|Proceeds of Crime Bill
Mr. Harris: The hon. Gentleman started his contribution by suggesting that he was keeping to the spirit of the Bill because the amendment would mean that the onus would still be on the defendant to establish proof. His explanation does not stand up to that. He suggests that as soon as the defendant comes up with new evidence, the onus is on the prosecuting authorities.
Mr. Hawkins: Liberty makes it clear that the ultimate burden of proof will remain with the defendant because he must start the process by producing convincing facts. Therefore, there will be an evidential burden on the defence. However, if the defendant comes up with compelling facts to which the prosecution must respond, that is a sensible safeguard in English law. There should not be a situation in which the defendant produces convincing facts and, although the prosecution says nothing, the defendant still loses. That is an essential safeguard.
I have said all that I need to say about the widened group of amendments. I will be interested to hear the Minister's comments, because I noticed that he nodded when I referred to the case that is sub judice.
Mr. Ainsworth: I shall try to deal with both sets of amendments and to be objective in my response to the hon. Member for Lewes, although the hon. Member for Surrey Heath made similar comments. I shall try not to characterise the amendments as simply weakening the Bill, although since that is what they would do, I have a duty to point it out.
Amendments Nos. 24 and 51 to 59 would have a twofold effect. Amendment No. 24 would make assumptions discretionary. The remaining amendments in the original group would change the wording of the Bill to include the word ``criterion''. The amendments would give the court calculating a lifestyle criminal's benefit the discretion to have regard to certain criteria. The Government believe firmly that mandatory assumptions are a key element in the process of recovering the proceeds of crime from those offenders who have a criminal lifestyle.
We are opposed to the amendments for several reasons. I refer first to amendment No. 24, in isolation from the others. History teaches us that discretionary assumptions are ineffective. The Conservative Government changed discretionary assumptions to mandatory assumptions in certain instances. Opposition Members asked whether the Scottish system was more acceptable because it was discretionary and said that the English and Welsh system was less effective because it was mandatory. There are about 1,200 confiscations a year in the English and Welsh jurisdictions. About 1,000 concern drugs and are mandatory. Only 200 are for other categories of crime, which are discretionary. That points to the fact that mandatory arrangements are being used more widely. They are certainly more effective at the moment in confiscating the proceeds of crime.
Norman Baker: That is an interesting point. The statistics to which the Minister referred are worrying. I should be interested to know whether the Government attempted to deal with that position before the Bill was introduced. Has guidance been issued, for example, to show the importance of existing assumptions? In that case, why have there not been more instances of assumptions being applied?
Mr. Ainsworth: The hon. Gentleman, who said that we should be mindful that we do not overrule the courts and rescind the paramountcy of Parliament, now suggests that we can solve such problems by giving guidance to the courts. We have all the Hansard reports on all the Acts concerning the proceeds of crime going back to 1986. When I read those reports, the really worrying aspect was that they all said the same thing, and they go back a generation. We have failed repeatedly to put an effective system into place to confiscate the proceeds of crime.
Various Under-Secretaries at the Home Department have told us how a particular refinement will make the difference and how that will suddenly be seen on the streets of our constituencies. We have been told how they will tackle crime and bring us back to the point where crime does not pay, yet Parliament has failed to do so. After all my years in the Whips office, I still have enough idealism to believe that we were elected to this place to make a difference. I want us to put us above point scoring. I accept that debating small points is what discussing a Bill in Committee is all about, but we must keep our eye on the big picture. Unless we make a step change in the way in which such legislation is drafted, we shall not make a difference. When we are in our dotage, another Under-Secretary of State at the Home Office will be saying on the radio that he now has the solution to the problem.
Mr. Hawkins: I am certainly trying to keep my eye on the big picture. Before giving way to the hon. Member for Lewes, the Minister came up with statistics that cannot be allowed to pass without challenge. Without knowing how many different cases were brought forward and how many applications were made under the current provisions, we cannoton the basis of 1,200 confiscations, of which 1,000 were of one type of case and 200 of another typedraw conclusions about the merits or otherwise of discretionary or mandatory systems. One often hears people say in this place that there are lies, damned lies and statistics, but the Minister knows perfectly well that one cannot extrapolate the conclusions that he has drawn on the basis of raw statistics. It is a false premise.
Mr. Ainsworth: The hon. Gentleman claims to have read some of the old Hansard reports and a speech by the now Lord Corbett. From my speed reading, I am not sure about that or about whether Lord Corbett made the points that the hon. Gentleman claims. None the less, the hon. Gentleman will know that previous Conservative Governments changed the legislation from discretionary to mandatory because the powers were not being used. I remind the Committee that the assumptions in the Drug Trafficking Offences Act 1986 were discretionary. The Government of the day found it necessary to replace them with mandatory assumptions because discretionary assumptions were not being used by the courts.
Amendment No. 24 would make assumptions discretionary. I will not say that it would weaken the Bill, since that would offend the hon. Member for Lewes, but it would return us to a situation that was deemed to be wholly unsatisfactory. The discretionary regime would allow the courts to disregard assumptions for any reason, including the general aversion to the process of particular judges, or for no reason at all. That is not acceptable. With many criminal lifestyle offenders, we are dealing with the top bracket of serious and organised crime. Moreover, there must be some consistency in the handling of criminal lifestyle cases across the jurisdiction.
Part 2 is in many respects a consolidation measure. In England and Wales, we have a drug trafficking regime with mandatory assumptions and a non-drug regime with discretionary assumptions. The hon. Member for Surrey Heath said that we are making mandatory assumptions for offences other than just drug trafficking. That is right. The hon. Member for Beaconsfield said that if the legislation is not used far more widely, it will be seen as a failure. I have made it clear that the measure of success will be when we are effectively confiscating the proceeds of crime. We should be examining effectiveness rather than width.
Hon Members repeatedly propose amendments that would have beneficial effects in some circumstances but would allow people great loopholes through which they would inevitably and rapidly climb. That would render the legislation much less effective. Our task is to draw together the two strands into a single regime that is either mandatory or discretionary. Given the historic lessons, we have decided in favour of a scheme that is mandatory throughout.
We have introduced a further safeguard to allow for the fact that assumptions are now mandatory in non-drug cases. The trigger offences have been raised from two qualifying offences in the current proceedings to four, or one in the current proceedings plus two others in separate trials in the past six years instead of just one other. There is also the general safeguard that the court must not make an assumption if there is a serious risk of injustice. I intervened on the hon. Member for Lewes to try to reassure him, because he thought that that hurdle was far too high. The assumption in clause 11(6)(a) can be shown by the defendant to be incorrect on the balance of probabilities. That measure will apply to the defendants' need to show that the assumption is incorrect.
The hon. Member for Surrey Heath quoted extensively from case law that goes back to 1983. I am beginning to get the measure of the hon. Gentleman; he goes back to 1983 to quote Lord Woolf's comments on an American case
Mr. Hawkins: On a point of order, Mr. McWilliam. The Minister may have misheard me or I may have used the wrong date. Whichever it was, the case from which I quoted Lord Woolf was in 1993, not 1983.
The Chairman: Order. That is not a point of order.
Mr. Ainsworth: I apologise. I think that the hon. Gentleman said 1983, but if he meant 1993, all well and good. None the less, it was some time ago, and Lord Woolf was referring to a case in American jurisdiction. The hon. Gentleman also quoted a case in Hong Kong jurisdiction, and told us that the principles were exactly the same because it was under the UK criminal justice system. In discussing the second set of amendments, he then quoted the Lambert case. He said that the principles were exactly the same, but he did not tell us that the Lambert case had nothing to do with confiscation. If the hon. Gentleman's research into case law was so extensive, why on earth did he not quote recent case law on assumptions in cases of confiscation? There is plenty of it. Why did he have to cite Hong Kong, America, and Lord Woolf from 1993? Why did he not quote Lord Woolf on Benjafield?
|©Parliamentary copyright 2001||Prepared 20 November 2001|