep circumstances under review in order
to identify a relevant change affecting the need for an SCPO. There would be no
legal requirement or other incentive for the relevant prosecuting authority to
apply for a discharge or amendment of the SCPO. This amendment would turn
the power to apply to the Court for a variation into an obligation to make an
application where the state becomes aware of a relevant change of
circumstances. This would require the relevant prosecuting authority to keep
SCPOs under review.29 Given that only a very small number of SCPOs seem to
be envisaged this would not, we believe, constitute a disproportionate stress on
resources.
•
It will not always be reasonable to expect the person subject to the SCPO to
apply to the court for variation or discharge. First, this might involve significant
cost and time. Furthermore, s/he may not know about the relevant change of
28
HL Deb, 14th March 2007, col 805
29
In the context of control orders, Lord Carlile has stressed the need for regular review to ensure that
the order imposed remains proportionate (First report of the independent reviewer pursuant to section
14(3) of the Prevention of Terrorism Act 2005”, 2nd February 2006, para 49)
18
circumstance. The prosecuting body may have access to intelligence or evidence
showing a change of circumstance which it has not disclosed. Imagine, for
example, that a bank was subjected to an SCPO because it was believed to be
facilitating the financing of terrorist group overseas. That group may have been
broken up by overseas law enforcement agencies without the knowledge of the
bank, meaning that the SCPO is no longer necessary. The bank could not be
expected to apply for the Order to be discharged but the prosecuting authority
should be required to do so to ensure that an unnecessary SCPO does not remain
in force.
32.
This amendment has been changed since Committee Stage in response to a
concern raised by Baroness Scotland. She commented of the previous amendment “it
would mean that when the applicant authority did not make such an application
because it was not aware of the change of circumstance, it would be in breach of a
statutory obligation.”30 The revised amendment avoids this risk as it only requires an
application to be made if the prosecuting authority becomes aware of the change of
circumstances in question.
***
30
HL Deb, 14th March 2007, col 805
19
PART 2: ENCOURAGING OR ASSISTING CRIME
Amendment 7 – Acting reasonably
Clause 40, page 25, after “commission” on line 18, insert – “and
(c)
his act was unreasonable.”
Clause 41, page 25, after “of them” on line 27, insert – “and
“(c)
his act was unreasonable.”
Clause 46 – stand part
Effect
33.
This amendment would require the prosecution to establish that a defendant’s
act was unreasonable in order to convict him/her of an offence under either of Clauses
40 or 41 of the Bill. It would also remove the defence of “acting reasonably” in
relation to these offences.
Briefing
34.
As one commentator has explained:
“the belief offence differs from the intent offence in that it will sweep up
persons who have to deviate from normally lawful routines to avoid criminal
liability: taxi drivers, fertiliser sellers, weighbridge operators, generous hosts,
shopkeepers and so on. If they carry on providing their services or
ministrations, knowing or believing that they will assist a crime, they will
commit the belief offence. The offence will enlist a mixed cast: there will be
sheep and goats.”31
The Government has itself acknowledged that the offences in Clauses 40 and 41 of
the Bill would in principle inappropriately cover some the kinds of activity:
“D, a motorist, changes motorway lanes to allow a forthcoming motorist (P)
to overtake, even though D knows that P is speeding;
31
G.R.Sullivan, “Inchoate Liability for Assisting and Encouraging Crime – the Law Commission
Report”, Criminal Law Review, 2006, Dec, 1047-1057, at 1054
20
D, a reclusive householder, bars his front door to a man trying to get into his
house to escape from a prospective assailant;
D, a member of a DIY shop’s checkout staff, believes the man (P) purchasing
spray paint will use it to cause criminal damage”.32
In its 2006 Report the Law Commission also highlighted how the belief offences
could sweep up justified behaviour:
“We recognise that extending liability beyond cases where it is D’s intention
that the conduct element of the principal offence should be committed, raises
the spectre of d incurring criminal liability for ostensibly lawful acts. A
protestor may believe that his or her lawful protest will encourage the
commission of retaliatory criminal conduct by others. Authors, journalists and
publishers may believe that material which highlights what some would
consider to be cruel or barbaric practices will encourage others to commit
offences against those carrying out the practices”. 33
35.
Where an action is entirely reasonable and is not intended to encourage or assist
in the commission of an offence by another person it should not be criminalised. This
much is uncontroversial. The question here is who should bear the burden of showing
that the actions in question were reasonable? At present the offences in Clauses 40
and 41 of the Bill cast the net very wide, catching the kinds of behaviour set out
above. The Government then expects the defendant to do the work of using the
vaguely worded defence in Clause 46 to try to wriggle out of the net, establishing that
their actions were reasonable in the circumstances and should not, therefore, lead to a
criminal conviction.
36.
We have a number of concerns about this approach. First, it could mean that the
motorist, reclusive householder or demonstrator in the above examples might be
subjected to the stress of being prosecuted and having to defend themselves in court.
Secondly, establishing the reasonableness of one’s actions is a very high hurdle to
cross. H/she has to persuade the jury that his/her actions were reasonable and should
not carry criminal liability. This may well prove difficult given the inherently
32
33
Law Commission 2006 Report, para A.63
para 3.45
21
uncertain concept of “unreasonableness”. Liberty believes that the burden of showing
the unreasonableness of the defendant’s actions should be borne by the prosecution
and that the belief offences in the Bill should only cover actions which are
unreasonable in the circumstances. This would be significantly fairer given the greater
resources of the state and would protect the public against any risk of questionable
prosecutions being launched.
37.
In response to this argument Baroness Scotland commented:
“Only the defendant will be in a position to explain why he or she acted as
they did. The particular circumstances that justify their behaviour will be
peculiarly within their own knowledge. As in all cases in which the burden of
proving a defence is on the defendant, the standard of proof is the balance of
probabilities.”
As discussed above in the context of amendment 4 we do not agree with this
argument. The matter which has to be established is whether the actions in question
are “reasonable in the circumstances”. This is not a test of whether the actions in
question were “reasonable” in the mind of the defendant. The question is whether the
actions were objectively reasonable, i.e. would the average person in the street
consider the actions reasonable? The defendant’s state of mind is not determinative of
this in any way. Objective reasonableness is a vague concept which is difficult to
establish and we do not believe it to be fair to impose this burden on the defendant.
Jago Russell and Radhika Saba, Liberty
22