Serious crime — who is taking liberties?

There is no doubt that serious crime impacts upon society personally and financially. Research reveals that between 700,000 and 2 million women and children are trafficked across international borders every year. Baroness Scotland has stated that drugs such as heroin and crack cocaine cause harm which costs more than £15bn a year. HM Revenue and Customs has estimated that the loss caused by carousel fraud alone has cost the UK between £1.1bn and £1.9bn in 2004/2005.

The Serious Crime Bill had its third reading in the House of Lords on 9 May this year. It constitutes the 60th piece of Home Office legislation in the past 10 years. There were only 48 pieces of Home Office legislation in the previous 100 years. New legislation is being used by this government as a proxy for governing. I, and many other criminal lawyers, experience the ensuing mess which the courts are asked to solve. However, my fundamental concern lies in the repeated attempts to sweep aside the core essentials of a criminal justice system rooted in our bedrock: the burden and standard of proof. Juries must be satisfied beyond reasonable doubt that an individual is guilty before they can convict and before, often, prison ensues.

Part 1 of the Serious Crime Bill introduces a hybrid of a control order and an anti-social behaviour order (ASBO) called a serious crime prevention order (SCPO). It is a civil order which can be made if a High Court Judge is satisfied that a person has been involved in serious crime somewhere in the world and that the order would prevent that person’s further involvement in serious crime in England and Wales. The High Court is able to make a finding of fact that a person is involved in serious crime even though he has no criminal conviction. The standard of proof is the civil not the criminal one, on the balance of probabilities. The types of conditions that a SCPO may contain include prohibitions, restrictions or requirements in relation to travel, an individual’s working arrangements, modes of communication and access to or use of particular premises. Breach of the SCPO is a criminal offence punishable with up to five years’ imprisonment.

Baroness Scotland, when introducing the Bill, said 'these orders are not about punishing people without proof; they are not punitive. Rather, they are proposed to be preventative.' The tortuous logic appears to be that the word 'prevention' means that restrictions are not punitive. This is word play and the logic is fallacious. If evidence is required of this fallacy one need only look to the mental deterioration of Mahmoud Abu Rideh whilst subject to a control order. Restrictions of liberty are extreme. Such a restriction constitutes a punishment no matter what name it is given.

The Serious Crime Bill is another bold stride over due process. The first step was in the Crime and Disorder Act 1998 with the introduction of ASBOs. The government marched on with control orders under the Prevention of Terrorism Act 2005. And now this. Lord Goodhart described Part 1 of the Bill as 'the most authoritarian legislation I have ever seen promulgated in the United Kingdom in peacetime'. Lord Marlesford said that it is 'a step away from the light of democracy towards the shadow of totalitarianism'.

The government response is that we can put our faith in the judges to act reasonably. This is no answer to the shift away from the criminal burden and standard to civil. Put simply, judges will make these orders when no crime has been proved as we now understand the term. In any event, judges follow the laws of Parliament. A law which offends civilised values is in itself contrary to the rule of law as understood in the United Kingdom. South Africa under Apartheid was subject to the 'rule of law' but not in the sense as we now perceive it: a rule of law which fundamentally espouses civilised values.

The Joint Committee on Human Rights states in its report published on 25 April this year: '… on counter-terrorism policy and human rights we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside the criminal process and which avoid the application of criminal standards of due process. We are concerned that the introduction of SCPOs represents a similar step in relation to serious crime generally. In our view, the human rights compatible way to combat serious crime in the long run is not to sidestep the criminal due process, but rather to work to remove the various unnecessary obstacles to prosecution, for example by relaxing the current prohibition on the admissibility of intercept material…' (The House of Lords has added an amendment to the Bill proposing the use of intercept evidence)

Home Office statistics show that 9,253 ASBOs were issued up to December 2005— 47 per cent were breached and 55 per cent of those breaches resulted in custody. They are not effective. Control Orders continue to be an international embarrassment with criticism emanating from the European Commissioner on Human Rights and the European Committee on the Prevention of Torture. Yet the government doggedly pursues the same trend in relation to serious crime. It is time to stop.

The importance of preserving our basic principles as incorporated in our criminal justice system is not a new concept. I quote Thomas Paine: 'He that would make his own liberty secure must guard even his enemy from repression'.

Kirsty Brimelow practises as a barrister in serious crime from 187 Fleet Street, London. She is a member of the Criminal Bar Association Committee, a member of the Bar Human Rights Committee and a spokesperson for the Bar Council.