Proceeds of Crime Bill

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Norman Baker: I shall be brief for similar reasons. I have heard a good discussion and many useful contributions, and I do not want to let the matter pass without putting on record my concern that we have not yet dealt with the sensible points raised by the hon. Members for Wellingborough and for Redcar in particular, and also those of the hon. Member for Beaconsfield. That is not to say that the amendment is right—I believe that in some ways it is flawed. As my hon. Friend the Member for Orkney and Shetland said this morning, we shall not support it. However, that is not the same as pretending that the clause is perfect.

I am concerned by the Minister's response. He has failed to deal with the suggestion that there is a difference between those who know or suspect and those who, retrospectively, had reasonable grounds for knowing or suspecting. If someone had reasonable grounds but did not know or suspect, they could not have disclosed information. That is an important difference, but that was not reflected in the Minister's reply.

The Minister seems to be equating the offence under subsection (2)(a) with that under subsection (2)(b), although they are patently not the same offence. The only reason that he wants to do that is that, as we have heard, prosecuting authorities currently have difficulty persuading the courts that someone knows or suspects. He wants to lower the threshold in order to get more successful prosecutions. Of course, we all want him to find some way of ensuring that those who genuinely know or suspect are brought to justice. However, he must make sure that innocent people,

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who have simply been negligent or did not know, are not caught up in that net.

Mr. Ainsworth: The purpose is to secure an adequate level of reporting, not of prosecution.

Norman Baker: With respect, I do not think that that is the issue. Disclosure is mentioned in subsection (5)(a). Of course anyone who knows or suspects should disclose, and if they do not, they should be brought to book. However, that is not the issue, which is about those who should suspect but do not—those who are caught under subsection (2)(b). I am talking about protecting those people and separating the two offences. We heard a driving analogy from the hon. Member for Beaconsfield, a fishing analogy from my hon. Friend the Member for Orkney and Shetland and a point about splitting the offences from the hon. Member for Wellingborough.

This is a serious matter. If the Minister persists in not splitting the offences, and does not recognise that they have different impacts and vary in seriousness—one is complicit and one is negligent—there will be consequences. Either those who are simply negligent will face a higher penalty in the courts than they should, or the court will regard the law as unfair. That will weaken the Minister's position. Those who are caught under the provisions—there may be too few of them for the Minister—may have offences of knowing or suspecting downgraded by the court, as the offence is lumped together with that of having reasonable grounds. In other words, it would be like ensuring that those few people who are caught driving dangerously were prosecuted for driving without due care and attention.

The Minister may be weakening his own case. The amendment is flawed, but the hon. Member for Beaconsfield was right to table it. The Minister should, even at this late stage, say that he recognises the issue. He should consider the issue carefully and table an amendment to deal with it, if not today, at another sitting or, better still, in another place. I hope that he will agree.

Mr. Grieve: This has been an interesting debate. I am grateful to hon. Members of all parties for their contributions. I say that because issues relating to the amendment have arisen about the clause and its wording. One of those issues had not occurred to me before this sitting. It is about how one would draft an indictment for the offence. I am mindful of the passage of time, and I shall ensure that I am sitting down and we can have a vote on the matter in time to take the other business. I want to make that clear beforehand, so as to reassure the Whip, who otherwise will wonder why on earth we went through this exercise.

The Chairman: Order. May I make it clear that we have to dispose of the other business, and it is debatable.

Mr. Grieve: I appreciate that.

First, the intentions of the Government and the Opposition are not far apart. We all want a system in which people give time and attention to whether to make disclosure. I am also happy with the concept that there should be a criminal offence in relation to those

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who know or suspect but do not make that disclosure. However, I have great anxiety about the reasonable grounds for knowing or suspecting and imposing an objective test when there is no guilty knowledge.

I commend the speech of the hon. Member for Redcar to the Minister. She expressed the position well, by identifying clearly her anxieties about the way in which the legislation might work in practice. Although the word may have been abused during the Committee, she came close to saying that the Bill was slightly tyrannical. It puts people in a climate of total uncertainty, and indeed fear of whether they are committing or might be committing a serious criminal offence unwittingly. That form of criminality that does not commend itself to me. On that score, I hope that the Minister will think again.

I want to turn to what seems to me to be another important point. In a sense, it is not a repetition of what I said earlier, as it emerged during debate. It started with the contribution of the hon. Member for Wellingborough. Looking through the Bill, and wishing to support the Minister 90 per cent. of the way, he identified the curious drafting of the clause. At the slight risk of repeating myself, the reason for the curious drafting was the adoption of section 52 of the Drug Trafficking Act 1994, which reads almost identically, and includes the defence of a reasonable excuse, which appears at exactly the same point in the clause. He properly picked up on the oddity of that when no reasonable excuse could be available because the person would not have known in the first place, and was still being criminalised.

The model of the Drug Trafficking Act 1994 has been adopted when it does not make sense in practice. Although it made sense in terms of an offence of knowing or suspecting, it no longer makes sense given two limbs—knowing or suspecting or having reasonable grounds for knowing or suspecting. Thereafter, the saving clauses do not make sense. If nothing else, that ought to be a good reason for the Minister to reconsider the drafting aspects, even if my view is that he should go much further than that.

The hon. Member for Wellingborough asked why the two offences are not separated, and he continued—this was much more heretical—to suggest two different penalties. I have wondered what I would do if somebody asked me, as a counsel, to draft an indictment under clause 324. Would I draft it to state that a person knew or suspected, or had reasonable grounds for knowing or suspecting, and that that is his criminality? If the Minister intends that to happen, a serious problem arises. When the case reaches court, the prosecutor must nail his colours to the mast, and someone who is convicted may have to be sentenced on the basis that he had only reasonable grounds for knowing or suspecting, although the evidence may be glaring that he knew or suspected all along.

The only way out of that would be to request a special verdict. That is frowned on in our courts, although it has been done. The judge would have to ask the jury a twofold question to secure a conviction. He would ask whether the members of the jury believed that the defendant knew or suspected, or

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that he had only reasonable grounds to know or suspect. Of course, if we had two clauses, one could draft two counts on the indictment—one for each offence. The jury could be invited to return an either or verdict on one or the other.

However, the issue goes further than that. We have discussed—I hope that the Minister is listening, because I am trying to help him—a person who commits an offence. However, the Minister will agree that a body corporate could also commit an offence. A person and a body corporate are identical for legislative purposes. The Minister could consider that knowing or suspecting must apply to people, but there could be an offence against a corporation of having reasonable grounds to know or suspect, which could be punishable by only a fine, if the mischief that the Minister is so anxious about is imposing a financial penalty or sanction on large organisations.

The suggestion does not necessarily commend itself to me, although it commends itself far more than the Bill, which criminalises individuals who do not have guilty knowledge. There is a much greater track record of individual corporations that are liable for negligent acts, such as in the area of health and safety at work. Allegations in such cases would not normally be made against an individual, but in any event there is no sanction of imprisonment. It is absolutely astonishing that the Committee should contemplate a person losing their liberty because of the negligence that we are discussing.

The Minister might consider that the matter is worth exploring. I anticipate that we will lose the vote, although I will press the amendment to a Division. I hope that he considers the matter with his officials, because he may table an amendment on Report, or in another place. He may find that people's minds are working in the same direction and would reach an outcome that would satisfy his desire to raise standards and satisfy those of us who are alarmed at the prospect of individuals being criminalised and imprisoned for offences in which there is no guilty knowledge of any kind.

6.45 pm

However, for the moment, I must go with the evidence behind the amendment and my position. In such circumstances, I would not do justice to my arguments or those of the hon. Member for Redcar—I am sorry that she has slipped out of the Committee; I hope that that was not because she thought that she would be delicately situated on the matter because of her arguments—if I did not press the matter.

I detected that the view expressed by the Liberal Democrats, perhaps understandably, differed between this morning and this afternoon. I understood that they would support the Government rather than the amendment. I hope that they reconsider that position because the clause is totally unsatisfactory.

In such circumstances, the correct procedure is to vote on the amendment. I commend it to the

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Committee because it removes a provision that is poorly drafted, criminalises individuals and is wrong. If the Minister returns on Report with a further amendment, I will listen carefully.

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 15.

Division No. 28]

Field, Mr. Mark Grieve, Mr. Dominic
Wilshire, Mr. David

Ainsworth, Mr. Bob Baker, Norman Carmichael, Mr. Alistair Clark, Mrs. Helen David, Mr. Wayne Davidson, Mr. Ian Foulkes, Mr. George Harris, Mr. Tom
Hesford, Stephen Lazarowicz, Mr. Mark Lucas, Ian McCabe, Mr. Stephen McGuire, Mrs. Anne Robertson, John Stinchcombe, Mr. Paul

Question accordingly negatived.

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Prepared 22 January 2002