Proceeds of Crime Bill

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Mr. Ainsworth: There is no definition of ``undue''. It is at the discretion of the court to decide whether undue delay has occurred. There are provisions in the Bill for any of the parties affected by the measures to make representations to the court on them.

Question put and agreed to.

Clause 41 ordered to stand part of the Bill.

Clause 42

Restraint orders

Question proposed, That the clause stand part of the Bill.

Mr. Grieve: I seek clarification from the Minister on one matter. I want to draw it to the attention of the Committee, because it may flag up a point of interest. One of the features of restraint orders as provided for under subsection (4) is that once the money has been restrained, you may be able to make use of it in a number of ways, under subsection (3), which states:

    ``make provision for reasonable living expenses . . . make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation . . . subject to conditions.''

However, subsection (4) states:

    ``an exception to a restraint order must not make provision for any legal expenses which—

    (a) relate to an offence which falls within subsection (5), and

    (b) are incurred by a person against whom proceedings for the offence have been started or by a recipient of a tainted gift.''

Subsection (5) provides definitions.

I suppose that if you have a multimillionaire whose assets are placed under restraint, it would be undesirable if the money were frittered away on lawyer's fees as the case piled up, month after month, in relation to the offence for which he has been charged. Equally, however, it is a slightly odd state of affairs, especially in the public mind, if a Mr. Big who has yachts, villas, houses and motor cars is in receipt of legal aid on a full certificate. Given the way in which the legal aid principles operate, I wonder whether difficulty might arise if, for instance, legal aid were not granted for something that he wanted to deal with in the course of his defence. In those circumstances, he might feel aggrieved, and say, ``I'm perfectly prepared to spend my own money, but I'm not being allowed to, because it's subject to restraint.'' That raises an interesting human rights point, which I just wanted to flag up.

9.30 am

Can the Minister provide a little detail about the background to the provisions? I suspect that they applied in the earlier regime. Will he explain what happens at the end of the day? Will you end up with a legal aid bill of £5 million for convicting Mr. Big, without any regard to the fact that the money that was restrained and recovered would have covered that amount? That is bad PR for the legal system. Will the Minister explain how the system is designed to work?

The Chairman: Order. I did not want to interrupt the hon. Gentleman's peroration, but he used the word ``you'' many times. I have no intention of paying anyone's legal aid bill of £5 million.

Mr. Wilshire: I am concerned about two or three matters in the clause. First, under subsection (1) it seems that the court can make an order against any specified person rather than the person against whom proceedings are being considered. I understand why that might be so, in that there could be associates who hold property jointly with the person being investigated. However, it is worrying if we are being asked to give the court power to go on a fishing expedition, when it could be said, ``So-and-so might know the other person, so let's just slap a restraint order on him, too.''

I shall take the Committee back to the circumstances in which my sister and I are trying to sort out my mother's estate and distribute it according to her wishes. If by any chance I, or my sister—I have no reason to believe that my sister is involved, but I shall leave the Committee to make up its own mind whether this might apply to me—were caught up in such a procedure, would that mean that someone could prevent my mother's assets from being disposed of, on the offchance that that might suit someone's purposes later on? Will the Minister reassure us that there must be good reasonable grounds for suspicion rather than allowing a fishing expedition on the offchance that something will be caught?

My hon. Friend the Member for Beaconsfield touched briefly on my next point. Subsection (3) refers to any ``reasonable legal expenses''. What are reasonable legal expenses? I enter such a minefield with some trepidation in the knowledge that there are many lawyers in the Committee. I am sure that they would tell me that reasonable legal expenses are whatever they usually charge. That is unacceptable. I have a vested interest, in that my young son is a barrister and he complains regularly that he is not paid enough. [Hon. Members: ``Shame.''] I say shame, too, because sometimes he cries on my shoulder about it. I should make it clear that my spurious legal advice or reasoning owes nothing to my son, but everything to me. I would not wish him to be held responsible for anything that I might say.

Given that we will be almost certainly dealing with criminal charges at some stage, it must be made clear whether ``reasonable legal expenses'' in such circumstances would be judged on the basis of the legal aid payments made to barristers and solicitors—which, according to young barristers, are miserly in the extreme—or whether we are making allowances for the fees charged in the open market for a private client, which are considerably in excess of those payments. Would it be reasonable for such a distinction be made, given that it would encourage people to engage more expensive barristers? Clarification would be helpful.

I am also concerned about the point raised by my hon. Friend the Member for Beaconsfield, because to preclude being able to make allowances for a key person in the arrangement is a little unfair

I appreciate the fact that the clause is aimed at confiscation in England and Wales, and that we shall deal with other parts of the United Kingdom elsewhere in the Bill, but I should like the Minister to clear up what may well be a misunderstanding. Subsection (9) states:

    ``Dealing with property includes removing it from England and Wales.''

I assume that the subsection deals with a case heard in England or Wales. It seems to me that the defendant may have property in Northern Ireland or Scotland. Even when the court's proceedings are held in England, property outside England and Wales is not covered by the order. I am sure that there is an explanation for that, but I would like to hear it.

Mr. Ainsworth: I am worried about the effect that various members of the family of the hon. Member for Spelthorne are having on our proceedings.

The hon. Member for Beaconsfield thought that I would say that the provision must be in current legislation, but I will not. With regard to his point about subsection (4), we are changing the current legislation. We are doing that because the PIU report elaborated on the fact that money held under restraint is frequently dissipated on legal fees.

If a restraint order has been obtained for the property held by a defendant, but no proceedings have yet been instituted, the court can order the release of money from funds held under restraint so that he can pay his legal costs. If those costs lead to the release of all his assets under restraint and he has no further funds, he should be eligible to apply for civil legal aid until the institution of proceedings.

If the money held under restraint is exhausted, it is unlikely that a case would remain that could deprive a defendant of his assets, and there would be no assets under restraint for him to contest. However, as a safeguard, we are arranging that in such circumstances the defendant could apply for civil legal aid prior to the institution of proceedings. The legislation does not at present provide for that, so we shall introduce an amendment to the Access to Justice Act 1999 in due course.

A person who holds a tainted gift and whose property is restrained will not be able to draw on a restrained asset or assets for his legal expenses, as that would lead to a variation of his restraint order. We intend that such a person should be eligible for civil legal aid under the normal rules, and we shall introduce an amendment to the 1999 Act to provide for that, too.

The court will continue to be able to release restrained assets to enable other third parties affected by a restraint order to contest it. In practice, other third parties rarely, if ever, make such applications, usually because the assets do not belong to them. However, if a third party wishes to make an application and the court is not prepared to release any frozen assets and the applicant has no other funds, we intend to make legal aid available under the usual conditions. Again, we shall introduce an amendment to the 1999 Act to provide for that.

The hon. Member for Spelthorne asked about the word ``reasonable''. It is for the court to decide what is reasonable, even if that might infringe indirectly on the hon. Gentleman's pocket. He rightly says that the Bill states that property under restraint cannot be removed from England and Wales. That covers all properties held by the defendant, wherever they are, but enforcement is a matter for each jurisdiction.

There will be the necessity for co-operation, and arrangements for that are in part 2 of the Bill.

Question put and agreed to.

Clause 42 ordered to stand part of the Bill.

Clause 43

Application, discharge and variation

Question proposed, That the clause stand part of the Bill.

Mr. Grieve: I am pretty sure that I had a query on this clause. Ah, yes—may I ask the Minister to consider who will be able to initiate the process of application for a restraint order? I am mindful of the fact that the matter might be better addressed when we consider clause 68. However, past practice is that those who could initiate had to be police officers of superintendent rank or customs officers of equivalent rank. We are now to allow financial investigators of the sort specified in an order by the Secretary of State to do that. I understand the reason for that, but the Minister will understand that the earlier legislation provided that there must be a police superintendent or a customs officer of equivalent rank, to ensure that powers were used only in appropriate cases. What reassurance can the Minister provide about how the system will be set up, so as to ensure that the financial investigator who may initiate such applications commands confidence in the same way?

 
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