Proceeds of Crime Bill

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Mr. Bob Ainsworth: The hon. Gentleman has just said that proceedings should not even be contemplated. Is he saying that if someone says that they were a bona fide purchaser for value without notice, that should be accepted, and no evidence should have to be provided that that is the case?

Mr. Grieve: No, I am not saying that. After all, if the director considers that a person is in possession of property, but it has been obtained bona fide without notice of its origins, the director would be stupid to bring those proceedings in the first place. If, on the other hand, he doubts that, nothing that I am suggesting would prevent him from bringing the proceedings. The difference is that at the end of the proceedings, under the existing wording, the bona fide purchaser will be held to have property that was the result of unlawful conduct, but he will be able to escape recovery by virtue of clause 306. I am simply saying to the Minister that that is an odd argument.

Mr. Ainsworth: If the director is easily satisfied that someone is a bona fide purchaser for value, the proceedings will not get very far. The hon. Gentleman appears to be suggesting that his amendment contains a protection that is not already in the Bill. I cannot see that.

Mr. Grieve: There are two issues. I touched on amendment No. 380, which was aimed at limiting the scope of recovery to assets in the hands of an individual, that had been obtained by his conduct. That would narrow the scope of civil recovery considerably. I said to the Minister that I was wholly open to persuasion not to press the amendment, although the Committee should consider it as we go along the road. It would remove the difference between the civil recovery and the confiscation proceedings, because the issue would be identical. The point about which the Minister wrote to me in relation to amendment No. 356 would therefore be covered.

Leaving that to one side, even if we are to continue with the principle that proceedings can be brought against any property that is the result of unlawful conduct, should we not exclude the category of individual who has property in his possession that he has obtained bona fide without notice and for value? As I said to the Minister, this is ultimately a question about the approach that is being taken. We are giving the state a wide power of recovery. I accept the suggestion that there is a similarity with tax and VAT. The provision will not put the state into the same position as the victim of a tort. It gives it an administrative power to seize assets.

I am anxious about including a power that allows the state to treat assets that have been legitimately acquired for value by a person as the proceeds of unlawful conduct. That theoretical principle is objectionable, but it can be cured. The Under- Secretary said, ''Why change it, in view of clause 306?'' but if he is right, it is equally arguable that my amendment would in no way damage the abilityŚ[Interruption.] The Minister of State chuckles, but the way in which Parliament drafts Bills is relevant in showing our intentions, and whether we approach matters fairly.

Ian Lucas: I am grateful to the hon. Gentleman for giving way. He has been very tolerant this morning. Would not the amendment to subsection (1) stop recovery by a third party against a third party? Let us suppose that a son was given money by his drug-dealing father. The amendment does not mention the concept of bona fide value without notice. It would effectively prevent the state, through the Assets Recovery Agency, from proceeding against any third party.

Mr. Grieve: If the hon. Gentleman is referring to amendment No. 381, I disagree with him. The son of a drug dealer who is handed money is not a bona fide purchaser for value without notice of that money. That clearly does not apply.

Ian Lucas: I am referring to amendment No. 380.

Mr. Grieve: Yes, on that amendment, the hon. Gentleman is right. That is why I stressed that amendment No. 380 was purely a probing amendment. My intention was to stimulate discussion about whether we were satisfied that the scope of the powers of recovery should extend beyond the unlawful conduct of the person against whom the proceedings are being brought. I may be easily persuaded that it should. I hope the hon. Gentleman will appreciate that I would not be doing my job unless I pointed out to members of the Committee what we are doing, particularly in the light of our discussion about the difference between confiscation and civil recovery. Although there is the power over tainted gifts, and confiscation would come into that categoryŚ

Mr. Ainsworth: Aha.

Mr. Grieve: Yes, but tainted gifts would be covered anyway through confiscation. If I understood the hon. Member for Wrexham correctly, he was speaking about a person who might innocently have been given the money. That situation would not be covered by the tainted gifts provisions. I do not claim universal wisdom in these matters, and if I have got that wrong, the Minister will correct me. I tabled amendment No. 380 to stimulate discussion about whether we should limit the power because of its extensive nature. When I tabled the amendment I had no intention of pressing it to a Division. I wanted it to provide the opportunity to discuss the issue.

Mr. Paul Stinchcombe (Wellingborough): I do not support amendment No. 381, because clearly its content is covered by clause 306. I do not agree with amendment No. 380, either, for the reasons explained by my hon. Friend the Member for Wrexham, but I am glad that it was tabled, as a probing amendment, because I simply do not understand what is meant by the words

    ''whether his own conduct or another's''

in subsection (1). I should like clarification of that. If those words were deleted by the amendment, the clause would make perfect sense, although it would cast its net too narrowly. The subsection would then read:

    ''A person obtains property through unlawful conduct if he obtains property by or in return for the conduct.''

The subsection identifies the person rather than the property. It is manifest that the property would have to be obtained by the person mentioned at the beginning of the clause.

The subsection makes no sense to me when the parenthesised phrase is included. If the Minister wishes to cast the net sensibly so that the clause embraces property possessed by one person but obtained through the unlawful conduct of another, subsection (1) should be reworded. It could, perhaps, say something like:

    ''A person obtains property through unlawful conduct if he possesses that property and it was obtained by or in return for unlawful conduct, whether that is his own conduct or another's.''

The subsection must be reworded if it is to make sense.

Mr. Grieve: I am grateful to the hon. Gentleman for sharing my view that the clause is difficult to follow. That is why I tabled an amendment that would remove part of it. By removing the phrase in parentheses, we would probably limit the ability to recover property from those who had obtained property through unlawful conduct. The hon. Gentleman may agree that the issue highlights the slight ambiguity about the unwillingness to spell out the wide range of the power.

It would be much better if the Minister rewrote the subsection to make it clear that we are dealing not just with people who obtain property by unlawful conduct, but with those who happen to have in their possession property that was originally obtained by unlawful conduct, although no taint attaches to them for having that property.

Mr. Stinchcombe: I agree. It seems clear that if we exclude the words in parentheses the subsection would make perfect sense, but the sense would be narrower than that intended by the Government. I am not coy about that. I, too, would like the words to bear the meaning that the Minister intends them to have, and would like the meaning to be broader, and I am not afraid to say so. The present wording does not make that meaning clear.

The subsection has a tension within it that I do not follow. I therefore suggest that we use my wording, or alternative wording drawn up by the Minister with parliamentary counsel and draftsmen. As a lawyer, I do not understand the subsection, and it seems inconsistent.

Vera Baird: I do not agree with my hon. Friend that the subsection does not make sense, although I am not far from agreeing. It is possible to understand that

    ''A person obtains property through unlawful conduct (whether his own conduct or another's) if he obtains property by . . . the conduct.''

I could obtain property through the unlawful conduct of another, so the passage can be construed rationally. I fear that if we attempt to redraft the passage, we shall lose a power, albeit one that is likely to be used extraordinarily rarely, which should remain in the Bill.

I did not follow what the hon. Member for Beaconsfield said about the stigma that someone who has not done anything unlawful would feel if they were found to hold unlawfully obtained property. There may have to be some technical fine-tuning, but an innocent person can hold property acquired by unlawful conduct. If the judge finds that the defendant is a bona fide purchaser for value or a bona fide recipient who has acted relying on his bona fide belief, he will make that clear.

The unlawful conduct is not that of the Mr. Big whom we are considering. Anyone who is concerned can be reassured by the Minister's clear utterances that the priority would always be to prosecute and to use confiscation proceedings. The person who behaved unlawfully and obtained the property before transfer to the innocent third party would be prosecuted if possible, and presumably, the civil recovery avenue would be taken only if that person was dead or could not be pursued for another reason.

10.15 am

It seems to me that that is important. If a uniquely precious item, such as a valued picture from the national gallery, had passed through dishonourable channels into innocent hands, it would be right that there was the power to restore it to the nation, if that was practicable. It does not make sense to cut off the power even to try the issue of whether it came into a third party's hands in a bona fide manner. I do not support the amendment.

I apologise to you, Mr. Gale, and to the Committee, for my late arrival today, especially as I participated in yesterday's debate, and was undoubtedly referred to disparagingly in my absence.

 
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