Proceeds of Crime Bill

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Mr. Grieve: My hon. Friend may be right. The wording of clause 329(3) is odd, because it defines criminal property not objectively but by reference to the subjective knowledge of an individual handling it, and its origin. That is an extraordinary definition.

Mr. Stinchcombe: If criminal property were defined by reference not to suspicion but to, say, knowing or believing the property to be criminal, would the hon. Gentleman still see a purpose in incorporating a separate mens rea in subsection (1)? What would be the justification of concealing, disguising, converting, transferring or removing property that the person knew or believed to be criminal?

Mr. Grieve: The hon. Gentleman makes a good point, but what I have suggested would be better drafting. I dislike an assertion made in a statute that a person commits an offence if he does a number of things, which does not immediately explain the saving clause. However, I accept that that is a matter of drafting, not substance, which would also be true if clause 329(3) were worded differently. I have tried to read the clauses in totality, because they are quite revealing of the drift of the draftsperson. The drift of the person drafting part 7 is draconian—indeed, almost tyrannical—in its desire to instil terror into those who handle money, because of the possible penalties and consequences of doing so. It is necessary to examine the nooks and crannies to find the saving clauses. That is a bad way of drafting legislation.

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Mr. Harris: The hon. Gentleman offered us a few examples to support the amendment. I offer him a different one. If a lawyer or accountant is given a suitcase of money, say £500,000, from a person who says that his girl friend managed to earn that amount through a tanning salon in Mount Florida, in Glasgow, it is quite conceivable that he would have absolutely no knowledge that the money was made illegally. However, I believe that it would be unbelievable to expect him to have no suspicion at all that the money was made illegally, especially if he knows Mount Florida.

The hon. Gentleman asserts that responsibility for a crime must be based on knowledge rather than suspicion. That is a good defence in court that we should not offer such members of the professions.

9.15 am

Mr. Grieve: I disagree with the hon. Gentleman that that would be the consequence. Let us examine stolen goods. A person handles stolen goods if he knows or believes that they are stolen. Frequently, in court—although I am not sure how this happens in Scotland—a person denies that, but the prosecution shows from the surrounding circumstances that the person must have known or believed that the goods, such as a video offered in a pub, were stolen because they were offered at a huge undervalue. Courts have not had historic difficulty in getting round that defence.

I shall take the hon. Gentleman's example. If a solicitor were handed a huge sum that is supposed to have come from a tanning business in Glasgow, he would be put on notice to bring the sum under the definition of clause 321, even with the amendment. There would not be a defence unless the person could show that he knew legitimate reasons why the money from the business was normally handled in cash, and had background knowledge of the profits that caused him to believe that the surrounding circumstances were legitimate.

Ian Lucas: Would adopting the words ''knowing or believing'', as in the Theft Act 1978, address the concern behind the amendment? That has operated successfully, in my personal experience. Should we import the words, ''knowing or believing'', rather than, ''knowing or suspecting''?

Mr. Grieve: As often happens in the Committee, discussion has led us to a potentially better wording than the original drafting or the amendments. I would have little problem with the hon. Gentleman's suggestion. If the Minister tells us this morning that he will return on Report with such an amendment, leaving aside the question of the drafting, I would be happier. I think that ''knowing and suspecting'' is unusual terminology.

Stephen Hesford (Wirral, West): We are dealing here with highly qualified people, such as accountants and solicitors. We are not dealing with Joe Soap on the housing estate who bumps into somebody in the pub. The Theft Act addresses a different situation. Why should the Bill not provide a stiffer test for those who have greater opportunity and experience to examine the money that they handle? Would a court that

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examines the Bill not introduce the reasonable test? In effect, there would be reasonable suspicion.

Mr. Grieve: The last point is the hon. Gentleman's best. I need much persuasion before getting rid of the ordinary terminology.

As for the higher test, the money laundering provision will catch people who are not the professionals that the hon. Gentleman described. For example, an estate agent who handles funds on a property transaction could be covered. We are not discussing only solicitors.

I have a considerable worry about the difficulties, including unintended and potentially racist consequences, that part 7 will cause to individuals. At what point does one wonder why a person has so much money? Do we start to judge people on their appearance or nation of origin? If an Armenian or Georgian business man asks a person to carry out investments, should he be suspicious because the business man is from a country with a reputation for lawlessness, although other circumstances do not give rise to the suspicion that criminal property is involved?

Part 7 poses considerable difficulties for professionals, and we shall consider it in more detail later. If we start by getting right the basis of the criminal test under which people will be convicted of handling property, everything else in part 7 will start to fall into place. Suspicion on its own would put far too great a burden on the professionals concerned. That is why I would prefer a subjective test to be introduced, which exists in many other areas of the criminal law, and is capable of meeting the requirements.

The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): In response to the hon. Member for Surrey Heath (Mr. Hawkins), I should point out to the Committee, and for the sake of Hansard, that the Liberal Democrats have now joined us. For the sake of fairness, I should also mention that he did not point out that his Whip, who has also now joined us, was also not present earlier—not that I would want to be churlish, either.

Mr. Mark Field (Cities of London and Westminster): As we are now correcting my hon. Friend the Member for Surrey Heath, I should like to point out that Opposition Members are equally in thrall to the hon. Member for Stirling.

Mr. Ainsworth: How gallant. I shall have to ensure that one or two of my hon. Friends in the Whips Office are aware of the comments that have been made. It would give me great pleasure to do so.

On the substantive issue, the hon. Member for Beaconsfield seems to be obsessed with the draftsman, who continually amuses and concerns him. He uses colourful language about the ''tyrannical'' drift of the draftsman. I am fascinated by the contrast between the way in which the two Conservative spokesmen present their views on the issue. At least the hon. Member for Surrey Heath had the decency to be straightforward, blunt and to the point. He said that he was worried about the amendment, and that it was a matter of policy. We know where we stand with him—the

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amendment is an issue of substance—but the hon. Member for Beaconsfield continued at great length to try to pretend that most, or at least half, of his concerns are about what the draftsman did. He is well aware that the draftsman drafts policy. Admittedly, we should try, when we can, to help the draftsman to produce a Bill that is clear and succinct, but he knows that from time to time draftsmen are obliged to turn inside out and upside down in order to be clear and to encapsulate the policy that they have been asked to encapsulate. That is the case in this instance.

Mr. Grieve: The criticism therefore lies with the Minister and the Government, and not with the draftsman. The Government's policy is to deal with money laundering in this way, and I can well imagine that the draftsman's efforts are a reflection of the draconian and tyrannical way in which the Government have decided to approach the issue.

Mr. Ainsworth: Absolutely. I am glad that I caused the hon. Gentleman to say that I, and not the draftsman, am the tyrant, at least for the benefit of my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson). We have exposed the fact that the Opposition are worried about policy, not drafting. We should flush that out from behind the trees: the Opposition want to change the policy.

Mr. Hawkins: I think that this is also what my hon. Friend the Member for Beaconsfield was about to say, but I got in just before him. To reinforce the point—I am grateful to the Minister for saying that I made my point bluntly, as I always try to be blunt in such matters—we do have a policy difference with the Government, but it is perfectly acceptable for a member of any Committee to say that one of the ways of addressing the matter might be by drafting a piece of legislation in a more logical and sensible way.

The Minister ought to be realistic. Instead of attacking my hon. Friend, he should recognise that many of the interventions from his own side—notably from the hon. Members for Wellingborough and for Wrexham—also expressed concern about the way in which the provision is constructed. Indeed, the hon. Member for Wellingborough suggested a way of redrafting the Bill that might address my hon. Friend's concerns. Drafting is indeed also an issue.

Mr. Ainsworth: I am only reaching for honesty and clarity.

Half of what the hon. Member for Beaconsfield said gave the impression that, if the Bill were worded differently, everything would be fine and dandy. However, the argument is not about whether the wording is contorted, because he also said that an issue of principle is at stake about which Opposition Members have strong feelings.

The amendments are unnecessary. The Bill already includes the provision that there must be a mental element of either knowledge or—and this is the point—suspicion before either of the money laundering offences in question can be deemed to have been committed. The amendments have been drafted in a way that does not take into account the

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fact that these offences need to be read in conjunction with clause 329—as has been pointed out by my hon. Friends.

 
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Prepared 17 January 2002