Proceeds of Crime Bill

[back to previous text]

Mr. Grieve: I confess that the Minister now worries me slightly. We are discussing a claim in which the burden relating to the balance of probabilities is on the director to establish to the court's satisfaction that, on the balance of probabilities, a particular item constitutes proceeds of unlawful conduct, either on the part of the individual involved, or on the part of another person, and that the individual involved has acquired them in some form. From that, I would have assumed that it was central to the case that the director should at least be able to establish what is the unlawful conduct that he alleges is the centrepiece of the case.

3.15 pm

Mr. Ainsworth: That is not necessarily the case. We have discussed widely how criminal proceeds may become dissipated, how they may change and change again. We have discussed how, in the course of his investigations, the director will have to pursue those changes to the end. No doubt, he will know that it is not simply a case of a tree growing from a single point—a particular criminal offence—but that there two ends to those roots. Criminal proceeds may become intermixed in such a way that they cannot possibly be unravelled. They may also be hidden in some complicated process, often by design, to prevent their discovery.

Column Number: 696

Nothing that I have said—and nothing in the clause—detracts from the necessity for the director to show, on the balance of probabilities, that those proceeds are the proceeds of crime. Nothing can take that away. The hon. Gentleman need not fear that. We have discussed the type of situation in which a gang may have carried out a gold bullion raid, when the bullion subsequently becomes cash, then property, and then cash again. The same gang, or associated gangs, may have pulled off a bank robbery, too. To insert a requirement that makes it necessary to prove that the proceeds came from the gold bullion raid and not the bank robbery would be ridiculous beyond belief.

Mr. Grieve: This is an interesting and an important discussion. I accept that, in civil recovery proceedings of the proceeds unlawful conduct, it may be possible to invite the court to draw an inference—from the totality of the evidence—that the only explanation for the origin of assets is unlawful conduct. However, I should also expect that, if the director believes that there are specific assertions to be made in respect of property, he will make those assertions. It worries me that what the Minister has just said sounded very much like the assumptions under the confiscatory procedure, which plainly it is not.

Mr. Ainsworth: No, it is not. It is civil recovery of the proceeds of crime, requiring the director to show, on the balance of probabilities, that the property concerned is the proceeds of crime. It would make life unnecessarily difficult if the director had, in every single case, to show that the proceeds were those of a particular crime. I do not think that the hon. Gentleman believes that to be a necessity, nor that he wishes us to go down that road. I am not saying anything that detracts from the level of proof required by the director to prove his case. I do not accept his point and I certainly do not accept that the director must, in all circumstances, prove the individual criminality that led to the proceeds being generated.

Amendment No. 353 to clause 249 would take the same action in respect of Scotland. The hon. Gentleman asked me specifically to confirm or otherwise why subsections (3) and (4) were drafted and whether they attempt to limit the requirements under the civil procedure rules. The civil procedure rules will apply in full to the claim form procedure. Subsection (3) is intended to clarify one particular aspect of what must go into the claim form under civil procedures. He is absolutely right. We are seeking to amplify, not restrict, what is required under the civil procedure rules. For those reasons, I ask him not to press that amendment.

Mr. Grieve: Again, I am slightly disappointed with the Minister's response. The amendment does not seem incompatible with what he says should be possible within the framework of such litigation. The amendment says:

    ''The claim form must give details of the criminal offence''.

Column Number: 697

Obviously, if someone knows of a particular criminal offence, one would like to hear about it and learn, for example, that these are the proceeds of the robbery that took place at X bank on Y date.

Mr. Ainsworth: It is my understanding that it is not so much the case that we would like to hear about the offence but that there would be a requirement to disclose such information.

Mr. Grieve: There is also the concept of unlawful conduct. It would be worrying if the Minister could launch litigation to recover the proceeds of unlawful conduct without being able to identify—even in general terms—what unlawful conduct the person is alleged to have committed or is connected with by innocently receiving money. That would suggest that proceedings could be launched as fishing expeditions, and that was not the Government's intention in introducing the Bill. If that is the intention, the sooner it is knocked on the head the better. The Minister has not satisfied me about the clause.

Vera Baird: Is it not plain that the court will not be able to carry out its duty under section 246(3) to

    ''decide on a balance of probabilities whether it is proved—

    (a) that any matters alleged to constitute unlawful conduct have occurred''

unless those matters are specified on the claim form? How can a judge make a finding of that kind if he does not know what the unlawful conduct is?

It has been repeatedly said that the white book, with which the hon. Gentleman is well acquainted, will be part and parcel of the procedure. Any aggrieved respondent will be able to apply for further and better particulars and interrogatories in the normal way. Refinements from proceedings are a great feature of the civil procedure rules. The hon. Gentleman has nothing to worry about.

Mr. Grieve: The hon. Lady makes a good point. I was about to say that if the information could not be provided, the case would have no prospect of getting off the ground. I shall reverse the argument—I am prone to doing that, but it is worth doing. If the information must be provided, why should that not be spelled out in the Bill? I am more than 90 per cent. confident that she is correct. If information about the criminal offence cannot be supplied, the action has no chance of success, but why not spell out that it should be supplied?

The amendment was promoted by the Law Society, which expressed anxieties about the issue. It considered the matter and thought that the issue should be further refined. Fortified though I am by the hon. Lady's comments, I do not understand why the provision should not be in the Bill. It should be included because of the unusual powers that may be exercised. I see that the Minister is being handed a note, so I shall give him the opportunity to intervene if he wishes to do so.

Column Number: 698

Mr. Hawkins: While my hon. Friend is pausing for the Minister to read the note, perhaps he will accept an intervention from me.

My hon. Friend is right to say that the Law Society shares our concerns. I draw the attention of the hon. Lady and the Minister to the fact that the Law Society expressed its concerns in the following way:

    ''Vague assertions should not be sufficient to allow the appointment of interim receivers and/or recovery proceedings or orders to be made''.

If criminal conduct is alleged, as much detail as possible should be supplied about it. I accept what she says about the white book, with which I, too, am reasonably familiar, or was some years ago. If the Law Society of England and Wales shares our concerns, that should be put in the Bill.

The Chairman: Order. That was too long an intervention.

Mr. Grieve: I am grateful to my hon. Friend for those remarks. However, I will not respond to them, as the Minister wishes to say something.

Mr. Ainsworth: I have very little to say, I am afraid. I have received some information. With regard to our earlier discussion, there is no need to spell out that it should be supplied, because of the civil procedure rules. I doubt that the hon. Gentleman finds that exciting, and it is a great shame that he is, repeatedly, so disappointed in me.

Mr. Grieve: Although I am grateful to the Minister, Timeo Danaos et dona ferentes. I wish to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 10.

Division No. 17]

AYES
Field, Mr. Mark
Grieve, Mr. Dominic
Hawkins, Mr. Nick
Wilshire, Mr. David

NOES
Ainsworth, Mr. Bob
Baird, Vera
Clark, Mrs. Helen
David, Mr. Wayne
Foulkes, Mr. George
Lucas, Ian
McCabe, Mr. Stephen
McGuire, Mrs. Anne
Robertson, John
Stinchcombe, Mr. Paul

Question accordingly negatived.

Mr. Wilshire: On a point of order, Mr. O'Brien. For the benefit of the ignoramuses—such as me—who are present, can it be arranged for Hansard to include a translation of the Latin phrase that was quoted?

Mr. Hawkins: Further to that point of order, Mr. O'Brien. I am sure that the staff of Hansard are familiar with the expression, ''Beware Greeks bearing gifts.''

The Chairman: That is not a point of order for the Chair.

Clause 248 ordered to stand part of the Bill.

Clause 249 ordered to stand part of the Bill.

Column Number: 699

Clause 250

''Associated property''

Mr. Hawkins: I beg to move amendment No. 354, in page 147, line 1, leave out paragraph (e).

This is a probing amendment. The explanatory notes offer the example that where a painting is recoverable property, but legitimate money has been used to pay for it to be framed, the frame would be associated property. I shall refrain from exploiting the opportunity to play on the double meaning of the word ''framed'' in this context.

With regard to associated property, there should be a debate about scope and precision. The scope appears to be very wide, if one takes into account the entire clause. The weakness seemed to be in subsection (1)(e) and that is why we tabled our probing amendment to delete it. Its drafting is imprecise.

3.30 pm

This morning, the hon. Member for Orkney and Shetland (Mr. Carmichael) referred to drafting worthy of Sir Humphrey in ''Yes, Minister''. This may be a further example. When new procedures are introduced to deal with the proceeds of crime—we all want the Bill to hit effectively the Mr. Bigs—we want to ensure that there are no vague phrases. The Law Society briefed us on the previous amendment about vague assertions. Again, we are unhappy about the vagueness of clause 250.

We want to hear details from the Under-Secretary. Will he be prepared to accept the point as a layman rather than a lawyer? He often makes a virtue of that status. [Interruption.] I beg the Under-Secretary's pardon: apparently, the Minister of State will respond. Both Ministers have made a virtue of the fact that they examine the facts as practical lay Ministers rather than lawyer Ministers. In this case, surely even the layman is puzzled by the vagueness of the wording. That underlines our worry, and other hon. Members may share our worry.

 
Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index


©Parliamentary copyright 2001
Prepared 13 December 2001