Proceeds of Crime Bill

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The Chairman: Order. For the sake of equality, I must say that that, too, was a long intervention—although the hon. Lady is quite entitled to take part in the debate.

Mr. Ainsworth: My hon. Friend is right to say that civil recovery proceedings could alarm people if they were pursued following an acquittal, but there are many instances in which they may be appropriate. For instance, what if the person who is pursued is innocent, but the proceeds of crime are held by another person? Amendment No. 367 would prevent us from pursuing the proceeds of crime in courts if the original attempt to convict failed.

Vera Baird: Yes.

Mr. Ainsworth: My hon. Friend would not want that to happen. She asked whether there ought to be a code of conduct. Let me return to that question after we have discussed the amendment No. 356, because that raises many of the same concerns in a different context.

5.45 pm

Amendment No. 356 would prevent civil recovery proceedings from being initiated when, after a person had been convicted, he had successfully resisted criminal confiscation proceedings being taken against him and no fresh evidence was available. Let me clarify the relationship between civil recovery and criminal confiscation. When we discussed the director's functions under part 1 of the Bill, I explained that when a person has been convicted of an offence, criminal confiscation will be the normal method of recovering the proceeds of crime. Therefore, criminal confiscation proceedings will have ceased before civil recovery is considered.

The amendment seems to presuppose that in civil recovery proceedings, the issues under consideration will be the same as those on which the court has already decided during the criminal confiscation proceedings. That is not the case. Civil recovery is different from criminal confiscation. A finding that property does not represent the defendant's proceeds of crime for the purposes of part 2 would not prevent the property from being considered the proceeds of unlawful conduct under part 5. Although they both have the same standard of proof—the balance of probabilities—different issues arise under each scheme.

Mr. Grieve: That comment gives me slight cause for concern. Such an argument could apply to confiscation in relation to particular criminal conduct,

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but when, under criminal confiscation proceedings, the assertion has been drawn widely that assets are the result of general criminal conduct, it is difficult to see that assets could exist that could then, under civil recovery proceedings, be considered to be different from those that were examined under the general criminal conduct proceedings.

Mr. Ainsworth: The hon. Gentleman is absolutely right, but that is not what his amendment says. It deals with what will happen when someone has successfully resisted criminal confiscation. The hon. Gentleman does not set out in the amendment whether it refers to the general criminal lifestyle provisions or to particular criminal conduct. He cannot blame me for pointing out that there are different issues.

Mr. Grieve: Let us suppose that particular criminal conduct has not been proved, and that no confiscation has taken place because there were not deemed to be any benefits. If a general attempt is then made to bring civil recovery proceedings, the particular asset that was deemed to be the result of particular criminal conduct should be isolated and ring-fenced, so that it cannot be touched under the civil recovery proceedings. Otherwise, there would be manifest unfairness. I accept that when a particular recovery has been unsuccessful, other general assets could be considered. However, I cannot see how the assets that have been focused on under a particular recovery proceeding, and found not to be confiscatable, can be amenable to civil recovery.

Mr. Ainsworth: Let us continue to examine the issues, because, as I think members of the Committee recognise, they are important. Part 2 provides for the confiscation of the defendant's benefits, either from his general criminal conduct or from his particular criminal conduct. Particular criminal conduct means the offences of which the defendant has been convicted in the current proceedings, together with any offences taken into consideration by the court in passing the sentence. In both cases, the defendant must have exhibited the criminal conduct.

Under part 5, the focus is on the property rather than on the person who holds it. The respondent in civil recovery proceedings—although he may have previously been a defendant in criminal proceedings—will not necessarily be the person who committed the unlawful conduct that gave rise to the original recoverable property. The enforcement authority has to show that that property represents the proceeds of crime. It does not have to show who committed the crime. It would, therefore, be possible for property that cannot be proved to be the proceeds of a defendant's crime under part 2, to be the proceeds of unlawful conduct under part 5. The director, or Scottish Ministers, would need to provide information that showed that the property was, or represented, recoverable property. They would not need to show that the property was derived from the particular offence.

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To explain that point, I offer an example; I will refer to the assumptions, because the hon. Member for Beaconsfield says that he cannot understand how, in any circumstances, the one would apply while the other might not. Let us say that a car falls within the scope of the assumptions under part 2, but that the defendant shows that it was stolen by someone else and that, although it was in his possession, he did not know or suspect that it was the proceeds of crime. Therefore, the car is not his benefit from whatever crime was involved—for instance, money laundering—so it would not constitute his benefit from general criminal conduct. The amendment would prevent civil recovery proceedings from being brought in respect of that car. However, as the Bill stands, the director could show that the car was obtained by theft; in that case it would be recoverable, and he could bring proceedings in respect of it.

Mr. Grieve: This is a fascinating discussion. With regard to clause 245, I made an assumption—which the Committee might also have made—that an action to recover property obtained through unlawful conduct was likely to be directed at the person who obtained the property, because all of us may possess property that has been obtained through the unlawful conduct of somebody else. That can happen.

However, under the ordinary rules of civil law, unless we are proved not to be a bona fide purchaser for value without notice—or we fall within the other exemptions that exist—that property cannot be recovered. The Minister is suggesting a sweeping power of civil recovery which, worryingly, goes beyond what I ever imagined. We did not really look at that under clause 245, because it did not cross my mind that it might be intended to be used to recover property from a person who held it innocently of any wrongdoing. That issue must be considered.

Mr. Ainsworth: A purchaser for full value would, no doubt, be able to present that case, and we will get an opportunity to discuss various elements of civil recovery when we debate subsequent clauses.

I am sorry that the hon. Gentleman was not aware that what has been described was at least a possibility under civil recovery proceedings. Those proceedings are not aimed at the individual who committed the crime. They are aimed at the recovery of the proceeds of crime. It is a property-oriented provision, to be pursued through civil proceedings.

Mr. Grieve: I appreciate that, and I always appreciated the fact that a person does not have to do the actual obtaining in order to have civil recovery proceedings brought against them. However, I assumed—wrongly—that if civil recovery proceedings were brought against a person for possessing property that was unlawfully acquired, the ordinary civil law tests would apply to establish that the category of property fell to be recovered and the individual could not legitimately pray in aid the normal defences in such civil claims, such as saying that despite the fact that the property's origin was unlawful, he was in lawful possession of it.

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Mr. Ainsworth: The hon. Gentleman is aware that we are discussing an introductory clause that opens up a wide-ranging debate on part 5 of the Bill. As we get into the Bill and discuss the mechanisms and safeguards that it contains, he will find that the safeguards that he wants are in the Bill. The normal provisions for a purchaser for full value are in clause 306, in part 5, and they are protected. The hon. Gentleman need not fear that a prosecutor will pursue a civil recovery when a person who did not commit the crime can show that property was purchased for full value, because that would be an absolute defence.

I give the hon. Gentleman a valid case. In the circumstance that I explained, we can consider a particular car. We will take away the de minimis considerations and discuss not a Vauxhall Astra, but a Rolls-Royce or an armoured BMW—which I am reliably informed exists in the criminal fraternity of this country. Such a car would not be confiscatable under part 2 even if the assumptions had been met, yet the car could be shown to be the proceeds of crime—and, therefore, possibly recoverable under part 5.

I can tell the hon. Gentleman, and my hon. Friend the Member for Redcar (Vera Baird)—I know that she has worries too—that I do not expect anyone to go down that road, and I would be fearful if anyone did so without due consideration. However, in such circumstances, and when dealing with the people with whom we will be dealing, we should never say never. Those circumstances could exist, and provide an opportunity in which there is a clear case for the confiscation under part 5 of property that was exempted under part 2. If the amendment were accepted, we would rule out that possibility.

I shall give way to the hon. Member for Lewes.

 
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