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Lord Lucas: My Lords, I support the amendments without professing legal knowledge as to whether they are right and achieve the effect they set out to achieve. My Amendments Nos. 18 and 34--for some reason they are grouped elsewhere--address the same question.

It seems unsatisfactory that the matter is left unspecified in the Bill. A crucial aspect of the Bill involved the basis on which magistrates are to come to

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a decision. We are looking at a penalty which by all standards is a criminal penalty. However it is expressed, it will be as burdensome as a criminal sentence for the person subject to it. He or she will suffer exactly the same stigma, inconveniences and burdens which they could under a criminal penalty. That it should be called civil merely seems to be a form of words to which we should not apply ourselves. We should apply ourselves to the fact.

Given the tendency to assume that we should have a burden of proof which is beyond reasonable doubt, we may wish to step back from that: for the test not to be beyond reasonable doubt but heavier than the 50:50 standard civil regime. If we enter that territory we cannot leave it to fate to spell out. We cannot leave it to the Secretary of State's obiter dictum in some form of secondary legislation. It has to be on the face of the Bill. I do not express any preference for any form of wording. But we have to establish on the face of the legislation what the burden is to be.

Lord Borrie: I am not sure of the logic behind the amendments proposed by the noble Lord, Lord Goodhart, in drawing a distinction between banning orders made on conviction and those resulting from a complaint. The noble Lord and I are satisfied with the proposed Section 14A but he is not satisfied with proposed Section 14B.

If it is desirable to have as a preventive measure banning orders based on the respondent at some time having caused or contributed to violence at a football match or something else, it is logical that if the court is satisfied that there are reasonable grounds, there should be a banning order. I cannot see why the noble Lord draws a distinction. I have more sympathy with the amendments tabled by the noble Lord, Lord Lucas, which are designed to make clearer in the Bill the standard of proof cited in another place as being necessary to satisfy a court that a banning order ought to be made.

Lord Cope of Berkeley: I am not a lawyer but either the proof should be beyond reasonable doubt--the criminal standard--or on the balance of probabilities, which is the civil standard. The Government said on a number of occasions that they intend the lesser, civil standard. I do not find that anywhere in the Bill. Whichever standard is decided should be in the Bill, so there can be no doubt and/or a great legal argument through the courts at some point, in deciding the burden of proof. If the standard is not in the statute or made legally clear in some other way, it is no use the Minister thinking it ought to be one thing or another.

The second strand is whether or not there should be a different test for proposed Section 14B, covering banning orders made on a complaint, as opposed to Section 14A. I understand the argument that where an order is based on a conviction obtained beyond reasonable doubt--the criminal standard--it can be based on one set of words, whereas when the order is to be made on a complaint and the balance of probability in the first place, the wording may need to be different.

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There is a clear difference between proposed Section 14B(4)(b), which states that


    "the court is satisfied that there are reasonable grounds to believe that making a banning order would help to prevent violence or disorder",

and the words that would appear if Amendment No. 33 were adopted, which are


    "the court is satisfied that making a banning order would help".

That presents a bigger hurdle for the police to clear before a banning order could be put in place. As a lesser standard of proof would be required on the balance of probability, there is something to be said for Amendment No. 1. I await with interest the Minister's response.

Lord Bassam of Brighton: I disagree with the noble Lord, Lord Goodhart, because, on the ground of consistency, the Bill has got it right--as my noble friend Lord Borrie said.

Amendments Nos. 1 and 33 suggest that the test should be that the court is satisfied that a banning order would help prevent violence and disorder at future matches. The words "reasonable grounds to believe" were added by the Football (Offences and Disorder) Act 1999. It seems to me that it remains the right test and is reflected in new Section 14A. We need to have consistency between new Sections 14A and 14B. I do not believe that that part of the test for the court should be different following conviction and an application by complaint. There must and should always be the need for an objective ground for belief and for that reason I urge the Committee to reject the amendment.

9.15 p.m.

Lord Cope of Berkeley: It does not seem to me that there is consistency. The Minister says that there is because the words in new Sections 14A and 14B are the same. If the standard of proof required is different, the effect is different. It is not consistent. Although the standard of proof for new Section 14B is not on the face of the Bill, we are told that it is the balance of probability. To prove something on the balance of probability is one thing, but, where an offence is involved, to prove it beyond reasonable doubt, as the court would require, is not consistent. The words are consistent but the different standard of proof makes it inconsistent.

Lord Borrie: Surely there is a consistency. Whereas the conviction in new Section 14A must satisfy the criminal burden of proof, the requirement in subsection (2) that,


    "the court is satisfied that there are reasonable grounds to believe that making a banning order would help",

is the same as in new Section 14B. In other words, the civil burden of proof applies to both.

Lord Campbell of Alloway: May we put on one side, totally forget and ignore what we are told in this Committee the Government intend but is not on the face of the Bill? That is no way in which to approach

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legislation. We are repeatedly told that the Government intend the civil test. At Second Reading the noble Lord, Lord Bassam, when dealing with this issue, said that there are two tests; the civil test for some matters and the criminal test for others. We have no clarification about either.

The only way in which we can proceed in a meaningful and constructive fashion is to consider the Bill as it stands without what the Government intend.

Lord Mayhew of Twysden: The noble Lord, Lord Bassam, paid us all the compliment of responding in a most assiduous way to at least some of what was said at Second Reading. May I remind him of what was said by my noble friend Lady Hanham? She is a magistrate of considerable experience and she expressed the greatest misgivings about the problem which would face the court unless there was expressed on the face of the Bill the intended standard of proof.

The noble Lord, Lord Bassam, said that in certain circumstances the civil standard of proof will come upwards on the scale to something closely approaching the criminal standard. That is where it applies to matters of exceptional importance. That does not help a lay magistrate and it does not do much to help a magistrates' clerk.

Therefore, I beg the noble Lord to think again and to express on the face of the Bill in plain language what the standard of proof is intended to be in each relevant particular. Otherwise, we shall have what is a difficult and controversial jurisdiction for the police and magistrates to discharge made much more difficult and dangerous.

Lord Bassam of Brighton: Perhaps I may add a further point of explanation. As I explained at Second Reading, proceedings under new Section 14B are civil proceedings; they are proceedings initiated by complaint and not a prosecution for a criminal offence. There is common understanding of that. Therefore, the burden of proof is there for the civil standard. It is not practice to spell out the standard of proof in each statutory provision. For example, proceedings for an anti-social behaviour order follow the same procedure as that proposed in new Section 14B.

I believe that the burden of proof is something of a red herring. Of course a conviction must be proved beyond reasonable doubt but we move on to the test in new Sections 14A(2) and 14B(2). That part of the test is the same in both cases and means exactly what it says. That picks up and amplifies the point made by my noble friend Lord Borrie.

The noble and learned Lord, Lord Mayhew, was right to say that at Second Reading I reminded the House of the level of proof that we were seeking to establish and we stick by that higher burden of civil standard of proof. We believe that that is right and appropriate in the circumstances, and I quoted the noble and learned Lord, Lord Scarman, to that effect.

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I am happy to take away the points that have been raised in this discussion and I shall of course do so. However, I believe that we are being consistent and that this follows on from something that is already established.

Lord Campbell of Alloway: In view of the discussion that we have had, I am most grateful to the noble Lord. When he takes away this matter, could he separate in his mind the burden of proof, which remains on the applicant and is not so stated in the Bill, in order to avoid the problem of the reverse burden which had to be considered in the case of Kibelene?

Secondly, having attended to that as a separate matter, will the noble Lord then deal with the standard of proof? The noble Lord refers to it as the "level of proof": it is the same thing. What level of proof is applicable to each relevant article of the Bill? We wish to know that by tomorrow when we must deal with the matter, and it will be crucial to our considerations. I apologise for labouring the point but it may save much time, not only today but tomorrow as well.


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