Proceeds of Crime Bill

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Mr. Hawkins: As the hon. Gentleman rightly said, we on the Conservative Benches wish to associate ourselves with amendment No. 24 and amendments Nos. 51 to 59. I want to expand a little on his comments because serious points have been put to my hon. Friend the Member for Beaconsfield and me by Liberty, which is an organisation that has always had all-party support. Indeed, it has support from several Government Members in the Committee, although not all of them are in the Room this afternoon.

Before anyone is accused of trying to tear out the heart of the Bill or protect the Mr. Bigs, let me say that Liberty does not want to undermine the legislation, but still has substantial concerns. It believes that the Government have not got the balance right. It provided some helpful international comparisons with the way in which the provisions operate in other jurisdictions. Without wanting to bore Committee members with legal cases, which I know would be dismissed by Government Members as lawyers trying to find loopholes, I want to draw attention to ways in which foreign jurisdictions have been used in the most serious recent cases in our courts.

One of Liberty's points is that bad law can lead to greater problems if the courts strain to criticise legislation that Parliament has enacted. That may lead to the exact consequences that worry Government Members such as the hon. Member for Glasgow, Pollok: that the courts' unhappiness about Parliament's drafting will lead to loopholes being created in the courts. He and I share the aim of not wanting the Mr. Bigs to escape, so we must ensure that the law is balanced and proportionate, which is what Ministers have claimed since Second Reading.

Lord Woolf, one of our most serious judges, and hardly one of the airy-fairy civil libertarians whom the Home Secretary has recently criticised, referred in a 1993 case to American cases on how the balance should be struck. I will set out what Lord Woolf has said, and I apologise to Committee members for the technicality, as they may not be familiar with the way in which such matters are set out in court.

Both Liberty and Lord Woolf are concerned that the application of the statutory assumptions in the Bill would create a mandatory forensic exercise in which there is potentially no rational connection between the facts proved by way of the trigger convictions and the ultimate facts presumed. Various jurisdictions have already considered in other cases what safeguard tests should be applied to determine when it is appropriate for reverse burden assumptions to be permitted.

In other words, courts in other countries, which are sometimes the highest courts in those lands, have considered the safeguards that are required to make the law work properly and ensure that civil liberties are not completely trampled over. The test has been expressed in different terms, but the requirements are similar. They are to make the initial application of assumptions by a court devoid of arbitrariness.

Lord Woolf discussed a case in the United States that he applied in connection with a case in this country. He said that there was a

    ``substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.''

That was the case of Leary v. the United States in 1969. In 1993, Lord Woolf said that that was the minimum safeguard without which it would be difficult to justify a reverse-burden provision. Lord Woolf is one of the most senior judges in the land, and he wants the laws to work and he, like us, wants to ensure that the Mr. Bigs are hit. He regards the phraseology used in the American case as the minimum safeguard. Liberty and the Conservatives are worried because the Government's proposals do not provide even the minimal safeguard that one of our senior judges regards as essential.

Liberty has identified many cases in Hong Kong, Italy, South Africa and Canada, but I shall not bore the Committee with those. There is little point in going though those cases in detail, although if the Minister mentions them, I may return to them at a later stage. That is the way in which the matter has been set out to us.

Stephen Hesford: Can the hon. Gentleman refer to any case in British law that has examined the assumptions that have been part of our law for a long time?

Mr. Hawkins: Yes. The case that received Lord Woolf's judgment was the case of the Attorney-General of Hong Kong v. Lee Kwong-Kut.

Stephen Hesford: Is Hong Kong British?

Mr. Hawkins: The case came to the Privy Council, which, as the hon. Gentleman knows, decides cases that fall for decision by our judges as a matter for our courts. The case was brought to the House of Lords, which is why Lord Woolf heard it.

Stephen Hesford: The hon. Gentleman knows that, strictly speaking, such cases are not part of our law, although they may be cited, and may be persuasive. Can the hon. Gentleman cite a British case that was decided in British courts?

Mr. Hawkins: The hon. Gentleman may not understand. Our Judicial Committee of the Privy Council, which consists of our judges, took the decision. The judges are those that sit in the House of Lords and they use our principles of jurisprudence. As a sensible lawyer, the hon. Gentleman is surely not suggesting that when Lord Woolf sits on a case that starts in England, that is authoritative, but if he sits—in this building—on the Judicial Committee of the Privy Council and uses all the principles of English jurisprudence to hear a case that started in Hong Kong before our responsibility there ended, his remarks are not part of English jurisprudence. I know that the hon. Gentleman would not suggest that. The principle is exactly the same: although the case started in Hong Kong, it is English jurisprudence.

After examining the minimum safeguards to which Lord Woolf referred, Liberty suggested that we needed to replace the word ``assumption'' with the word ``criterion''. Liberty set that out by reference to much case law, which it would not be helpful for me to go through in detail. Again, however, if the Minister refers to it, I may need to respond. This time, however, I hope that when Ministers respond to the amendment sensibly and moderately tabled by the hon. Member for Lewes, which we support, they will not indulge in party political knockabout, and will not accuse us of trying to undermine the principles of the Bill. We should be moving beyond that. We should be looking at serious minimum safeguards. Whether it is the Minister of State, who is proud of not being a lawyer, or the Under-Secretary who responds, I hope that whoever does so will not make the mistake of trying to attack our genuine concerns, which are based on the advice of Lord Woolf.

Mr. Lazarowicz: I had hoped to intervene during the hon. Gentleman's speech, and I hope that this point will be dealt with in due course. Does the hon. Gentleman believe that the application of the tests that he suggests, which would replace assumptions by criteria, would have any practical effect on the prospect of a court's reaching a different decision in a practical case? Does he not accept that the tests that he applied are likely to achieve a similar result when applied in an actual case? Rather than making a serious criticism of the line put forward by the Government in the clause, the hon. Gentleman is merely making a debating point.

Mr. Grieve: I had not intended to speak, but I shall do so briefly. The distinction between the approach in the clause and the approach suggested by the hon. Member for Lewes and my hon. Friend the Member for Surrey Heath seems clear. One is mandatory, whereas the other is a series of discretionary provisions, thereby allowing a measure of judicial discretion, when, currently, no such discretion is allowed—we have had this debate previously. That ties in, to an extent, with the different regime that we thought would exist between England and Wales and Scotland, but which will now, apparently, be disposed of in order to satisfy the Government's desire for uniformity, notwithstanding the arrival of devolution.

Mr. Davidson: Does the hon. Gentleman accept that any change is designed not to create uniformity but to improve the Scottish position?

The Chairman: Order. Before we chase down that road, that matter can be discussed under a later clause. It would not be in order to discuss it now.

Mr. Grieve: I shall not be drawn to a detailed examination of the Scottish position. However, the intention is simply to highlight the fact that there are differences in the Bill between the regime for England and Wales and that for Scotland. Judging by the comments of the hon. Member for Edinburgh, North and Leith (Mr. Lazarowicz), he seemed to be gently putting the same point that I had put earlier, which was to ask whether it will really make a difference. The Committee will recollect that when we were considering clause 6, I said that it might make a difference but probably not an enormous one. It is a safeguard provision. I preferred the Scottish approach, and in the same way, I prefer the approach of the hon. Member for Lewes and my hon. Friend the Member for Surrey Heath. It provides a measure of flexibility, whereas so much of the Bill has an inbuilt inflexibility, which is apparently designed to ensure that the Government's aims and objectives are achieved, and are not deflected by the problems of poor grocer creditors living round the corner, who have provided services to an individual whose money is to be confiscated, or, in this case, by a wishy-washy—perhaps I should use the word ``airy-fairy''—judiciary, which might get it into their heads that the assumptions that they are required to make are clearly not meeting the interests of justice in a particular case. In a nutshell, that is what this is about.

6 pm

Ian Lucas (Wrexham): Has the hon. Gentleman considered the effect of subsection (6), which gives considerable discretion to the court?

 
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