Standing Committee B
Tuesday 20 November 2001
[Mr. Roger Gale in the Chair]
Making of order
Amendment proposed [15 November]: No. 30, in page 4, line 5, to leave out the words `a balance of probabilities' and to insert the words
`the standard applicable for criminal proceedings'[Mr. Grieve.]
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking amendment No. 31, in page 4, line 5, leave out `a balance of probabilities' and insert
`the standard applicable in civil proceedings'.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I am trying to fathom out whether I will correctly pronounce the constituency of the hon. Member for Beaconsfield (Mr. Grieve) this morning, given that it was such a point of contention in the Chamber last night. He has given us two options for changing the standard of proof that will apply to confiscation proceedings. Before we adjourned last Thursday, he said that the amendments were probing amendments following the Government's decision to change the wording in subsection (7). The issue is important, as it has a crucial bearing on the way in which confiscation proceedings are conducted in the courts.
Amendment No. 30 would apply the criminal standard to the process of determining whether the defendant has a criminal lifestyle, whether he has benefited from any criminal conduct and the amount of the defendant's benefit. That would mean that the prosecution would have to prove beyond reasonable doubt all matters relating to the making of a confiscation order. It would restore the position to that which prevailed following the decision of the Court of Appeal in 1990 in the case of Dickens, which ruled that the criminal standard should be applied by the court in confiscation proceedings under the Drug Trafficking Offences Act 1986.
I recall that the then Government, whom the hon. Gentleman supported, said that they had always intended that the civil standard should apply to proceedings under the Drug Trafficking Offences Act. Indeed, amendments were introduced under the Criminal Justice Act 1993 to make it clear that the civil standard should apply both to the determination of benefit and to the amount to be recovered in drug and non-drug confiscation proceedings.
I am firmly opposed to amendment No. 30. If we were to change the standard of proof to that applicable in criminal proceedings, there would be substantial reduction in the effectiveness of confiscation proceedings. It would return us to the position that prevailed prior to the Criminal Justice Act 1993. There is a clear distinction to be drawn between the standard that applies to a defendant's trial and the determination of his or her benefits from such offences.
I come now to amendment No. 31. The hon. Member for Beaconsfield draws our attention to the current legislation, which stipulates
``the standard applicable to civil proceedings'',
and observes that we have changed that wording to ``a balance of probabilities''. The reason for the change is straightforward. In some civil proceedings, such as proceedings for contempt, the standard of proof is beyond all reasonable doubt. We wish to make it clear that that does not apply to confiscation proceedings. To avoid any doubt, we used the balance of probabilities formula in the Bill.
Mr. Nick Hawkins (Surrey Heath): I understand the Minister's point. Does he propose that the Home Office use the term ``a balance of probabilities'' in all future legislation, whenever it intends to use what we traditionally regard as the civil standard? My hon. Friend the Member for Beaconsfield pointed out that in other recent legislation the Government have used the wording of the civil standard.
Mr. Ainsworth: I do not want to give an assurance off the top of my head that we shall use a particular form of words on all occasions. If the hon. Gentleman bears with me, we shall explore whether changing the wording of the Bill makes any difference to the level of proof required. On Thursday, the hon. Member for Beaconsfield suggested in Committee that by referring to the balance of probabilities rather than the civil standard of proof in clause 6, we intended to make a substantive change to the standard of proof that will be applied in confiscation proceedings. That is not so.
The hon. Gentleman suggested that the flexibility that the courts claim attaches to the civil standard of proof would not be provided if we used the wording ``a balance of probabilities''. In my view, that is not correct, and our opinion is supported by case law. In the case of Re H in 1996, the Lords considered the standard of proof in a child care case. Lord Nicholls, when discussing flexibility, referred to the balance of probabilities rather than the civil standard. He went on to explain what is meant by the term ``a balance of probabilities''. He said:
``The balance of probability standard means that the court is satisfied that an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury . . . built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
From case law, we can be sure that the courts will continue to require the same sort of evidence as before in confiscation proceedings. I hope that the hon. Member for Beaconsfield is reassured by that, and is prepared not only to withdraw the amendment, but not to press amendment No. 31.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.''
Mr. Dominic Grieve (Beaconsfield): If the state decides to confiscate someone's assets in the circumstances outlined in the clause, is it not being alleged that the person concerned has fraudulently, or at least dishonestly, acquired those assets? The draconian consequences of the confiscation order point to the fact that the civil standard of proof should be a high one. Is not that an argument for using the civil standard of proof rather than a balance of probabilities, which the Minister accepts was introduced to make confiscation easier?
Mr. Ainsworth: The hon. Gentleman may understand these matters better than I do, but I have shown clearly the accepted precedent in law that the required standard of proof for the balance of probabilities varies with the seriousness of the offence. I do not know whether he contests that. The purpose of our wording is clear. We reject the amendment because it would be a retrograde step to accept it. It would apply the criminal standard to all confiscation proceedings, and that would be difficult to implement and would render the legislation useless. A change of wording from the civil standard to the balance of probabilities is not intended to change the evidence that is required. However, that is not the criminal standard. That standard applies in some civil litigation and that is potentially confusing. The standard is flexible. The more serious the allegation, the greater the degree of proof required by the courts under the balance of probabilities.
Mr. Hawkins: Let me take the Minister back to what my hon. Friend the Member for Beaconsfield said when moving the amendment. Conservatives understand the Minister's point about amendment No. 30. He said that he believed that it would be inconsistent with existing legislation to introduce the criminal standard of beyond reasonable doubt or satisfaction so that a court is sure. He pointed out the distinction between our proposal and previous legislation. We are not wholly persuaded. The Bill will give draconian powers, which troubles usthat is why we wanted to probe himbut I shall concentrate my remarks on amendment No. 31.
The Minister set out his reasons why the balance of probabilities is the Government's preferred option. However, he conceded in response to my hon. Friend that that standard is the lowest that we could have. The Government say that they do not want a terribly high hurdle that those who wish to use the powers must get over. We are worried about that. My hon. Friend rightly mentioned the draconian consequences of the Bill, and the Government should bear it in mind that the prosecution should not have a low and easy hurdle to get over. There should be proper safeguards.
The Minister is correct to discuss varying standards of proof in civil proceedings. However, as he conceded, there is a difference between the balance of probabilities and the civil standard of proof. The use of the civil standard formula would give the courts and all concerned a clear indication of the type of safeguards that are required. He and his advisers must reflect on the matter, because it will perhaps be addressed on Report, and certainly in another place.
The Minister extensively quoted the comments of Lord Nicholls, and the Law Lords will scrutinise the matter. He also referred to the manner in which the two different tests of balance of probability and the civil standard have been used in recent legislation. He must concede that the Government have used the words
``the standard of civil proceedings''
in legislation as recently as just before the general election. He has difficulty saying that we should not use the civil standard of proof in legislation because there are civil proceedings in which the criminal standard is used. Their Lordships will understand the signals that are intended to be sent by referring to the standard of proof in civil proceedings, as the Government have done in recent legislation.