Proceeds of Crime Bill

[back to previous text]

Stephen Hesford (Wirral, West): The hon. Gentleman makes a fundamental mistake. We are discussing a criminal procedure. It chooses to use the balance of probabilities, but it is none the less a criminal procedure.

Mr. Grieve: That is an interesting point. I think that I said earlier that it is a hybrid procedure. If it is a criminal procedure, I do not think that criminal procedures should be based on the balance of probabilities or the civil standard of proof. That would be an extraordinary departure from established principles of law in this country. However, I have never understood that to be the case. If one looks at it, it is plainly a hybrid, or, at least, a civil procedure—it is not a criminal offence to have the assets, but one will lose them. To my mind, that is akin to a civil procedure.

11 am

Ian Lucas (Wrexham): Is not the essence of the procedure that it relates to criminals, and that it is not therefore a civil procedure?

Mr. Grieve: I disagree totally and fundamentally with the hon. Gentleman. You can be a murderer in prison, and you can bring a civil action—[Hon. Members: ``Steady on.''] No, I think that ``you'' is correct. Suppose, Mr. Gale, that you were a murderer in prison, and you wished to bring a civil action against prison officers in relation to having been assaulted. The hon. Gentleman is not telling me that, just because you happen to be a murderer in prison, a lower standard of proof or, perhaps worse, a higher standard will be imposed on you to prove your case in relation to that assault. That is plainly nonsense.

Ian Lucas: Is not the difference between the two cases presented by the hon. Gentleman that the second is consequent on a conviction, and is not an entirely unrelated procedure? The murderer to whom he refers has rights, but they relate to an entirely different action. We are talking about an action that is consequent on a conviction that takes place immediately before the procedure occurs.

Mr. Grieve: I disagree again with the hon. Gentleman. The reason for the Bill is the Government's desire and intention to widen the scope of confiscation so that it is further and further removed from the precise circumstances of the offence that give rise to the triggering mechanism. I would have greater sympathy with his point of view if there were a close link and nexus between the assets that were being confiscated and the crime that had taken place. The classic example of that is provided by the Drug Trafficking Offences Act 1986, which, before it was widened, took account of the precise assets or benefits accrued from the particular offence. That legislation was subsequently widened to take account of the history of the likely drug trafficking. As we have discussed, the merit of the Bill from the Government's viewpoint, which is a perfectly legitimate argument—

Mr. Paul Stinchcombe (Wellingborough): The hon. Gentleman makes an interesting point. He refers to the closeness of a nexus, but the relevant nexus is that between the crime and benefiting from it. How much closer can it be?

Mr. Grieve: As we have already discussed, the nature of the triggering offences may be wholly unrelated to the assets to be confiscated. I shall give an example, which is hypothetical but could happen. Suppose a middle-aged lady was convicted of three minor shoplifting offences, and those offences benefited her by a few pounds at most. However, it is brought to the notice of the prosecutor that, in fact, the individual is strongly suspected, although she has never been convicted—

The Minister of State, Scotland Office (Mr. George Foulkes): Brink's-Mat, I suppose.

Mr. Grieve: Yes—of having been involved in Brink's-Mat. This example relates precisely to the Al Capone or Capone mechanism that we were discussing last week. The prosecutor might say, ``Here is a golden opportunity for us. Although this person was convicted on minor matters from which there has been no real visible benefit, we are convinced that under the confiscatory procedure we will be able to recover millions of pounds of illegally acquired assets.'' I have no objection to that. It is the merit of such a huge, wide process. However, it reinforces the fact that we should be careful about the abrogation of the ordinary civil rights of that person.

Mr. Stinchcombe: Will the hon. Gentleman clarify the Al Capone point? Under clause 8, the court can recover only the money that is the

    ``benefit from the conduct concerned''.

There cannot be a closer nexus.

Mr. Grieve: I am not persuaded by that argument. I should be interested in receiving enlightenment from the Minister. I do not understand the procedure to be about that. The hon. Gentleman will correct me if I am wrong, but the confiscatory mechanism triggers a system by which it is possible to recover assets that are not related directly to the particular offence, on the basis that the person has a criminal lifestyle. It is the identification of the criminal lifestyle that gives rise to the confiscation.

Mr. Boris Johnson (Henley): We are all getting our knickers in a twist over the balance of probabilities because it relates to whether the defendant has a criminal lifestyle. The court must decide on the balance of probabilities whether the defendant has a criminal lifestyle, which as we discussed last week is difficult and absurd. That the matters under clause 4 must be decided on the balance of probabilities is a rum sort of triggering mechanism. The court must first decide whether the defendant has a criminal lifestyle and then whether he benefited from the conduct. If the chap does not have a criminal lifestyle, the court must decide whether he benefited from the criminal conduct. I do not understand why it is necessary to make the judgment whether the defendant has a criminal lifestyle, given that in either case it will be a matter of examining his criminal conduct and whether his assets can be taken away. If—

The Chairman: Order. I am being as lenient as possible. I appreciate that such issues are complex, but an intervention should not turn into a speech.

Mr. Grieve: I do not know whether the Minister wishes to intervene to clarify the matter. I shall repeat my understanding of it to the hon. Member for Wellingborough (Mr. Stinchcombe).

Mr. Stephen McCabe (Birmingham, Hall Green): Will the hon. Gentleman set my mind at rest? I am worried about the poor little woman with three shoplifting convictions.

Norman Baker (Lewes): Or man.

Mr. McCabe: I am concerned about anybody, woman or man, with three shoplifting convictions, when all of a sudden horrible draconian powers will be in place to seize her million of pounds' worth of assets. If the person cannot legitimately show where she got all those assets from, where on earth does the hon. Gentleman think that they came from? What right has he to protect that poor little woman with her luxury villas?

Mr. Grieve: I was about to produce my handkerchief to wipe away my tears. The Minister has not disagreed with me, and I maintain my central point that the hon. Member for Wellingborough is wrong.

Mr. Mark Field (Cities of London and Westminster): We have heard robust defences from the hon. Members for Wrexham (Ian Lucas), for Wellingborough and for Birmingham, Hall Green (Mr. McCabe). The crux of the matter is the idea of Opposition Members that if an individual has assets, he will then have to justify where they came from. On the basis of minor offences and the presumption of a criminal lifestyle, does my hon. Friend agree that that belief is a fundamental misunderstanding of the state's role towards an individual? That is the core of the debate that we are having today and that we will no doubt have until the middle of February.

Mr. Grieve: I agree entirely. There is clearly a major philosophical disagreement, which was apparent on Second Reading. I have every sympathy with the idea of trying to identify criminals and confiscate their assets. However, I am conscious of the presumption that it is normal to assume that somebody who possesses assets does so legitimately, unless that can be demonstrated to the contrary. That has been an established rule in this country for a long time. The burden is normally on people who wish to say that assets are illegally obtained to prove that, otherwise the burden of proof could be reversed in criminal proceedings and, indeed, all proceedings. Every person would have to spend their lives justifying everything that they do. That is not a principle that is compatible with maintaining civil liberties. On that theme, I differ entirely from some Labour Members.

Mr. Ainsworth: The hon. Gentleman is correct that all the matters are interrelated and that the confiscation procedures, and the attached burden of proof, will apply to those who are deemed to have a criminal lifestyle as well as persons who are subject to confiscation because of a case before a court. However, my hon. Friend the Member for Wellingborough is right, because we are discussing the amendments. Amendment No. 30 would change the burden of proof applied to those who are deemed to have a criminal lifestyle and to all confiscation cases. The matters are interrelated, and the would apply more widely than to those who are deemed to have a criminal lifestyle.

Mr. Grieve: I accept the Minister's point, but this is the Government's Bill. The burden of proof is on the Government to satisfy me—on the balance of probabilities, if not so that I am sure—that the Bill will not affect civil liberties. It was the Government's choice to word clause 6 as they did. He will appreciate that they could have kept the existing system and written a new clause to cover the wider situation, but they did not choose to do that. They have mixed the two matters together.

Short of rewriting the entire Bill—which is beyond my ability while I am also dealing with the Government's terrorism legislation on alternate days—I can only do my best to highlight problems. This problem is readily curable by substituting the civil standard of proof for the balance of probabilities, which is what I invite the Committee to do.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 31, in page 4, line 5, leave out `a balance of probabilities' and insert

    `the standard applicable in civil proceedings'.—[Mr. Grieve.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 16.

Division No. 2]

AYES
Field, Mr. Mark
Grieve, Mr. Dominic
Hawkins, Mr. Nick
Johnson, Mr. Boris
Tredinnick, Mr. David
Wilshire, Mr. David

NOES
Ainsworth, Mr. Bob
Baird, Vera
Baker, Norman
Brooke, Annette
David, Mr. Wayne
Davidson, Mr. Ian
Foulkes, Mr. George
Harris, Mr. Tom
Hesford, Stephen
Lazarowicz, Mr. Mark
Lucas, Ian
McCabe, Mr. Stephen
McGuire, Mrs. Anne
Robertson, John
Stinchcombe, Mr. Paul
Stoate, Dr. Howard

Question accordingly negatived.

 
Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index


©Parliamentary copyright 2001
Prepared 20 November 2001