Proceeds of Crime Bill

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Mr. Davidson: I suggest that the Minister considers seriously the point of the hon. Member for Spelthorne (Mr. Wilshire). I would like nothing more than to campaign during the next general election by saying that Labour will retain the list of specified crimes and that, presumably, the Tories favour its removal. I would be keen to say that the Tories are soft on crime and that we are determined to protect our people.

Mr. Ainsworth: I do not think that I will go down that road.

Mr. Field: Clearly, clause 75 is of key importance. My hon. Friends the Members for Beaconsfield and for Surrey Heath (Mr. Hawkins) rightly said that the clause, as currently couched, adds an extra layer of uncertainty. Has consideration been given to reverting

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subsection (2) to a list of offences that would not be caught? Would that be a more sensible way of proceeding? It would be easy, for example, to envisage the inversions of paragraphs (d) and (e). No doubt summary offences would be part and parcel of that. I hope that the Minister understands the genuine and principled concern of Conservative Members about a large and uncertain clause that could be added to on an ad hoc basis. Would the matter be easier if the clause was negative, rather than positive, listing the offences that would not be caught?

Mr. Ainsworth: I know what the hon. Gentleman is trying to suggest, but it would be very difficult. We try to ensure that a positive list is comprehensive and argue about whether the Secretary of State should be able to extend that list. I hate to think how much time it would take to draw up a comprehensive negative list, how long and complex it would be, and how many worries would arise from it.

Norman Baker: With great respect to the hon. Member for Cities of London and Westminster (Mr. Field), is that not rather a dangerous idea, as it would be easier to miss things off that list?

Mr. Ainsworth: That is correct. Moreover, with regard to anything that was left off the list, the assumptions would be automatically triggered.

11.45 am

Mr. Davidson: While my hon. Friend is slapping down that proposal by the hon. Member for Cities of London and Westminster, will he also bear in mind another of the hon. Gentleman's suggestions—which I strongly support—that insider dealing should be included in the list of offences that would trigger the mechanism? That is a constructive suggestion—and who better to advise the Committee on the seriousness of insider dealing than the Member who represents the Cities of London and Westminster?When the hon. Gentleman next walks along the streets of London and Westminster, he will be applauded by his constituents, who have obviously impressed upon him the need to do something about insider dealing. I say to the Minister, ''Don't be a softy; accept the suggestion by the Opposition Member, and call it 'the Field amendment.'''

Mr. Ainsworth: I cannot remember whether the hon. Member for Cities of London and Westminster actually made that suggestion; perhaps he has been misrepresented. However, if my hon. Friend is confident that he did say that, he should ensure that the hon. Gentleman's constituents are aware of it, so that they can take it into account when they consider whether he is representing them properly.

We are having a bit of fun, but we are also dealing with a serious clause, and now we must try to address its key issues. Amendment No. 280 would require a defendant to have benefited from the combined triggering offences to the tune of £5,000. Part IV of the Criminal Justice Act 1988 instituted a £10,000

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threshold, below which confiscation could not be considered. The effect of that threshold was to reassure criminals that their ill-gotten gains would be safe from confiscation if they hid all but £9,999 of them. Amendment No. 280 would have a similar effect—albeit at a lower threshold. It would reassure repeat acquisitive offenders that a criminal lifestyle action could not be taken against them if the authorities were unable to prove that the benefit was more than £5,000.

I recognise why hon. Members are concerned, and what they are trying to achieve. If a way could be found to achieve their aim without providing loopholes for serious criminals to climb through, I would want to consider it. However, as our discussions both inside and outside the Committee have indicated, there is a real danger that loopholes will be created. I will continue to consider whether something can be done, but I have real fears—which some hon. Members are not taking as seriously as they should—that if a proposal for a threshold were not properly thought through, it would, in practice, be wide open to abuse.

Norman Baker: I hear what the Minister says, but £5,000 is a low figure—it is even lower than the threshold in the previous provisions to which he referred.

Concerns have been expressed about summary offences. Does the Minister not agree that dealing with a set figure addresses the problem that summary offences can also involve large sums of money? The amendment, by defining a low sum, would be a cleaner way of dealing with that—and the Minister is clearly sympathetic to it.

Mr. Ainsworth: I am always staggered by the affluence of other hon. Members. The hon. Gentleman has stated that £5,000 is a low figure. If I had obtained £5,000 by committing a crime, I would not consider it to be a low amount.

I shall not say any more, except that I acknowledge that hon. Members are genuinely attempting to steer the legislation in the right direction. However, I cannot see how we could do that without providing escape routes for serious criminals. That is why I am not minded to do it. I do not want to give members of the Committee the impression that I would take such action.

The amendment would have a harmful impact on the practical effectiveness of confiscation. The sort of offender at whom confiscation is targeted often makes a small amount from an individual offence, but huge profits from repeat offences, such as selling pornographic videos. The offender's profit from a single offence of producing a video may be only £10, but he may have produced and distributed a quarter of a million videos in a month or six months and made substantial profits. Under the amendment, it would be possible to take into account only the offences on the charge sheet, or a single offence in the present proceedings and one offence on two previous occasions. Such a measure would go nowhere near the

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£5,000 limit and we would have put the ill-gotten gains of wide range of offenders beyond the reach of confiscation.

Amendments Nos. 271 and 272 bring us back to last week's debate on clause 70. Under amendment No. 271, a repeat offender would not be deemed to have a criminal lifestyle if any of the offences of which he or she had been convicted was a level 1 offence that did not attract a term of imprisonment. Amendment No. 272 is related to amendment No. 271, and would mean that particular criminal conduct would not include any level 1 conduct that did not attract a term of imprisonment. The principle underlying the Bill is that a criminal lifestyle may be shown by repeat offending from which the offender has benefited. If we moved away from that principle, we would create difficulties.

I think that I have covered the points raised by the amendments and clause stand part. We cannot accept the amendments. They would provide unnecessary safeguards. Such practice would not be triggered and has not been so triggered under current legislation. The hon. Member for Beaconsfield says that we are widening the provisions, and I accept that we must think seriously about such points. However, I ask hon. Gentlemen to withdraw their amendments; if they do not, I shall ask my hon. Friends to vote against them.

Mr. Wilshire: I have listened carefully to the Minister. I hope that he can reassure me about our underlying concerns raised on the amendments and clause stand part. I do not want to lengthen the debate for the sake of it—I never do that. I accept that the hon. Gentleman has tried to be as helpful as he can, but sadly, he has not responded to my worries about the clause. The main point in his response was that there are safeguards in the Bill and our amendments would provide loopholes for the potential criminal. I accept that such thoughts are fashionable, but the more I have listened to the debate, the more I have reached the conclusion that the clause puts loopholes into the Bill for the benefit of the prosecution, not the defence.

I shall explain why. The Minister has made much of the fact that there are two overarching safeguards. He has repeatedly drawn our attention to the idea that there is a serious risk of injustice. That is helpful, except the provision already concerns a serious risk of injustice. I take it from that that the hon. Gentleman is happy to contemplate minor risks of injustice. I see this clause as providing loopholes so that the prosecution can say, ''This will catch that person, and the amount of injustice will not be serious; it will be minor.''

The Chairman: Order. We have already had that debate.

Mr. Wilshire: I appreciate that, Mr. McWilliam, and I accept your ruling. However, it is relevant to put my concerns into the context of what the Minister has regularly said are the arguments against them.

I hoped that the Minister would respond to one other general consideration, which arose out of the debate on amendment No. 270. The hon. Member for Glasgow, Pollok made an intervention with which I

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hoped that the Minister would deal. He suggested that subsection (2)(c) could safely remain, so that the Executive and the legislature could make their meaning crystal clear to the courts, and the courts would do precisely what they were told, irrespective of whether the legislation was drafted correctly or whether they interpreted it right. The Minister should have addressed such a fundamental point. The fact that he did not do so leads me to wonder whether the amendments need to be taken a great deal more seriously than the Minister appears to have taken them. The hon. Member for Glasgow, Pollok sought to undermine the key safeguard of the liberties of the British subject—the rule of law, for which he would substitute the diktat of Parliament, or of the Executive. If that is the purpose of the provision, it is wrong; it is not only bad legislation, but wrong.

Are we moving towards saying, ''The Home Secretary of the day will decide that the courts are wrong. Hard luck.'' If so, I do not mind which political party provides the Home Secretary—this is not an attack on a Labour Home Secretary, and I hope that I would have the guts to stand up and say exactly the same thing if my party were to give that kind of power to a Conservative Home Secretary—it should not be allowed. However much the Government say that they do not intend to misuse the power, it undermines the rule of law. I accept exactly what the Minister says, and I offered him a way of dealing with the matter—to say that the provision would be for the duration of this Parliament, or for as long as his party provides the Home Secretary. If you read your history books, Mr. McWilliam, I am sure that you will agree that history teaches us that if there is a power that somebody can abuse, sooner or later somebody will abuse it.

 
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