Proceeds of Crime Bill

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Mr. Ainsworth: Listening to the hon. Gentleman, I understand with clarity why litigation costs so much. We spoke for almost a whole day about certain issues. If he was diverted from his argument, that was because the Opposition proposed two separate arguments. I alluded to that when I said that the hon. Member for Surrey Heath (Mr. Hawkins) was blunt and clear, while the hon. Gentleman's own argument was more circumspect. We were talking about two amendments, and it was clear that the main worries of the hon. Member for Beaconsfield were about clause 323. However, the hon. Member for Surrey Heath did not share his aim of narrowing some of the arguments down, and majored on clause 321.

I was surprised that the amendment tabled to clause 321 was pressed to a Division. I was even more surprised that the Liberal Democrats, having supported that amendment, today voted against the amendment tabled to clause 323. That was astonishing.

Mr. Hawkins: I believe that the Minister has been in the House as long as I have, so he should never be surprised when the Liberal Democrats do something totally inconsistent with what they did five minutes ago, or even five seconds ago.

On a serious point, the Minister should understand that, just as he shares his work load with his hon.—and equally able—Friend, the Minister of State, I

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share the work load with my hon. Friend the Member for Beaconsfield. I make my points in my usual blunt fashion—as I said last week, I take that as a compliment—and my hon. Friend refines and extends the argument. That does not mean that our arguments are inconsistent with each other, but that they have several parts, which apply to different sections of the Bill.

Mr. Ainsworth: I am not so sure about that. I do not believe that the differences were presentational. They were more substantial than that.

Mr. Alistair Carmichael (Orkney and Shetland): As the Minister has chosen to highlight the fact that I voted for the first amendment, I must point out that I abstained from the second vote.

Mr. Ainsworth: That is what I said.

Mr. Carmichael: No, the hon. Gentleman said that I voted against the amendment. It is reasonable to point out that, given that the first vote was lost, I did not understand why a second Division was held, which is why I abstained. There is nothing unusual about that. It is unhelpful for the Minister to proceed in a partisan way.

Mr. Ainsworth: I apologise. If I suggested that the hon. Gentleman voted for and then against, I did not mean to—but how he justifies his support for the amendment to clause 321, which was tabled by the Conservatives, followed by abstention on the amendment to clause 323, I do not know. I cannot see the logic of that.

One of the main arguments of the hon. Member for Beaconsfield is that he cannot believe that there was not a genuine reason for the way in which the Bill was drafted. When Opposition Members examine Bills, they consider the draftsman to be perverse and tyrannical. However, when those on the Government Benches consider proposed legislation, they believe that the draftsman must obviously have had a genuine reason for the drafting. That is probably a fault of parliamentarians, not draftsmen.

11.30 am

Mr. Grieve: We have established the common ground between us. Last week the Under-Secretary said—and I am sure that he is right—that the draftsman enacts policy into Bills, so he cannot be blamed. The person who can be blamed is the one who made the Government's policy decisions, which required the draftsman to perform convolutions. Much of the material that was drafted under past Conservative Governments I do not find any more commendable than what comes from the present Government. I am willing to be impartial in such matters.

Mr. Ainsworth: I do not want my hon. Friend the Member for Redcar, or any other member of the Committee, to detract from, or cast aspersions on, the gallantry that she showed me the other day. It was one of the nicest things that has ever happened to me, and I do not want anyone to row back from it.

We have had a long discussion on the clause. I do not want to delay the Committee, but the hon. Member for Beaconsfield rightly acknowledged the

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overlap, and the fact that some of its provisions existed elsewhere, too. I accept that there is a good deal of overlap between the two offences. Section 22 of the Theft Act 1968 states:

    ''A person handles stolen goods if (otherwise than in the course of stealing) knowing or believing them to be stolen goods he dishonestly receives the goods or assists in their retention, removal, disposal or realisation by or for benefit of another person, or if he arranges to do so.''

For our purposes, the similarity with that offence and the clause before us is the fact that it is an offence merely to receive stolen goods, knowing or believing them to be so. It is therefore true that the receiver of stolen goods will commit the clause 323 offence as well as the offence under section 22 of the Theft Act. The penalties for both offences are the same. On indictment for either offence, a person is liable to a maximum period of imprisonment of 14 years.

There are many examples in United Kingdom law of conduct that falls under overlapping offences. The hon. Gentleman suggested that that occurs only when the penalties are different. I am not sure that that is so. [Interruption.] I think that he agrees. He knows that the measures under the Bill are not massively different from what applies in other areas of the law. Whether a person is charged with one offence or another, or both, will depend on the circumstances. Under present circumstances, whether a person is charged with one or the other offence, or both, does not seem to matter a great deal, because the maximum penalty would be the same.

The more pertinent question is whether there is a continuing need for section 22 of the Theft Act, when the clause captures the same conduct. It is said that a prosecution is much more likely under the clause than under section 22, especially given that the prosecution would only have to establish a mens rea element of knowing or suspecting that the items were stolen goods rather than the actual knowledge or belief, which would be a tougher test.

In defence of section 22, the handling offence is well established and works well in conjunction with the offence of theft to ensure that those who steal and deal in stolen property are appropriately penalised. We need clause 323 because it is much wider than the handling offence and covers any benefit gained from crime, not just stolen goods. For example, the clause would take in the profits of drug dealing, prostitution, video piracy and many other things that the handling offence does not cover. We cannot make a distinction between the proceeds of theft and other crimes, because that would require us to establish the predicate offence that had created the funds that were being laundered.

The differentiation in the current legislation between drug trafficking and other crimes has given rise to difficulties. Some money launderers are escaping conviction because the prosecution are unable to establish precisely what kind of criminal conduct gave rise to the funds in question. It should be enough that the prosecution can establish that

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property is the product of some sort of criminal conduct.

More importantly—although the hon. Member for Surrey Heath will probably disagree—we need to include all conduct under the clause in order to fulfil our international obligations. I refer hon. Members to the EC money laundering directive of 1991, the Council of Europe convention on laundering, search, seizure and confiscation of the proceeds of crime, and the 1988 Vienna drugs convention, all of which require the inclusion of possession, acquisition and use of criminal proceeds in legislation as part of a country's commitment to criminalising money laundering.

I cannot accept that the conduct mentioned in the clause should be reduced to ''knowledge or belief'', as the hon. Member for Beaconsfield attempted to argue in a previous sitting.

Mr. Grieve: If that is correct, presumably the Minister is saying that those who drafted the amendments to the Criminal Justice Act 1988, which I assume was amended partly because of the EC directive of 1991, failed to do the job properly. As we discussed earlier, the Criminal Justice Act 1993 uses the word ''knowing''. I am surprised at the Minister's comments. The last Conservative Government were not generally found wanting in their desire to crack down on crime, yet he seems to suggest that they did not implement the directive properly, as they used ''knowing'' rather than ''knowing and suspecting''.

Mr. Ainsworth: I do not know the details about that. The hon. Gentleman has read Hansard, as he readily acknowledges. I congratulate him on the work that he has done in digging out the background to the existing legislation. I do not know exactly what the motives were for the way in which the 1993 Act was framed.

We have considered our international obligations and believe that the provisions are necessary in order to meet them. We also believe that we have included the appropriate tests. It is no good looking back at what was the case previously. Surely we need to examine the matter in its setting, and to consider the problems that we face today. We must decide what measures are justifiable and necessary in order to tackle those problems.

It is all very well for the hon. Gentleman to quote selectively from past Acts, but on every occasion he and his colleagues have attempted to make the prosecutor's burden more difficult, not less. I ask him to use practical argument not only to consider what has happened in the past but to justify making that burden more difficult in the present. Our international obligations are fairly loose on the question of how the mental element is to be incorporated in law as regards possession. It is left to countries to include such provision in accordance with their legal principles and constitution. However, clause 323 is needed if we are to meet our obligations and if those obligations do not dictate to us what should be the burden on the prosecution with regard to the offences under the clause.

There is an overlap, but it is not unusual for such overlaps to exist. Prosecutors might ask why someone

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is not pursued under this legislation, rather than under a previous Theft Act, but that Act should not be removed from the statute book, as it is well used, and it is highly appropriate in the circumstances that often apply. There is no reason in principle to make the prosecution's case more difficult, just because of the overlap that the hon. Gentleman has identified.

 
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Prepared 22 January 2002