Proceeds of Crime Bill

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Vera Baird: The way in which a judge considers such issues raises serious questions. I have to differ from my hon. Friend. He cited an example of inner-city criminals—there are plenty in Redcar and I do not like them one bit. I do not think that the graver the crime, the lower the standard of proof required. I do not agree that if the public mischief is great, we cannot afford to give people the benefit of the doubt. I worry about such a line of thinking.

Mr. Stinchcombe: I am not saying that. When we deal with those serious matters, we should not be afraid to have a low level of proof applied in triggering provisions. Different protections can meet the needs of a particular case.

Vera Baird: I accept that my hon. Friend has a point. Several steps must be taken before the full process of finding against the individual is complete. However, the very commencement of proceedings against an individual is capable of having a draconian effect. It makes available much private information, such as financial particulars. It sets out in the public theatre details of how such individuals live their lives.

It seems to me that one has to be careful, even at this initial stage, not to bind the judiciary to a precise standard of proof that is more usually applicable between equal parties in the civil courts, which is not the case here. It follows from what the Minister said that such proceedings are likely only to be brought against somebody who is not guilty—that is, cannot be proved to be guilty—and who will never be proved guilty. Therefore, the individual will, for all forensic purposes, be not guilty at the outset. When earlier provisions were debated, the people under discussion were those who had already been found guilty of a crime. Consequently, the shift was less exceptionable. The advantage of a more flexible standard is that it builds in a sliding scale, which is not a discretion exercised in an undisciplined way but an appreciation, in a sense, that—contrary to what, perhaps wrongly, I alleged that my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) was saying—the graver the allegation, the more serious will be the consequences, not least to reputation, Certainly, the practical consequences will be more serious, so a more serious cast of mind will need to be applied to those grave allegations than to lesser ones.

In ordinary cases, the balance of probabilities—which is just what that phrase implies—is the appropriate test. I repeat that such cases are frequently between relatively well matched individuals. However, even in such a situation, in which the issue between the two parties—perhaps a bank and a business—may be about recovery of the amount on a cheque, once there is an allegation on one side or the other of fraud, the nature of the judicial process changes: it becomes a stage at which a finding that is quasi-criminal will have to be made. Consequently, the judge will

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automatically ratchet up a little the way in which he considers whether the allegation is proved to his satisfaction. I am not talking about the full criminal burden of proof, but a slightly higher test, which is precautionary and cautionary in the judge's mind.

That also works in ways that I do not like—I am trying to make a balanced contribution to the debate—and it applies, too, in domestic violence injunction cases. As a feminist, I am wholly on the side of readily finding that men are prepared to be violent. However, in that situation, judges will say that it is a civil proceeding, which is usually, of course, brought by a woman against a man, and the allegation may be only psychological damage, bad behaviour or harassment, and not quite criminal. However, if it becomes an allegation of serious violence, the judge will ratchet up his approach, step back and say that, in another situation, this matter would be tried on the criminal burden of proof by a jury of 12 people, so he will take it a little more seriously because he has to make an analogous decision to the one that the jury would make, although the consequences are different.

The problem is also presented in cases that concern contact with abusive parents—not parents who swear, but those who have committed abusive acts against a child, which are also fairly appalling allegations to level. A judge in civil proceedings will take a step back and will look with more care at the evidence about those allegations. Frequently, such evidence is difficult to bring because a child is not a satisfactory witness. Women's Aid and other organisations that support children and wives in such situations would say that the trouble is that once we bring in a dangerous allegation, the judge is far less likely to stop contact because he will apply a higher standard of proof. That is a source of difficulty, so contact goes on. It has implicit difficulties, for both the good and the bad.

Mr. Stinchcombe: I thank my hon. Friend for her interesting and thought-provoking contribution, and ask a question for clarification. Is she arguing for a higher but consistent evidential threshold to be applied on any kind of unlawful conduct that triggers the provision, or for a differential threshold that depends on the type and seriousness of the unlawful conduct in question?

Vera Baird: My hon. Friend makes an equally thought-provoking and positive contribution, and it is a good question. Are we looking for something that is set automatically a step above the balance of probabilities because it will almost always be a decision that involves a finding of criminality? I have taken my hon. Friend's example of somebody else's criminal conduct, but most of the time it will involve a finding of criminal conduct and so appear appropriate for the judge to caution himself against simply relying on the balance of probabilities. The existence of the example that the Minister gave in an earlier debate—that it could be somebody else's property—perhaps suffices to show that there is the flexibility, but my hon. Friend's point was good.

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I am less enamoured by the set of words in the amendment than my contribution has so far suggested. The balance of probabilities is a firm phrase, and it would be difficult to get away from applying that officially, unless a judge—the Committee will have to consider whether this will not follow—who, because of his training and practice, will in every other case apply a sliding scale, is unable not to do so in such a case. In which case, perhaps we are all arguing about nothing. However, it is a slightly artificial position to stick in ''the balance of probabilities'', when one understands that that might not be the test that is applied. I can see that I have puzzled the hon. Member for Spectator, South (Mr. Johnson), and I apologise.

Mr. Boris Johnson: I am puzzled, but perhaps not as puzzled as some on the Government Front Bench. It has been a pleasure to look at the marmoreal impassiveness of the Whip and the sterling impression that the Minister has given of being in deep slumber while the hon. Lady has rebelled from the text of the Bill and then found a snaking and labyrinthine way back towards supporting it. I do not know where she will end up, but I thought for a minute that she was going to agree with my hon. Friend the Member for Beaconsfield in his comment that it would be good not to fetter the judiciary. I thought that she was on the verge of agreeing, which is why a momentary frown of puzzlement crossed my brow. If she supports the amendment, I would be jolly grateful if she got to the point.

The Chairman: Order. The hon. Lady might have more chance to get to the point if interventions were kept short.

Vera Baird: I confess to the hon. Gentleman, who I know in fact represents Henley, that I did not think that his puzzled look had arisen at that point in my

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contribution. I accept the snaking back allegation, but it is not yet complete and the hon. Gentleman must wait a while. I thought that what was puzzling him was my assertion that it might be difficult for judges to keep the law. If that was not it, I will not amplify it further.

Mr. Johnson: My puzzlement extends to that point, too. If the hon. Lady wishes to expand on it, no one will be more grateful than me.

6.45 pm

Vera Baird: I will take up the hon. Gentleman's invitation and briefly add to my comments. The way in which judges are trained now is as I described. The Opposition have set out their stall, as it were. They are now at an earlier stage, in that there would be an automatic application of a graver test as the allegation became graver. Perhaps we should research whether there is as rigid a test as the balance of probabilities in any other recent legislation that sets out quasi-criminal allegations. If there is not, we will have the situation of a judge with embedded experience who, in practice, is required to apply a sliding scale and not a rigid test. The Bill will constitute the only exception. That is a difficult position, and the judiciary are unlikely to accept it readily. That explanation was not as short as I had hoped it would be.

That is the crux of my snaking and labyrinthine comments. I am concerned that we are barring the exercise of judgment in people who, after all, are paid for exactly that. They should be allowed to exercise some judgment within the framework that we will set down clearly for them. If the Minister appreciates that I have a real point and am not just being soft on crime, perhaps he might comment now or later in the debate about the judge's dilemma when faced with the flat test and the balance of probabilities.

Debate adjourned.—[Mrs. McGuire.]

Adjourned accordingly at thirteen minutes to Seven o'clock till Thursday 13 December at five minutes to Nine o'clock.

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The following Members attended the Committee:
McWilliam, Mr. John (Chairman)
Ainsworth, Mr. Bob
Baird, Vera
Baker, Norman
Brooke, Mrs.
Clark, Mrs. Helen
David, Mr.
Field, Mr. Mark
Foulkes, Mr.
Grieve, Mr.
Harris, Mr. Tom

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Hawkins, Mr.
Hesford, Stephen
Johnson, Mr. Boris
Lazarowicz, Mr.
Lucas, Ian
McCabe, Mr.
McGuire, Mrs.
Robertson, John
Stinchcombe, Mr.
Wilshire, Mr.

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