Proceeds of Crime Bill

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Mr. Ainsworth: As we go through the Bill, we will be able to show that that is not the case. I recall the comments of the hon. Member for Beaconsfield about the retrospective nature of the Bill. However, amendments have been tabled that will allow the Committee to explore whether it is retrospective. I believe that the hon. Gentleman's comments were not justified.

I wish to plough through this group of amendments to raise the key issues, so that hon. Members can discuss them, as I have kicked the general principle around for a long while.

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Mr. Grieve: The Minister said that we tabled an amendment that would make it impossible to bring arms trafficking within the category. That mystified me, and it would be helpful if he would explain why that amendment would have that effect.

11.15 am

Mr. Ainsworth: The hon. Gentleman is saying that a definitive list must be drawn up now, and that there must not be any additions to it, so if it subsequently becomes obvious that a crime should be added, new primary legislation will be needed.

Until recently, it was not generally recognised that organised crime is heavily involved in people trafficking. However, we now know that it is heavily involved in the abuse of asylum, and that it shifts between drug trafficking and people trafficking, according to which activity is more profitable at any given time. The hon. Gentleman is suggesting that if such a situation were to arise again, new primary legislation would have to be introduced to deal with it, and that the Secretary of State should not be allowed, with Parliamentary scrutiny, to bring that within the compass of the regulations by order.

Mr. Hawkins: That is incorrect. Assuming that what the Minister describes as people trafficking is a criminal offence, will he explain why that would not be covered by subsection (2)(d)? I appreciate that, before he answers that question, he may wish to receive advice from his officials. However, if the Home Secretary's blanket discretion as laid out in subsection (2)(c) is excised, subsection (2)(d) would still be included, as would subsection (2)(e)—unless amendment No. 279, which was tabled by Liberal Democrat Members and with which I have some sympathy, is made. This is not a matter of, ''You have to have all of them.'' With regard to the way that the Bill is drafted, any of them will do.

The Chairman: Order. I do not need any of them.

Mr. Ainsworth: The hon. Gentleman knows—or he ought to know, if he has read the Bill, as, unlike me, he is legally trained—that, to trigger paragraph (d), there would be a requirement to show that the person was not only involved in people trafficking on one occasion but had been involved in other criminal activity on more than one occasion. That is the difference between subsection (2)(d) and the list that would be included with the Bill of those crimes that would automatically trigger the assumption of a criminal lifestyle. As the hon. Gentleman knows that, I think that we are playing games.

Mr. Paul Stinchcombe (Wellingborough): I hope that I am not playing games. I wish to ask a question about the most obvious and serious criminal for gain, which is the hitman. Would a hitman fall within the definitions of the Bill or the list, if he were a hitman on only one occasion?

Mr. Ainsworth: He certainly could be categorised as having committed an acquisitive crime, because I am sure that he would not have been a hitman merely for

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the sake of hitting people—although, if that were the case, it would not be an acquisitive crime. If he were involved in a criminal gang that pursued profit, his activities would be associated with criminal gain and would therefore be within the definition of an acquisitive crime. I do not know whether a hitman would automatically trigger the assumptions. I will check that out and get back to my hon. Friend.

Mr. Grieve rose—

Mr. Ainsworth: I am being hit by a hitman.

Mr. Grieve: As the regulations are drafted, the hitman would not trigger the assumptions. He would trigger them only if he committed two other offences, such as not owning a television licence, during the previous six years and thus had committed three acquisitive crimes for gain during the six-year period, or if the prosecutor could demonstrate from other extraneous evidence that he was not a newly arrived hitman but had been in the criminal fraternity for at least six months. That is an exact example of the fettering that I assumed that the Government had considered and decided was legitimate for the sake of not casting the net too wide for all offences.

Mr. Ainsworth: I am enormously pleased by the hon. Gentleman's comments because, as a hitman, he appears to have shot himself in the foot by proving the need for an order-making power to allow addition to the list of offences that indicate a criminal lifestyle.

Let us move on, otherwise we will be here all day.

Mr. Wilshire: We will be here all day anyway.

Mr. Ainsworth: Yes, but we would not be able to discuss other amendments, and we would be criticised for that by the hon. Gentleman, without his having to waste time.

Clause 75 sets out the criteria that govern whether a person has a criminal lifestyle. They are completely factual and therefore provide legal certainty. Under current legislation, drug trafficking, including drug money laundering, has always triggered assumptions. A conviction for any drug trafficking offence triggers an examination of the defendant's entire past drug trafficking and the mandatory application of assumptions.

Similarly, the Bill treats drug trafficking offences as conclusive of a criminal lifestyle and, in addition, subsection (2)(b) treats money laundering offences as offences that are always criminal lifestyle offences. Subsection (2)(c), as the hon. Member for Beaconsfield pointed out, enables the Secretary of State to specify by regulations other offences that are always criminal lifestyle offences. Such offences might include trafficking in arms. I have issued a list of offences but I do not understand how it can be conclusive, and that is why there is a need for paragraph (c).

Mr. Hawkins: I am puzzled that the Minister read from his brief that clause 75 provides legal certainty. He said that paragraph (c) gives the Secretary of State the power that we described, and that makes our point for us. There is no legal certainty because the scope is

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opened for a future Home Secretary to prescribe whatever he likes. Legal certainty would be provided by the incorporation in the Bill of the Minister's guidance list and anything further that he wishes to add.

Mr. Ainsworth: There are other amendments that deal with the part of the Bill that is retrospective. The Government do not intend to introduce legislation that draws in these offences retrospectively and brings an action that was committed by an individual, which was not known to him at the time to be a crime and may be legal in the future, within a criminal category. We will be able to demonstrate that when we discuss that particular issue. The hon. Gentleman will have the opportunity to prove his case, or otherwise, because of the amendments that he has tabled.

Amendment No. 270 would remove from the Secretary of State the ability to specify new criminal lifestyle offences. In that case, the only offences that would automatically lead to the assumption of a criminal lifestyle would be drug trafficking and money laundering offences. Subsection (2)(c) recognises that there will be other criminal lifestyle offences that may not yet exist when the Bill is enacted. There should be provision for such offences to be added.

Mr. Grieve: That is a bad point. If we enact future legislation to create criminal offences, it would be easy to have a consequential amendment placing that particular category of offence within the confiscation provisions. It can be done routinely without any difficulty.

Mr. Ainsworth: We are not doing anything out of the ordinary. The hon. Gentleman knows that certain principles should be laid out in primary legislation. There are certain order-making powers built into every Bill that enable Ministers to respond to changing circumstances. His suggestion that we are doing something extraordinary does not bear scrutiny. It should be clear from the list of conduct that I have circulated to members of the Committee that there is conduct other than drug trafficking and money laundering that is inherently indicative of a criminal lifestyle. Our initial consideration exposed a broad range of conduct that falls into that category. I am sure that the Committee will agree that arms trafficking, for example, is always indicative of a criminal lifestyle and should always expose the offender to a criminal lifestyle confiscation scheme without the need for further primary legislation. That is our reason for opposing the amendment.

Subsection (2)(e) states that a defendant has a criminal lifestyle if he has been convicted of any offence committed over a period of six months or more. It will thus be possible to confiscate the benefits from a defendant's entire past criminal conduct if he has been convicted of one offence of any nature. Unless the offence falls under subsection (2)(a) to (c), it must have been carried out over a period of six months or more. The removal of subsection (2)(e) would mean that a person who is charged with a single

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offence of cheating the public revenue over a period of 10 years could not be treated as having a criminal lifestyle.

The hon. Member for Lewes talked about the individual who has fiddled his expenses over a period of six months and said that the proceeds of that conduct would amount to pennies, so those should not be the type of people whom we are trying to catch, but in many instances when a person has been involved in criminality for more than a six-month period, substantial amounts would be involved. In a case involving pennies, it is extremely doubtful that a prosecutor would wish to proceed. It would be easy for a defendant to show that there was a real risk of serious injustice. If the overwhelming majority of his property was legally gained, there would be no confiscation. The prosecutor would therefore know at the outset that he was about to waste a huge amount of resource pursuing something when he had absolutely no chance of gain.

 
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