Proceeds of Crime Bill

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Mr. Ainsworth: I am now struggling to understand what the hon. Gentleman is concerned about. He is right that, at the end of the day, for the cash to be forfeit, it must be proven, to the same level of proof that is required in chapter 2 of part 5, that it is the proceeds of crime or is intended for use in crime. The key fact is that cash is instantly movable; that is the only reason why it is necessary to introduce the power to take possession of it immediately.

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Safeguards are in place. When it comes to searching an individual, just as with searching a premises, reasonable grounds must exist to suspect that the cash in question is the proceeds of crime or is intended for use in crime. The minimum amount and the other safeguards are designed to prevent exactly what the hon. Gentleman is worried about—the indiscriminate use of the power to search and harass people without due cause. I am satisfied that by including a raft of safeguards for prior scrutiny, and post scrutiny in cases where prior scrutiny is not possible, as well as a minimum amount of which there must be suspicion, we will ensure that there is no doubt that the power is not to be used willy-nilly without due cause or appropriate suspicion.

5 pm

Mr. Grieve: Perhaps our approach is from a civil law angle. If I have a right of civil recovery of assets such as cash or some other instrument, and I discover that a person is innocently in possession of that instrument, I cannot go out into the street and say, ''Stop, I want to search your pockets,'' and remove the items in question—I have to go to court and get an order. In the Bill, the state is taking a much wider power, which could, for example, be used against a courier who is acting perfectly legitimately in carrying instruments that constitute cash. Such a courier could be stopped and have those instruments seized. In this country there is a traditional principle that people should not be stopped and searched without good reason. Any such cause is normally linked to allegations of their own criminality. As a point of principle, I am concerned about a power that has the potential to allow innocent people to be stopped and searched in a way that goes against that tradition.

Mr. Ainsworth: The power is not intended to be used in the wide manner that the hon. Gentleman fears. He finished off his previous remarks by asking what was wrong with the existing power under the civil recovery procedure. The problem is that under that procedure the director has to go to court and provide a good, arguable case that the property is the proceeds of crime in order to get it frozen in the first place. In order to seize the property, he must then go on to prove that, on the balance of probabilities, it is the proceeds of crime. If he were to try to do that with cash, there would be nothing to seize. The hon. Gentleman must know that that is the case.

It may be that in some circumstances—if we studied the matter for long enough, we would be able to come up with some—cash could be seized under the civil recovery procedure. I am not suggesting that that is not possible. However, cash, by its very nature, and the other instruments such as tradable bonds and cheques included in the subsection, are easily movable and would not in most circumstances be recoverable under the normal civil recovery procedures.

Mr. Grieve: I am interested in what the Minister said. He may be able to give me clarification on the point, but I would have assumed that, for the purposes of civil recovery proceedings, cash is no different in

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quality or content from a painting on one's wall. If such a painting can be frozen in civil recovery proceedings, and I see no reason why it cannot, I can see no reason why cash cannot be frozen in the same way and have to be handed in to the court.

Mr. Ainsworth: The essential difference, as I have said, lies in the mobility of cash, which can easily be disposed of without trace. In civil recovery, the director conducts an investigation with a view to going to court to get assets frozen. He takes his investigation to the point where he is able to satisfy the court that those assets are the proceeds of crime and get an initial freezing order made on those goods. In the case of cash, an intelligence-led operation may trace a drugs deal, but the situation could have changed entirely by the time that the director can put together a case for the court.

The situation is fluid. We are told—this was exposed in the performance and innovation unit report—that in the course of other investigations, Customs officers and constables sometimes come across large amounts of cash that are obviously the proceeds of crime or intended for criminal use, but under current legislation, they can do nothing. By the time they can act with any power and take the money away, it is long gone.

The question is whether we want a power to be introduced that would enable action to be taken in such circumstances, without allowing individual members of the public to be harassed when there are not reasonable grounds to suspect that they are, have been or are about to be involved in crime. The hon. Gentleman seems to be arguing that such a power is unnecessary and that the potential for abuse is a price that is not worth paying, although we have managed to expose the fact that large amounts of cash are beyond the reach of the forces of law and order.

Mr. Boris Johnson (Henley): Will the Minister help me with one point that I cannot understand? I am sure that there is an easy answer, but I cannot see it. If a constable in a suspected criminal's house sees a pint pot on the mantelpiece full of £5 notes, how can the constable demonstrate that the money might be used for criminal purposes? How is it envisaged that one could show that the cash was intended for the purposes of crime? I do not understand how such a provision would work.

Mr. Ainsworth: In those circumstances, I doubt whether the constable would be able to satisfy anyone that he had reasonable grounds to suspect that the cash was the proceeds of crime or was intended for criminal use, but if he had entered the premises with a search warrant, properly verified by the court, looking for drugs, or found evidence that something had taken place on those premises and then found a large amount of money—where a drugs deal was about to take place or where known drugs dealers were known to exist—he might be able to persuade the court, on the balance of probabilities, that the money was intended for use in drug trafficking. It is no good his seizing cash if he will have to give it back and pay compensation and interest on it. He must be able to go to court and satisfy

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the magistrate that the money was intended for use in crime or was the proceeds of crime. I would argue that he would not attempt to do that in the circumstances described by the hon. Gentleman.

Mr. Hawkins: Just before the Minister responded to the excellent intervention of my hon. Friend the Member for Henley (Mr. Johnson), he was relying in what he said on the findings of the performance and innovation unit, so I was asking my hon. Friend the Member for Beaconsfield whether the Committee had seen the full text of that report. I do not think that we have. If I am right that the full text is not in the public domain, it would be helpful for us to see it, given that the Minister is relying on it directly.

Mr. Ainsworth: It is not a private document. It has been around for a long time. We published the draft Bill that referred extensively to it, so I apologise if I have not personally provided the hon. Gentleman with a copy of it, but I have no intention of keeping it secret. It has been referred to repeatedly as justification for the introduction of these measures.

Mr. Hawkins: It may be my fault, because I might have been able to request a copy from the Vote Office, but I raise the subject now because the Minister referred in detail to a specific passage of the report in relation to the clause. Because he relied on it so specifically, I thought that it would be helpful to know exactly the terms. Perhaps I can find them out myself without troubling him.

Mr. Ainsworth: Perhaps I can continue with my argument against the amendment.

Existing legislation on drugs and terrorism does not require any link to be made between the cash under suspicion and a specific offence. We can see no reason for the cash recovery scheme under the Bill to be different from existing ones.

I accept that the power to search a person provided for in clause 288 is intrusive, but the Bill provides a raft of safeguards to limit use of the power. The seizing officer will be required to have a reasonable suspicion that there is more than the minimum sum in cash or recoverable property that is intended for use in unlawful conduct. We would not expect that requirement to be satisfied in many cases. Even if the test were met in the opinion of the officer, subsequent provisions put in place additional safeguards. That includes the need for prior approval of the provision, the requirement for a statutory code of practice and the creation of the role of an appointed person.

In the circumstances, I ask the hon. Member for Beaconsfield to think that those are the safeguards on which we can rely to ensure that the powers are used in a targeted fashion to back up intelligence-led operations. They will not be sweeping powers to allow constables to harass individuals when there is no just cause for them to do so, as he suggested.

Mr. Carmichael: The Minister appears to say that the provisions are in line with existing law. Up to a point, that is true. However, surely they expand current law, which exclusively relates to the power to

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search individuals if they are suspected of having committed an imprisonable offence. The Bill refers to ''unlawful conduct'', which is a much wider definition.

 
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