Proceeds of Crime Bill

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Mr. Grieve: Does the Minister think that it is wrong in principle that if someone can advance a prima facie rebuttal of the assumption, it should not be for the director or prosecutor to show on the balance of probabilities that the rebuttal is not valid and to establish his case?

Mr. Ainsworth: No, I do not accept that. We are dealing with people who have been convicted of a criminal offence and who have a pattern of offences that display a criminal lifestyle, and we are giving them the opportunity, on the balance of probabilities, to prove that their property or their expenditure was not the proceeds of crime. The hon. Gentleman is simply expecting us to allow them merely to present evidence that the property might not be the proceeds of crime, and to reverse the whole burden on to the prosecutor to prove that the property is the proceeds of crime.

I suggest to the hon. Gentleman that that will not be possible in the overwhelming majority of cases. This is the hon. Gentleman who said that he would rejoice if he saw the legislation bringing in large sums of money. If it is his intention to make sure that those large sums do not come in, he should urge me to accept that we reverse the whole burden of proof and lose the possibility of confiscating the proceeds of crime, even in cases in which evidence presented is well below the balance of probabilities that he said was a low threshold.

Norman Baker: I do not seek to undermine the Bill in the way in which the Minister paints. However, I introduced paragraph (aa) into amendment No. 26, which states:

    ``The defendant leads evidence to entitle the court to refuse to make the assumption; or''.

That is not the same as saying, ``I am a gambler, so it is up to you to do something about it.'' If the defendant can show, to use my example, that a payment of £10,000 into his bank account coincided exactly with a national lottery win, would that not be evidence, on the balance of probabilities, that that £10,000 was not the proceeds of crime and therefore not confiscatable? Surely that is already covered in the Bill. On the balance of probabilities, the defendant would show that the £10,000 was not the proceeds of crime, and the court would be under an instruction not to confiscate that money. The amendment could lead to a lesser burden of proof. The person would simply have to present evidence that it may not be the proceeds of crime, which is different from what he was saying.

7.15 pm

Norman Baker: I was grateful for the Minister's earlier clarification in relation to subsection (6)(a), and I am happy to accept that the balance of probabilities test is in place. That makes my mind much calmer than it was when the amendment was tabled. However, I dispute that the words in the second part of amendment No. 26 have the construction that he seeks to apply to them.

Mr. Ainsworth: I am advised that they have that construction, and that if the amendment were accepted—I am not trying to play party politics—a much lower level of evidence would be required. Simply presenting evidence would lead to a double reversal on the prosecution who would have to prove the origins of the property in question. Before the hon. Gentleman decides whether to press the amendment to a vote, I ask him to consider it seriously that in the overwhelming majority of cases that would not be provable, and the proceeds of crime would not be confiscated. That is the advice that I have received about how the amendment would impact on the Bill. The application of an evidential burden would make the assumptions procedure ineffective.

In relation to amendment No. 76, the facts adduced for the consideration of assumptions are the details of the property held, received or spent by the defendant, as set out by the director in the prosecutor's statement. The process begins with a description of the defendant's property, and the defendant must then account for its lawful origin. As I explained, the procedure is designed to absolve the director and the prosecutor of the need to lead evidence as to the criminal origin of the property, and nor should any such requirement be imposed on them.

The amendment is flawed in another respect—it implies that there must be some connection between the offences on the charge sheet and the conduct the proceeds of which the assumptions are designed to expose. If, for example, a defendant had been convicted of fraud, the assumptions could not be made if no link was proved between the defendant's property and fraud. That approach is misguided. The purpose of the assumptions is to lay bare the proceeds of the defendant's entire past criminal career, regardless of the conduct involved.

Mr. Grieve: I apologise for not being present for the start of the Minister's speech. My various jobs led me out of the Room, then back in. That will cease at the end of this week.

The Minister's argument fills me with gloom. He has so neatly encapsulated the potential central flaw in this legislation: the complete lack of connection between the wonderful nebulous concept of ``general criminal conduct'' and the offences. He glories in it. It is a confiscatory mechanism designed to be targeted against people when the state has decided that it does not like the cut of their jib. Is that not why the safeguards that he wishes to dismiss out of hand are needed?

Mr. Ainsworth: If a repeat offender is deemed to have a criminal lifestyle under the assumptions procedure, amendment No. 76 invites us to prove that his property and assets are the proceeds of a specific crime. I do not know how the hon. Gentleman squares that with his desire to rejoice in the confiscation of the proceeds of crime. In current case law under European procedures, defences have been based on the notion that assets are not the proceeds of a drug-related crime.

When the assumptions apply, the burden of proof is reversed and I do not glory or revel in that. I want legislation that will confiscate the proceeds of crime from those with criminal lifestyles and will render their activities non-profitable, in many cases bringing them to an end. That is not revelling.

Mr. Grieve: The Minister refers to the proceeds of crime. I am not arguing against the Bill, but to get him off the high ground. The process will not confiscate the proceeds of crime: it will confiscate assets not linked with any particular offence that the defendant cannot prove to be legitimately obtained, which is what the procedure is designed to do. It is important to call a spade a spade. Only when we do so can we logically build the safeguards that justice requires.

Mr. Ainsworth: The safeguards in subsection (6) are appropriate and will prevent the confiscation of property that does not proceed from crime. They are designed to do so in a limited way, which does not allow people to hide the proceeds of crime. The hon. Gentleman has huge misgivings about that, which he has made plain. Without the Bill's assumptions, we will not have an effective confiscation procedure in cases of lifestyle criminals. The safeguards in subsection (6)(a) are adequate because they instruct the court not to make assumptions if a serious injustice will occur, and not to confiscate property if assumptions are shown to be incorrect. We will have to differ on that.

Mr. Davidson: Is this not another example of the Conservatives demonstrating that they are soft on drugs and drug suppliers? Given the assumptions about ``the relevant day'' in subsection (2)(a), and the ``period of six years'' in subsection (8), will the Minister clarify that he wants to attack the assets acquired throughout the entire criminal career of a particular individual? Can he guarantee that the assets acquisition process can be examined, or has to be defended, back beyond six years?

The Chairman: Order. The hon. Gentleman is referring to something that we have not reached yet. We are discussing an earlier amendment.

Mr. Ainsworth: I think that I could satisfy my hon. Friend on that point. If you allowed me to, Mr. McWilliam, I might be able to do exactly that under clause stand part or another amendment.

I come to the conclusion, much though the hon. Member for Lewes may regret it, that all the amendments would seriously weaken the Bill's provisions and prevent the confiscation of the proceeds of crime. They would create unreasonable hurdles for the director and, in some cases, an unreasonably low level of evidence to reverse the burden of proof and put it back on the prosecutor. I ask members of the Committee not to support the amendments unless they want exactly that to occur.

The Chairman: Before the debate is adjourned, it may be convenient for the Committee if, as a consequence of regrouping the amendments, I rule that there will be a Division—or not, as the case may be—first on amendment No. 24. There is a case for a separate vote on amendments Nos. 26, 34 and 76. If hon. Members choose to have such a vote, it will take place after the debate on amendment No. 25.

Debate adjourned.—[Mrs. McGuire.]

        Adjourned accordingly at twenty-six minutes past Seven o'clock till Thursday 22 November at five minutes to Nine o'clock.

The following Members attended the Committee:
McWilliam, Mr. John (Chairman)
Ainsworth, Mr. Bob
Baker, Norman
Clark, Mrs. Helen
David, Mr.
Davidson, Mr.
Field, Mr. Mark
Foulkes, Mr.
Grieve, Mr.
Harris, Mr. Tom
Hawkins, Mr.
Hesford, Stephen
Johnson, Mr. Boris
Lazarowicz, Mr.
Lucas, Ian
McCabe, Mr.
McGuire, Mrs.
Robertson, John
Stinchcombe, Mr.
Stoate, Dr.
Watson, Mr.
Wilshire, Mr.

 
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Prepared 20 November 2001