Terrorist Asset-Freezing etc. Bill [HL]

Lord Elystan-Morgan Excerpts

Monday 25th October 2010 Lords Chamber

[Lord Lloyd of Berwick]

I will not take up the noble Lord’s time further, but I shall obviously need to deal with that matter with the Minister who no doubt has given consideration to this important point.

[Lord Elystan-Morgan]

My Lords, I support the arguments and the amendment tabled by my noble and learned friend Lord Lloyd—not that he needs my feeble assistance in this matter. It seems to me that there are two flaws in the provision before us. Those flaws still remain, even with the amendment suggested by the Government.

The first stage might be called the “trigger” stage: the point at which the authorities have some jurisdiction in this matter. In the original Bill, it was at a point when there was reasonable suspicion, but in the amendment it is when there is reasonable belief. As the noble and learned Lord, Lord Lloyd, has said, those are two separate categories, but they are very close to each other.

Perhaps I may trouble the House a moment or two with this illustration. Let us think of Section 22 of the Theft Act and the provision dealing with the receiving of stolen goods knowing or believing them to be stolen. A judge will tell the jury very simply that even if the defendant is shown to be in possession of suspicion, that counts for nothing at all: there has to be actual knowledge or belief. But the same judge will normally say to the jury that of course there is a point where suspicion becomes so strong and convincing as to amount virtually to belief. I make that point as an illustration of the fact that the two estates practically merge at that point. That flaw remains even if the amendment were to be carried.

The other point is what might be called the boundary point. There are two stages: first, that you trigger the mechanism by way of a belief; secondly, that it must be belief as to some state of affairs. That, it seems to me, can be one of two things. It can either be a belief that a criminal act is in the course of being committed or has been committed; or that there is involvement within the accepted degrees of criminality in that act relevant to the provision. If one is concentrating on what is or is not a criminal act, that is a fairly simple matter to decide. Is the person you suspect or believe to be involved a person who would be a principal in the first or second degree, an aider and an abetter, et cetera, or is he beyond that pale?

If you draw the line at the point of criminality, it is perfectly simple, because you have a defined boundary. You can say, “That is the ne plus ultra of the law's authority in this matter”. If you extend that pale, where are you? Where is the boundary? I remember the very strong argument of the noble Lord, Lord Carlile of Berriew, some weeks ago in this matter. There may very well be a case for extending the boundary beyond that of actual criminality, but there has to be a boundary. That is my point about Clause 2. If you leave the boundary of actual criminality and assume any other boundary, with the greatest respect, you have to define it very closely.