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Serious Crime Bill [HL]

It absolutely does not mean that that would be the case. Let us take as an example a people trafficker. The individual may spend a considerable amount of time travelling to China and another country in Africa, from which they have trafficked individuals. It may be appropriate, when looking at that particular individual, to set a condition preventing them for a certain period from travelling to those two countries after they leave prison. Why should we do that? Because we know from their modus operandi that those are the areas in which they operate. The condition will act as a ““preventer””, potentially, of serious activity. It is important to look at how this clause is set out. The first thing to say is that these orders can be made only by the High Court in England and Wales, and there are appropriate provisions for courts of a similar nature in Northern Ireland. All noble Lords who have had the privilege of appearing before the High Court—the noble and learned Lords, Lord Lloyd of Berwick, Lord Mayhew and Lord Lyell, the noble Viscount, Lord Bledisloe, and the noble Lord, Lord Thomas of Gresford—will, I hope, affirm that the High Court is well seized of the application of the law in civil cases and is attuned to the different balances that there need to be with regard to different assertions made about proof in a civil standard. The High Court judges of this country have no difficulty in differentiating between those issues that are serious and therefore need the balance of probability heavily weighted before the judges are satisfied, and those that do not. That is a premise on which I hope we can all agree. These orders are not simply to say whether an individual is guilty or not; they are preventive in nature. To take up the point made by the noble and learned Lord, Lord Lyell, the Strasbourg jurisprudence makes it clear that a measure will be held as criminal only if it is punitive. These measures are not punitive, but preventive; they are not an alternative to punishment through criminal law, but another string to the bow of the agency that is seeking to interdict crime. The punitive element comes into play only if there is a breach. We need to be frank. If one has an injunction made by a civil court not to behave in a specific way and one breaches that injunction, there is a punitive element there, too—either contempt or some other provision to enforce the order made by the court. It has never been suggested in those circumstances that those are criminal in nature, albeit that they are punitive to enforce an order.