|Proceeds of Crime Bill
Mr. Stinchcombe: I was highly interested by the points made by the hon. Member for Beaconsfield, who used to be my Member of Parliament, and by the hon. Member for Lewes. However, I do not quite follow their argument. They seem to have missed the point that the provision is mandatory, but conditional. One of the conditions is that the court believes it appropriate for the process to be undertaken, which provides exactly the discretion sought. An alternative condition is that the prosecutor or the director asks the court so to proceed.
Mr. Boris Johnson (Henley): The whole point, surely, is that it is an alternative condition. If the director asks the court so to proceed, the second conditionwhether the court believes it appropriateis irrelevant. As I understand it, the Opposition's anxiety is that, although the director may be a wonderful fellowwe all hold criminals in contempt and want their assets to be removedthe mandatory nature of the clause will remove an extra safeguard, which is the ability of the judge to apply common sense, as my hon. Friend the Member for Beaconsfield described.
Mr. Stinchcombe: I am obliged to the hon. Gentleman for that contribution, which focuses the attention of the Committee on exactly the philosophical point at issue. The issue is not the lack of discretion vested in the judge, as that discretion is preserved; it is the alternative additional provision that enables the prosecutor or director to ask the court whether to proceed under the clause. The contributions from Opposition Members seem to beg the question of whether we trust the director or the prosecutor to act sensibly in those circumstances. If the hon. Member for Beaconsfield is right, and sentences might otherwise bite under clause 75, the director may want to proceed in the circumstances mentioned by my hon. Friend the Member for Glasgow, Pollok, in which a series of offences had been committed that showed absolute disregard for safety and were only for profit. Alternatively, he may not want to proceed. If he thought it sensible not to proceed, he would not do so.
Mr. Hawkins: I entirely understand the hon. Gentleman's point. However, he will also understand that the purpose of the Committee's scrutiny is to establish whether it is appropriate for the enacted Bill to contain provisions that are absolutely compulsive in their effect. We are not trying to undermine trust in a future director using his judgment; it is a question of the balance between Acts of Parliament removing judicial discretion, and whether to keep a traditional balance through the separation of powersas the hon. Gentleman, who is a qualified barrister, well knowswhereby the courts have some discretion and are not constantly being railroaded by Parliament in every dot and comma.
Mr. Stinchcombe: I disagree profoundly with that interesting contribution. Discretion to act when the judge thinks that it is appropriate is preserved. As the hon. Member for Henley (Mr. Johnson) said, we seek only to supplement that with discretion for the prosecutor or the director. To go through the process of setting up the agency and creating the post of director, and then to undermine it from the outset by not affording that person the discretion to exercise such power in appropriate circumstances would be absurd.
Mr. Grieve: The hon. Gentleman said something earlier that is important and may be useful to the Committee. He spoke about the need for the director to have this discretion, but are we not considering two separate ways of recovering assets? We are considering a civil route, which is aimed particularly at those people who do not have convictions, and we are considering a confiscatory route, in which the burden upon the defendant is exceptionally heavy.
In the case of the tachograph offence, does the hon. Gentleman not think that common sense might dictate, not that the assets are not recovered, but that the judge would say that, if assets are to be recovered on the basis of three tachograph offences in six years, the civil recovery route should be taken, in which the defences available to the individual are different and of a better quality?
Mr. Stinchcombe: I understand the hon. Gentleman's interesting point but will not deal with it directly at this stage, because it raises questions that affect the remainder of the Bill; however, the clause simply gives to certain parties the discretion to trigger proceedings if other conditions are satisfied related to the commission of serious offences. To give that discretionary trigger to both a judge and the director whose post we are establishing seems entirely appropriate. It is not railroading, or Moloch eating up the civil liberties of the nation, but creating a post and vesting it with discretion to supplement the discretion of the court in an entirely proper way.
Mr. Mark Field (Cities of London and Westminster): On the point made by the hon. Member for Wellingborough (Mr. Stinchcombe), it strikes me that the entire Bill is driven by the idea of recovering money. In a sense, justice and liberty have been put to one side; I addressed that on Second Reading. Hence, I can see why there is a mandatory provision: it triggers the process, which is about trying to get money as quickly as possible.
I have taken on board the comments of the hon. Member for Glasgow, Pollok in the debate on Second Reading and the comments today of the hon. Members for Wrexham and for Glasgow, Cathcart (Mr. Harris). We know about the appalling state of affairs, particularly in relation to drugs, in which individuals who illegally earn enormous amounts of money flaunt their wealth. Clearly, there is concern in many communities that individuals are able to get off scot freethat is not a reference to the constituencies that I just mentioned; we have many Scottish Members on the Committee.
I fully understand the anger in many communities that have been undermined by drugs. However, we must maintain the safeguards to which my hon. Friend the Member for Beaconsfield referred if we are to find a sensible way forward. If we have a mandatory approach in clause 6, which is a crucial clauseobviously, there are other issues about criminal lifestyle in subsection (4), which we will discuss laterand if the process is then driven by getting money from individuals on the basis that the police or other authorities know that someone is guilty, we are taking a dangerous path.
Mr. Davidson: Perhaps I should describe myself as the hon. Member for Glasgow, Moloch, for which I credit my hon. Friend the Member for Dartford (Dr. Stoate).
Fund raising has a valuable, important and significant roleI hope that much of the money will come to my constituencybut the principal function is to impose penalties on malefactors and to act as a deterrent. It distorts the position to suggest that the proposal is some sort of stealth tax, whether that suggestion was made accidentally or deliberately.
Mr. Field: I was not suggesting that it was just a stealth tax, but fundamental safeguards are needed. I was about to say that some self-serving arguments are advanced by those in favour of civil liberties which we were prepared to stand up against when we were in Government. However, I have grave concerns about Bills of this kind; in essence, the more that we allow the Home Secretary to appoint a director who has full, untrammelled rights to proceed and who can say to the court, ``You must do this, you must do that,'' the more it breaks down the concept of an independent judiciary, which is fundamental to our rule of law. Where this Bill leads, others will follow. Instinctively, I would say that in 99 per cent. of cases it seems to me to be entirely justified, because nothing is worse than seeing criminals getting away with it. But I refer again to what the hon. Member for Lewes said: one or two guilty people may get away with the proceeds of their crime if there is a discretionary approach, but that will ensure that many innocent people can rely upon essential freedoms.
Mr. Stephen McCabe (Birmingham, Hall Green): I want to be clear that the hon. Gentleman is saying that in 99 per cent. of cases the proposal is justified and there is nothing worse than seeing the criminal get away with it. What freedom is he protecting?
Mr. Field: The freedom to give the discretion to the court. The division between the Executive and the judicial system is, correctly, protected and enshrined in our rule of law. Measures such as this, which propose mandatory impositions on the courts, start the slide down a dangerous slope, and that is why my hon. Friend the Member for Beaconsfield tabled the amendments. I hope, therefore, that the Minister will take note of at least some of the issues that we raised.
Vera Baird (Redcar): It is imperative that the clause be couched so as to require the court to have regard to the issue of taking away the benefit of crime. It is also imperative that the proposal make it clear to anyone considering embarking on criminal activity that if they fit the criteria of having benefited from such activity, their assets will be taken away. It is three quarters of the purpose of the Bill, as the hon. Member for Beaconsfield observed at the previous sitting, to reduce crime. The clause is an important part of that aim.
It is nonsense for Opposition Members to suggest that judicial discretion is eroded by compelling the judge to embark on such a process. Clauses 2, 3 and 4 have built-in decisions on fact finding, and discretionary paths for the judge to take.
I, too, fall back on my experience as a member of the Bar, which is rather more up to date than that of the hon. Member for Beaconsfield. The Drug Trafficking Offences Act 1986 has been repealed.
Mr. Hawkins: We appreciate that the hon. Lady and some of her colleagues have the relevant experience. My hon. Friend and I are aware of the repeal of the Act; my hon. Friend was pointing out that he was dealing with such matters when the previous powers existed. That experience is most relevant, as the hon. Lady will concede. She is in severe danger in stating so boldly that there is no problem with judicial discretion. She must bear in mind that in another place some extremely distinguished lawyers, not least the Law Lords, may have serious problems with that. As a new Member, she should be careful about being so positive about what she says.
|©Parliamentary copyright 2001||Prepared 15 November 2001|