Proceeds of Crime Bill

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Ian Lucas: Does not supermarkets' policy of pursuing shoplifters provide us with a helpful analogy?. They undertake to commence civil proceedings against individuals regardless of whether they are convicted or acquitted of an offence. The supermarkets do that because it is an effective and potent deterrent, and that guidance may be useful in considering the amendment.

Norman Baker: As the hon. Gentleman says, some commonality is involved. The difference is that in that case the Crown Prosecution Service would pursue criminal proceedings, while the supermarket's civil proceedings would involve a different body. In both the cases under discussion, the public would perceive that the state was involved—that one arm of the state was having a go when a different arm of the state had failed. That is where the comparison breaks down, although I agree that there are some similarities.

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On amendment No. 356, the Minister may say that in no circumstances would the director want to undertake proceedings if no new evidence were available. Indeed, I hope that that is so. It would be perverse if he or she wanted to pursue the matter in such circumstances. If that is so, there should be no objection to the amendment, which seems entirely sensible. The Minister will either have to say that there are circumstances in which the director will want to pursue proceedings in which no new evidence is available—in which case it would be helpful if he would outline them—or that there are no circumstances in which that would occur, in which case the amendment should be acceptable. I shall be interested to hear the Minister's response.

Mr. Ainsworth: The hon. Member for Beaconsfield is right to say that although the amendments have been grouped together—I understand why, as they relate to the same issues—they are different, so perhaps we should speak to them separately.

Amendment No. 367 would prevent civil recovery or cash forfeiture proceedings from being initiated in respect of property that is alleged to have been generated by conduct that has been subject to criminal proceedings that resulted in an acquittal. The Bill makes provision for the state to bring proceedings to recover property that is or represents property obtained through unlawful conduct, or, in the case of cash, that is intended for use in unlawful conduct. It does so regardless of whether proceedings have been brought for an offence in connection with the property.

As I said when we discussed part 1, the policy is that the prosecution of criminals will continue to take priority. No member of the Committee would challenge the principle that in the first instance we should try to prosecute criminals and, when appropriate, to lock them away. Nothing in the Bill should discourage people from having that as their first priority, and we have tried to make sure that that is safe. In some instances, it may rapidly be discovered that, for example, the person involved is dead. However, with the exception of such circumstances, prosecution should always take priority over civil recovery, and when someone has been convicted of an offence, criminal confiscation should be the normal method used to recover the proceeds of crime.

When no conviction has been obtained, the director should be able to consider civil recovery action. I do not accept that an acquittal in criminal proceedings in relation to the same unlawful conduct should automatically bar civil recovery, and I do not believe that the hon. Members for Beaconsfield and for Lewes (Norman Baker) are pushing that point. The person involved may not have been convicted for a specific offence and charged in criminal proceedings, but there may be compelling evidence that some of his assets were none the less derived from either his unlawful conduct or that of other people with whom he is associated.

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Norman Baker: Does the Minister also accept that in some circumstances the evidence presented in court in a criminal prosecution is such that it is absolutely clear that the accused should be found not guilty? I do not mean simply a technical not guilty verdict because of faults in the prosecution evidence presented, for example, but a verdict returned because a convincing case has been put. Under those circumstances, it might be seen as perverse if asset recovery were pursued.

Mr. Ainsworth: The hon. Gentleman is right that if it becomes apparent, for whatever reason, that the assets are the proceeds of crime, and the structure of legislation prevents those assets from being chased and recovered by the state, the people who elected us would regard that, too, as perverse. They would expect us not to pass legislation that allowed that to happen.

Circumstances therefore exist in which the absence of sufficient evidence to secure a criminal conviction does not necessarily mean that there will be insufficient evidence for civil recovery. The civil courts are governed by a set of rules on admissibility of evidence and procedure different from those for criminal courts. For example, the High Court would be more able to admit a greater range of evidence, including hearsay evidence, previous conviction evidence and self-incriminatory material obtained under compulsion, and new evidence might come to light after the trial for the particular offence, which may show a link between the property and the criminal conduct.

Mr. Field: I think that the point made both by my hon. Friend the Member for Beaconsfield and by the hon. Member for Lewes was that the state would have a second bite at the cherry, which makes me feel instinctively uneasy. We just heard the example of new evidence coming to light—I accept that that was in relation to a criminal case rather than a civil case, although I presume that there would be opportunity for a retrial on a civil basis. Reference has been made to a robust example whereby a criminal case had fallen apart amid great controversy, and relatives subsequently initiated a private prosecution. That is entirely different: the state acted in the first instance, followed by a private individual prosecution. We are concerned about the state having a second bite of the cherry. Although I understand where the Minister is coming from in that regard, it will surely be seen as draconian for two closely related arms of the state, having failed the first time round, being given a second chance—

The Chairman: Order. That is a very long intervention. If the hon. Gentleman wants to take part in the debate, that is another thing entirely.

Mr. Ainsworth: The hon. Gentleman is right. If the proceedings are used in such a way, there may be a reaction. It is also a double-edged sword. Most of our constituents would want us to pursue relentlessly the kind of people against whom we hope that civil recovery will be effective—the modern Al Capones, or Al Capones, for those who prefer that pronunciation. If criminal investigation and prosecution is not available, people will want us to consider criminal

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confiscation, under the structure of the Bill, and if that is not available, they will want us to pursue civil recovery. The hon. Gentleman is right to say that if the powers were misused, there would be a great reaction against them. However, our constituents want us to take effective action against the individuals whom we are talking about, who exist in towns and cities the length and breadth of the country.

Norman Baker: Let me try again. My concern is about a situation in which there is a criminal prosecution, and it is crystal clear, beyond any doubt, that the accused is not guilty of the charges made against him or her—for instance, he or she had a cast-iron alibi. Will the Minister assure me that when that person leaves the court with no stain on their character in anybody's eyes, there will be no question of pursuing civil recovery in those narrow circumstances? Of course I agree with the Under-Secretary that the tests are different, and that there may be appropriate reasons for bringing civil proceedings, but sometimes the comparative cases for criminal prosecution and civil recovery may overlap to such a degree that if innocence is established beyond doubt in one, it would be perverse to pursue the other.

Mr. Ainsworth: I accept what the hon. Gentleman says, but we do not believe that the powers for recovery in part 5 should be used routinely against people who have been acquitted of criminal offences. None the less, I do not believe, either, that we should rule it out or deprive the agency of that ability.

We are talking about two different processes. A person pursued in the criminal courts may well be absolutely innocent of the crime that he is said to have committed. Civil recovery procedures do not breach the principle of double jeopardy, because we are not talking about prosecution; we are talking about the proceeds of crime and being able to show—to the civil standard—that on the balance of probabilities, property is the proceeds of crime. Those are two separate issues.

I accept that civil recovery should not be considered routinely, but in some instances it will be apparent that although criminal proceedings have failed, civil recovery is the glaringly obvious route down which the director should go. The amendment would prevent the director from being able to do that, and the tone of his introduction led me to believe that the hon. Member for Beaconsfield was prepared to withdraw it.

Vera Baird (Redcar): I have a residual sympathy with what the hon. Member for Lewes said, although there should not be a hard and fast rule. It must be appreciated that bringing proceedings for a second time under the civil recovery powers will involve the allegation that property has entered a person's possession through criminal conduct. Civil recovery proceedings will require a person to disclose many details of his financial affairs and will put much of his life on public display again. That can have a dramatic, long-lasting and damaging effect on a person's life.

There is something in the criminal sphere called ''The Code for Crown Prosecutors'', which regulates the Crown Prosecution Service's discretion to decide

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when to bring a prosecution. Broadly speaking, the CPS prosecutes only if there is a more than 50 per cent. chance of conviction—that is a relevant point—and if prosecution is in the public interest. Granted, those criteria might not be quite plumb with the second set of proceedings, but will my hon. Friend consider introducing a code of conduct and discretionary judgement for the Assets Recovery Agency director, so that fears such as those expressed by the hon. Member for Lewes would be groundless? The public would then be reassured.

 
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Prepared 11 December 2001