Proceeds of Crime Bill

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Mr. Ian Davidson (Glasgow, Pollok): Does the hon. Gentleman want to make it more difficult or easier to take assets from convicted drug dealers?

Mr. Hawkins: We want a just result in every case. We do not want draconian confiscation. The hon. Gentleman has rightly been concerned throughout our proceedings with hitting the Mr. Bigs, and we share that view. Equally, however, he would not argue that merely because a Labour Government have introduced the Bill, the wording must by definition be right in every case. Our job as a parliamentary Committee is not to rubber-stamp proposals but to ensure that the wording is right and will be effective in achieving the objective that he and I share—to hit Mr. Bigs—while ensuring that powers are not introduced that are so draconian that they will turn us into a police state.

Mr. Davidson: Is that a yes or a no?

Mr. Hawkins: We are not trying to make it more difficult for people who are properly the subject of the new powers to have their assets taken away.

Mr. Ainsworth: You are.

Mr. Hawkins: No, we are not. We are trying to do our job and ensure that the only laws that Parliament passes are just and proper ones.

I have made my point, and I do not believe that there is any point in repeating it, but we hope that even if the Minister is not persuaded today—

Mr. Ainsworth: The hon. Gentleman may disagree with my comments, but he should not misrepresent them. He says that it is clear from my comments that we do not want a terribly high hurdle and that using the civil standard rather than the balance of probabilities would be a clear sign of the level of proof required. He may disagree with my comments, but in fact the burden of them is the reverse. The hurdle is being not lowered but clarified by changing the formula from the civil standard to the balance of probabilities.

Mr. Grieve: We doubt that.

Mr. Hawkins: Indeed we do. Obviously we are not going to agree. My hon. Friend and I will invite Opposition Members and others who are worried about getting the law right to vote against the Government's proposal and for amendment No. 31.

Mr. Grieve: The Minister has not entirely reassured me. His argument seems circular. On the one hand, he argues that there is no difference between the balance of probabilities and the civil standard of proof, but on the other, he chose, presumably following advice, to change the wording between the draft Bill and this version in order to effect that transformation. He now reassures us, by way of a subtext, that reference to the balance of probabilities rather than the civil standard of proof will not constitute a terrible hurdle to confiscation.

The Minister made some interesting and correct remarks about the history of the matter, and that is where my anxiety stems from. As he is aware, following the introduction of confiscation legislation, the judiciary, in trying to apply the rules of fairness that should colour its approach, reached the conclusion that the only proper test that should be applied in confiscation was the criminal standard. Parliament said that it was unhappy with that, as is its right. However, it is worth bearing it in mind that the judiciary, in evolving its own rules, reached that conclusion in 1990, and I am sure that it did so because it was worried about unfairness, which should always colour the view of Parliament, and especially of the Committee. If justice is to be seen to be done, it must be seen to be fair.

As the Minister appreciates, my intention in tabling, perhaps with tongue in cheek, a return to the criminal standard of proof was not to press the matter to a Division. I accept that Parliament has made a decision on that, but the Minister has acknowledged that, for several years and under certain circumstances, the courts have had some latitude to evolve their own rules about the flexibility within the civil standard. However, it is not inconceivable that the judiciary would also exercise latitude if we were to stick with the balance of probabilities.

The allegation that is made in confiscation proceedings is akin to fraud: a person is accused of owning assets that have been obtained fraudulently, or by other dishonest means. As that is the case, there are compelling arguments for leaving the judiciary with discretion. It would have that in greater measure if the balance of probabilities were replaced by the civil standard of proof.

My point might be akin to counting the angels on the head of a pin, because it is open to doubt whether one form of words will produce a hugely different approach from the other. However, I prefer to refer to the civil standard of proof. It is an expression that is currently used more frequently than the balance of probabilities. It also sends out a signal that, in deciding on matters in which the burden is firmly placed on the people who are suffering the confiscation to prove their case, the judiciary is exercising a test under the civil standard that can be tailored to the circumstances. Moreover, the Minister's officials initially thought that that was the correct test to apply.

Mr. Ainsworth: It appears that the hon. Gentleman wishes to return to the original wording in order to give the courts flexibility in deciding on confiscation up to and including the criminal standard. Is that the case? He has said that we are dancing on the head of a pin, but I am trying to identify how much more latitude would be allowed by the civil standard statement than by the balance of probabilities. The only potential difference is that flexibility would be allowed all the way up to applying the criminal standard in the case of confiscation. Is that his intention?

Mr. Grieve: No. If I had wanted to return to the criminal standard, I would have stuck out for amendment No. 30. I do not think that the court would return to that, but it would consider that the proceedings that are being brought are a serious matter, and the Committee needs to be of reminded of that.

I am in favour of confiscating ill-gotten gains, but the legislation is draconian. We do not wish people's legitimate assets to be taken away, but history teaches us that that might happen. On occasions, courts have refused to make such orders, or have mistakenly made them. As human affairs are imperfect, sometimes the wrong assets are targeted. Therefore, it is important that there should be safeguards for individuals. The court must apply the proper test.

As I listen to the Committee's discussions, I sometimes have a horrible feeling that the procedure is seen as a rubber stamp that follows after people are deemed to have a criminal lifestyle and to fall within the category—they have gone through the door, the door closes, down comes the stamp and away goes their money. I am sure that the Minister would agree that that is not what the legislation is about.

With regard to the circumstances that have been described, I believe that there should be safeguards. There is no doubt that much greater flexibility over civil and criminal standards has been introduced, certainly while I have been practising at the Bar. I have frequently conducted civil cases in which, at the end of the day, the judge has been only too happy to point out that he has reached his decision—just to rub it in for the party against whom he finds—because the evidence is overwhelming. If he is in a position to do that, it is helpful. Therefore, in my experience, judges have exercised greater flexibility.

I am worried that the balance of probabilities will constantly be thrown in the face of judges who have anxieties about cases, and that, although they may have doubts, and the case may not be clear-cut, they will go ahead and make their finding. If they had the civil standard of proof on which to rest, however, they would have greater flexibility in cases in which they might be concerned that injustice will be done. That is the nature of the difference. It is not a question of using the criminal standard of proof. All these matters are ultimately subject to some flexibility within the civil standard. I merely want to preserve that flexibility if a judge wishes to avail himself of it.

Mr. Davidson: Will the hon. Gentleman clarify whether, under the system that he proposes, it is likely that more or that fewer drug dealers would be able to retain their assets?

Mr. Grieve: I would hope that, under the procedure that we are discussing, exactly the same number of non-drug dealers would be able to retain their assets, and that exactly the same number of drug dealers would lose their assets. I am concerned not about drug dealers but about the innocent who may be put through this system with insufficient safeguards. We should not just be concerned about confiscating money from those who are guilty.

Mr. Davidson: I take your point about the innocent, but—

The Chairman: Order. I remind the hon. Gentleman to address the Chair. I have no view on these subjects.

Mr. Davidson: I am sorry, Mr. Gale.

Will the hon. Gentleman bear it in mind that the system comes into operation only when somebody is no longer innocent, because they have been convicted? This issue is not about the innocent—it is about the guilty.

Mr. Grieve: The hon. Gentleman cannot have it both ways. The procedure under discussion is not a criminal one. The criminal procedure is when the individual is found guilty of the specific offence that triggers the mechanism of this process. The Minister has made it clear that we are discussing a form of civil recovery, albeit the confiscation mechanisms are unusual, because although there are civil recovery mechanisms later in the Bill, the confiscation mechanism under discussion is a hybrid.

Nevertheless, I always remember being told, when I appeared in court on civil matters and the person concerned had a criminal record, that even villains have rights. If we start moving away from that, we are making a serious mistake. Therefore, however villainous the individual may have been to have landed himself in this process, he is entitled, while the process is continuing—as it is a civil process—to the protection of the law. The civil standard of proof gives him the protection that he should have.

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Prepared 20 November 2001