|Proceeds of Crime Bill
Mr. Ainsworth: We are dealing with the regulated sector, not with everybody, as other people—but not I—have said. We believe that the sector should work as a result of the adequate training of all its staff. If the sector is to be effective, we must require it to insist on that and to put measures in place. Many of the discussions held during the drafting of the Bill were aimed at ensuring that exactly that happens, and that employers are able to issue guidelines and to ensure that those guidelines are available and that training takes place.
Is it unreasonable to say that if trained workers in the regulated financial sector take some action concerning property that they know or suspect is criminal in origin, it should not be possible to suppose that they have committed an offence and should appear in court? I do not think that unreasonable, but clearly the Opposition do.
Mr. Boris Johnson (Henley): The Minister cannot have it both ways. I do not see why the elementary clarification cannot be made. He has been unnecessarily tough on my hon. Friend the Member for Beaconsfield, who has made a point that is to do with both the drafting and the substance of the clause. Why can we not insert ''knowingly''? Why can the
Column Number: 982clause not say, ''knows or has reasonable grounds to suspect,'' especially as clause 329 says ''knows or suspects''? What is sauce for the goose should be sauce for the gander. I suspect that the intention of the draftsman, the Minister and whoever else was involved in drawing up the provision is to crack down on people who do not have the full mens rea, to use the legal phrase.
Mr. Ainsworth: I am almost as tough as the principals of public schools are when they expel pupils for using cannabis and then fine the parents.
The hon. Gentleman is trying to come to the rescue of the hon. Member for Beaconsfield. I do not blame him for that; it is commendable. However, the amendment does not make a simple clarification. It removes the ''suspicion'' element from the offence.
Mr. Johnson: My hon. Friend the Member for Beaconsfield made the good point—it has yet to be addressed by the Committee—that suspicion is not a good test. It is hard to prove that someone has suspected a person. If I were an accountant, I might have a client whose bona fides I have no reason to doubt. He asks me to do something with a large sum of money. The momentary suspicion that it is a bit fishy flashes across my mind, but I then dismiss it. Am I guilty under the provisions of the Bill? It would be unfair if I were imprisoned for having that momentary suspicion. It would be much better if the provision were clarified as my hon. Friend suggests.
Mr. Ainsworth: The answer is potentially yes, but not automatically. Those are matters for first the prosecuting agencies and then the courts to take into account. The hon. Gentleman—and the amendment—would have us remove suspicion altogether. If that happened, someone could be transferring or concealing laundered goods and the proceeds of crime. They could be drug trafficking, and so on. If we accepted the amendment, we would be lowering the threshold against which people are required to prove their position. We would have to prove that they knew. A person who had acted in such a way, not momentarily but systematically, over a period, would be able to say, ''You don't know that I knew, and you can't prove that I knew, so I'm free and you can't do anything about it.''
Mr. Grieve: The Minister makes a couple of revealing comments. First, he said, ''Potentially, yes.'' Then, a little further on, he said, ''Of course, if the activity is done momentarily and not systematically, it would not apply.'' That is why I find the provision tyrannical.
The Minister of State, Scotland Office (Mr. George Foulkes): Rubbish.
Mr. Grieve: Yes it is, because it leaves people in a state of massive uncertainty about where they stand, whereas the normal tests in English law, knowledge and belief, are well established and make sense to the ordinary lay person and the person dealing with the matter. The Minister is introducing a different test that will ultimately be left to the discretion of those who decide to prosecute people, with the potential of
Column Number: 983sending them to prison for 14 years. That is what I do not like about the provision.
Mr. Ainsworth: Good old English law, not foreigners, or Europeans, or anyone else, would exercise that discretion, but that is what the hon. Gentleman does not like. I do not know where he is coming from. As I said, I and the Government believe that we have a problem, and that is why we are introducing the clause.
Mr. Ian Davidson (Glasgow, Pollok): I have not intervened up to now because it seemed to be a debate between lawyers. Am I right in understanding that the way out of all the draconian things that it is being suggested would fall on someone's head if they did this, that or the other is to make a disclosure? The Opposition are arguing against making a disclosure and for such movements of huge amounts to be kept secret so that, presumably, they can take a rake-off from them. A fleeting suspicion might flit across the mind of the hon. Member for Henley (Mr. Johnson), were he an accountant, but any problem could be alleviated simply by making a disclosure. Given those circumstances, the provision does not seem tyrannical.
Mr. Ainsworth: My hon. Friend is right, and he exposes well the point made by the hon. Member for Henley. In the event of suspicion, no matter how fleeting, all that the person must do is report it—make a disclosure—and he relieves himself of any doubt about any consequences.
Mr. Johnson: I wonder whether the Minister seriously means that. How can an accountant have a professional relationship with his client if he goes around sneaking—
Mr. Davidson: Sneaking?
Mr. Johnson: Yes, sneaking. They are a bunch of sneaks over there on the Government Benches. How can that relationship be possible if the accountant is sneaking to all and sundry about his private transactions with his clients? It is odd that the Minister should support the hon. Gentleman's view.
Mr. Ainsworth: The hon. Gentleman seems to be arguing that the need for a confidential relationship between a person and his accountant should relieve people from a requirement to abide by the law and report criminal proceeds.
Norman Baker (Lewes): Does not the matter turn on the extent of suspicion that might be deemed appropriate or deemed to trigger the threshold at which a disclosure should be made? In clause 329(3)(b), might it not be sensible, and meet some of the anxieties expressed this morning, to insert the word ''reasonably'' in front of the word ''suspect''? One of the Minister's colleagues suggested that that happened in courts, and that is how courts behave. Might that meet some of the anxieties expressed without diluting the impact of what the Minister is trying to do?
Mr. Ainsworth: I can deal only with the amendment that is before me, and that is not it. I do not know how we can put into clause 329(3) the requirement that someone should have a high degree of suspicion, or a reasonable degree of suspicion, or a low degree of suspicion, or whatever.
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If someone suspects that he is laundering money that is the proceeds of crime—that is criminal property—I fail to understand why there is a problem with the idea that he should report that. That is the crux of the matter, as my hon. Friend the Member for Glasgow, Pollok has pointed out.
Mr. Harris: The Minister might find it helpful if I mention a point that I first raised on Second Reading about the Financial Investigations (Northern Ireland) Order 2001, which the Government introduced before the general election. The clause closely replicates those provisions. They were opposed by the Conservative party and the professions in Northern Ireland, but they have proved to be extremely effective in clamping down on money laundering there.
Mr. Ainsworth: Yesterday, I drifted into Northern Ireland Questions and heard Opposition spokesmen saying, ''Isn't it dreadful that we are not taking effective action against organised crime in Northern Ireland?'' In the Chamber, Conservative Members are saying that that is awful and that the Government are being ineffective, but here they are doing their level best to render ineffective legislation that is intended to tackle crime.
Norman Baker: My previous intervention was intended to provide certainty, as people should know where they stand: they should be clear about when a disclosure should be made. The point made by the hon. Member for Henley was not entirely inappropriate. If the tiniest doubt were suddenly to enter someone's mind that there was a remote possibility that they might be dealing with criminal property, should that automatically trigger them to make a disclosure? If that is the case, there will be a lot of disclosures.
Mr. Ainsworth: Let us examine that point. A small doubt fleetingly enters someone's mind that they might be dealing with criminal property—drug money, for instance. What should they do? Is the hon. Gentleman suggesting that, if it is only a small and fleeting doubt, they should ignore it and carry on and conduct the transaction? That is, in effect, what he is suggesting by seeking to introduce a threshold with regard to suspicion. He is suggesting that if people have merely a small and fleeting doubt, they should carry on with the transaction—that they should get it off their plates and ignore the consequences.
The people to whom we are referring work in the regulated financial sector. If small, fleeting doubts enter their minds, is there no responsibility on them to pry a little to discover whether their doubts have any basis in truth? What does the hon. Gentleman want? He seems to be suggesting that if they do not really think about those doubts—if they are not fully engaged because it is early in the morning, for instance—they should be relieved of any obligation to report them.
I suggest that they should investigate those doubts: if, by doing that, they dispel them, they should carry on with the transaction; but if they confirm them, they should make a disclosure.
|©Parliamentary copyright 2002||Prepared 17 January 2002|