Proceeds of Crime Bill

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Vera Baird: I regard my hon. Friends in the Committee as the most distinguished group of lawyers with whom I have been acquainted with for some time. I have no difficulty in relying on their judgment—or, indeed, on my own.

I shall relate some of my own experience to the hon. Gentleman—briefly, I promise, Mr. O'Brien. I have been involved in several cases in which apparently serious drug dealers were on the verge of being brought to book. The evidence against them has been strong. The decision of whether to plead guilty in many such cases has, in my experience, not been markedly influenced by guilt or innocence—perish the thought—or by a factor that one would have thought highly important: the considerable discount on sentence that one can earn by pleading guilty at the outset. That issue, too, is often on the back burner for such defendants. The question that they ask themselves is, ``If I plead guilty, to what extent will the Drug Trafficking Act bite on my boat and my house in the Caribbean, on my daughter's house in Hampshire, and on my own home? The judge is under pressure to get results in terms of trial turnover and so on, so can I persuade him that what he needs to slip to me to convince me to take the honourable course of pleading guilty, is to say that the Act will not bite on aspects a, b, c, and d?'' That is an appalling position into which to put a member of the judiciary. The bigger the Mr. Bigs—the ultimate targets of the legislation—the more danger there is of that occurring. In future the judge will be saved from that dilemma, because the clause requires him to proceed in the reasoned way set out and consider exactly the right course in terms of taking assets. He has no choice; he must embark on that process. However, the process also gives him an internal discretion which allows him to do justice. The clause provides an excellent balance.

I ask Opposition Members what is wrong or illiberal about sending out a clear message that if a person is convicted of crime, the court will have an obligation to consider removing all that it finds to have been the profits of that crime?

Mr. Hawkins: Will the hon. Member give way?

Vera Baird: I have finished.

Ian Lucas: The hon. Member for Cities of London and Westminster (Mr. Field) said something interesting. He referred to innocent people being affected by the Bill, and in particular the clause. That is the key misunderstanding. Opposition Members do not seem to have registered the fact that the legislation deals with people who have been convicted of serious offences. It is entirely proper that the rigorous provisions should kick in.

I have had some experience in the field—like that of the hon. Member for Beaconsfield, mine was some time ago. It is important that we as legislators accept that we have a legitimate role in the area. It is right that judges have their role in our constitutional system, but we must learn from our constituents that there is a real perception that drugs legislation has failed in the past. It is our responsibility to improve the present system. That is what the legislation is about. It is clear that the discretionary provisions that previously existed have not addressed the drugs problem, which has got worse over the years. That is why I am grateful to my hon.—and undoubtedly learned—Friend the Member for Redcar (Vera Baird) for making it clear that the compulsory element in the legislation is crucial because the deterrent is crucial. It must be clear from the outset that the Bill is about deterring people from committing serious criminal offences that affect our constituents.

Mr. Grieve: I do not want to labour the point, but this is all about what counts as serious offences. As we said earlier, the clauses are wide ranging. Unless the Government want to change the sort of offences dealt with in this part of the Bill, the provision will remain a complete catch-all, which would cover tachograph and health and safety offences as well.

Ian Lucas: I do not accept that. My hon.—and very learned—Friend the Member for Wellingborough referred to inherent provisions within the Bill that will prevent the tachograph case from reaching the stage that the hon. Gentleman fears. We are concerned with serious crime that gravely affects our communities. That is why the message of deterrence must be sent out. The mandatory element is crucial; removing it would undercut the legislation at its first stage.

10.15 am

Mr. Hawkins: I did not originally intend to make a speech, as opposed to an intervention, at this stage. However, I have been provoked into doing so by the previous two contributions from Government Members, and I shall briefly mention two important points in response to them both.

The hon. Member for Wrexham misses the crucial point that it is Parliament's job to ensure that legislation is precise and right. If the Bill were restricted to the ``serious offences'' that the hon. Gentleman spoke about—several of our later amendments are designed to be more precise about which offences are relevant—his argument might have greater force. However, our job as Members of Parliament is to deal with Government proposals as drafted. At present, the provisions could in practice cover many non-serious offences. If those on the Government Front Bench were to accept our later amendments, the Bill might end up as an Act that achieved what the hon. Gentleman said it would. At the moment, however, the Bill would not achieve that, and it is not good enough for Government Members to say, ``It'll be all right on the night. The director will sort it out and use his discretion.'' It is the job of Parliament to ensure that any potential injustice is dealt with as we work through a Bill line by line.

Vera Baird: Will the hon. Gentleman give way?

Mr. Hawkins: I will not give way to the hon. Lady, because she did not give way to me earlier. [Hon. Members: ``Oh.''] I pay tribute to the fact that the hon. Lady and the hon. Member for Wrexham are both experienced lawyers, but they are also both new Members of Parliament. When they have been in the House longer, they will realise that it is unwise to make such positive statements about what judges will do. The people scrutinising legislation in another place are the most distinguished judges in the country. The Law Lords will have strong views, which may differ markedly from the hon. Lady's. As I say, it is unwise for anyone at any level in the House—whether they be on the Front Bench or the Back Benches—and of any party to prognosticate about what judges will do.

Mr. Tredinnick: I have been listening to my hon. Friend, mindful of the remarks of the hon. Member for Redcar. If I understood correctly, it was argued that the Act had to be mandatory because criminals would threaten judges, and I was reflecting on whether that is the right approach. Can my hon. Friend expand on that?

Mr. Hawkins: I will. My hon. Friend has helped me because I was just coming to—

Ian Lucas: Will the hon. Gentleman give way?

Mr. Hawkins: I will give way to the hon. Gentleman in a moment. First, I will respond to my hon. Friend's point about the hon. Member for Redcar. She said that there were no civil liberties concerns, but she must recognise that the Government, and many Back Benchers, have received details of the serious concerns of two leading civil liberties organisations. During my time in the House, I have listened to intervention after intervention from Labour Members recommending amendments because Liberty says, or Justice says, that we need them. Liberty and Justice, two of the organisations beloved of Labour Members in the past, have expressed serious concerns about the Bill. The Government and Labour Back Benchers dismiss that now, simply because it is a Labour Government who are introducing the Bill.

Vera Baird: Will the hon. Gentleman give way?

Mr. Hawkins: In a moment. The hon. Lady doubts whether the Bill poses civil liberties issues, but she should acknowledge the serious concerns of civil liberties organisations.

Vera Baird: I am delighted to wave in public the representations made by Justice—of which I, too, am the proud owner. They do not raise the concern expressed by the hon. Gentleman. They do not suggest that this should be discretionary.

Mr. Hawkins: The hon. Lady—

Mr. Grieve rose—

Mr. Hawkins: I give way to my hon. Friend.

Mr. Grieve: Justice was precisely concerned that the

    ``draconian confiscation powers have such broad application, they should be mitigated by judicial discretion''.

Vera Baird rose—

Mr. Hawkins: The hon. Lady may have seen only the first Justice brief and not the two subsequent ones that my hon. Friend and I received. However, Liberty—throughout the 26 pages of amendments faxed to us—undoubtedly makes exactly that point. Labour Members should take that fact seriously.

Ian Lucas: I have great respect for those distinguished lawyers in the House of Lords who will comment in due course on the Bill. They may have presided over boards that deal with related issues—but knocking on doors in constituencies affected by the drug problem is not one of their areas of experience. At the moment the system does not work and does not have the deterrent effect that we want. We must act to improve the system, and the mandatory element is an essential part of the Bill.

Mr. Hawkins: The hon. Gentleman argues in a measured way and explains the difference between us. He knows, as does the Minister, that a judgment must be formed. My hon. Friend and I have made our judgment; the hon. Gentleman has made another. That is a rational approach, but we will stick to our guns.

Mr. Alistair Carmichael (Orkney and Shetland): First, I welcome the statement made by the Minister of State, Scotland Office on the review of the Scotland Office and the Justice Department of the Scottish Executive.

Members from Scottish constituencies must be mindful of the fact that much of the Bill comes to this House by virtue of a Sewel motion passed by the Scottish Parliament, so we should take cognisance of anything that comes from the Scottish Parliament on that point.

I raised a point with the Minister on the Scottish Affairs Committee, and again on Second Reading, about the accountability of Scottish Ministers. Today's position highlights the difficulty that I had previously identified. The hon. Member for Beaconsfield asked the Minister of State several pertinent questions. I understand why he did, but it was unfair, because the Minister cannot answer them. The person who can answer them is the Minister for Justice in the Scottish Executive. The Scottish Parliament has passed a Sewel motion, but a Special Standing Committee should consider the legislation. That would allow Ministers who are not Members of this House to give evidence.

The Minister's position is that we have a review, and it would be wrong to prejudge its outcome. I remain optimistic that he may be persuaded in some damascene way of the force of Opposition Members' arguments in favour of retaining a degree of judicial discretion. However, I accept that there is a pressing need for uniformity of provision, and while I bow to no one in maintaining the importance of an independent and distinctive Scottish legal system, I will not be party to seeing distinctions created merely for their own sake. Whichever decision is made on whether there is to be discretion, no particularly fundamental tenet of the Scottish legal system requires us to have a different position.

The hon. Member for Glasgow, Cathcart, who unfortunately is no longer here, gave an interesting example that related more to the conduct of the Crown Office than to the exercise of judicial discretion. I declare my particular interest, in that I was one of the Crown Office staff who dealt with proceeds of crime legislation. We do not lay too much stress on gossip from Strathclyde police. As a prosecutor and as a defence agent, I have dined in sufficient numbers of police canteens to know that they have different standards of evidence in such matters—evidence that does not meet the requirement for proof beyond reasonable doubt.

Listening to contributions from Government Members suggesting that there is a degree of discretion, and now things are going one step further, one could be forgiven for thinking that we were almost saying that the court must not proceed. All we are saying is that in a very few possible cases, in which there is a risk of injustice, the court should have the final discretion as to whether it will apply the tests. I do not understand why it is so important that judicial discretion be removed.

The hon. Member for Wellingborough made an interesting point, and I agree with much of the force of what he said. However, there is an important distinction, to which he has not given sufficient consideration. He referred to the discretion invested in the prosecuting authorities and in the director of the agency when he or she is appointed. Those are arms of the Executive. The judiciary is independent of the Executive. That is why it is important that the judiciary be given an equal measure of discretion.

There are problems with the exercise of judicial discretion. Anyone who has practised in the courts, especially the criminal courts, will be aware of that. I have the scars to bear testimony to it. One does not cure the difficulties with the judiciary by removing or fettering their discretion, but by considering how they are appointed and trained, and giving them proper guidance. I invite the Minister to think carefully before he throws the baby out with the bathwater.

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Prepared 15 November 2001