|Proceeds of Crime Bill
Vera Baird: I would suspect that any court would be—and clearly was in that case—sceptical about the naivety asserted. We are not throwing away all prospects of prosecuting someone who everyone believes to have collaborated, as my hon. Friend suggests. Much the same evidence will be produced under paragraphs (a) and (b) in respect of suspicion. One could say that there were many reasons why someone such as Sir Michael Richardson must have suspected what was going on. The fact that he was a high flier, and his friend's comments about his judgment, would be in the court's mind. If the court was sceptical about his excuses, he would be convicted.
We might think that that was sufficient. The trouble is that we must consider the matter from the opposite point of view. I am concerned about those in my constituency who work in the financial sector, not those at the dizzy heights who are represented by Conservative spokesmen—or those whom my hon. Friend the Member for Glasgow, Pollok represents them as representing. I am talking about those working for building societies, credit unions and so on. Some of them are highly skilled, and some are not. The same provisions will apply to them.
Those who could be criminalised under the Bill include a learner in a job, who exercises all the skill and judgment that can be expected of him but who does not have the experience to spot what is going on. Another example is that of a mother or father whose child has had toothache for a week. Such a person may not have had much sleep, may be worried and may not be paying more than the basic tick-over attention to the job.
Remember that it is not the job of such people to look out for money laundering all the time. That must be one of their duties up to a point, but it is their job to deal with financial transactions. Anyone who is anxious or worried about something—perhaps they are getting a divorce, are bereaved, are moving house or are suffering the sort of minor disorientation with which everyone is familiar—might be guilty of inattention and would then be a criminal.
In a less sympathetic but none the less common example, a person may make a mistake for no reason or may just have a bad day. He may blink when he should not have, and that might stop him noticing that there is something odd about one or two transactions. All those categories of persons would be guilty of an offence that carries a penalty of five years' imprisonment and a fine.
Mr. Stinchcombe: I am following my hon. Friend's contribution with great interest, and understand her points. However, I wonder whether those mentioned in her latter examples would not fall within the categories of having reasonable excuses for not disclosing information. A more appropriate term
Column Number: 1109may be criminalising the negligent, rather than criminalising the innocent.
Vera Baird: In my interpretation of the provision, the suggestions made by my hon. Friend may not fit the categories of reasonable excuses. When I come to that issue, I shall propose an amendment that might be of assistance. I am talking about criminalising the innocent. If he wants to say criminalising the negligent, and if that phrase more fairly represents the matter, that is fine. I am talking about people who have no moral culpability and would not be recognised as having done a bad thing or even a questionable thing. That a person makes a mistake that someone else would not have made is the test that will criminalise him.
I will take my life in my hands and make a brief lawyer's point in the presence of my hon. Friend the Member for Glasgow, Pollok. Offences of negligence are extremely rare in the criminal calendar. Negligence usually occurs during dangerous activities, such as driving a car. Obviously, drivers have a duty to take care and to concentrate, lest they endanger other people's lives. The serious sentencing proposed under the provision requires that a person's standards fall far below those of a reasonable person. There is no such qualification under the provision.
The hon. Member for Beaconsfield spoke about looking at one criminal offence and seeing how another crime differs from or resembles it. The nearest offence would be that of assisting an offender, when a person knows or suspects that another person has committed a criminal offence and gives him some peripheral help. To know or suspect is the test. Why is such a strong law needed? If a person knows or suspects that a crime has taken place and is in the unique position of being able to draw it to the attention of the authorities, he must do so. A person ought not to be guilty of a crime if he has not told somebody something that he did not know.
I want to make a couple of random points, but I will be as speedy as I can. The provision does not exist in the legislation that the Bill replaces. Throughout the Bill—and specifically under this part—all other criminal offences require that the person knows or suspects that the property that he is transferring, converting or doing whatever with is criminal property. It is against such a person, who is actively involved in money laundering, that the provisions are primarily aimed. Why should a person who is only a bystander—who is not charged with knowing, or suspecting, that money laundering is going on—be convicted of offences under a lower test of criminality than the people at whom the legislation is primarily aimed?
Earlier in Committee, we debated amendments that were designed to change the test under clauses 321 to 323 to knowing. It was implicit that in respect of all the main money laundering offences—as the explanatory note calls them—the Government were satisfied with the test of knowing or suspecting. What puzzles me is why it is necessary that the more peripheral a person's involvement, the greater his criminality.
Column Number: 1110
Subsection (5) raises the issue of whether a person who has a reasonable excuse for not disclosing the information is committing an offence. As my hon. Friend the Member for Wellingborough said, a reasonable excuse for not disclosing information must be that a person did not know or suspect that there was anything to disclose. As he also said, that is not an excuse. The provision will criminalise people who do not know or suspect, because the authorities believe that they ought to have known or suspected and that there were reasonable grounds for suspicion.
Under subsection (2)(a), if a person knows or suspects, he can say, ''I have a reasonable excuse. I thought that someone else had told the authorised person.'' Alternatively, he could say, ''I was too afraid to speak up, because I was being pressurised by the person whom I knew or suspected was money laundering.'' If a person has a criminal state of knowledge—under subsection (2)(a), he would have—and has behaved in an immoral way, he could still achieve justice by giving a reasonable excuse. However, a person who is not immoral, and who does not know or suspect that another person is engaged in money laundering, would fall under subsection (2)(b).
There does not seem to be a reasonable excuse that can be made for failure to notify because the fact that a person did not know simply does not work. The reasonable excuse must be connected with the disclosure. The only possible reasonable excuse for not telling—''I didn't know'' is not one—is something like, ''I didn't see the nominated officer at the time.'' The Government link the reasonable excuse with disclosure. That means that they do not want reasonable excuses to be available for a person who neither knows nor suspects, because there can be no reasonable excuses for that.
My suggestion is that if the Government reconsider the clause but do not remove the subsection, they could add a reasonable excuse clause to exclude those who did not know or suspect money laundering to exist when there were reasonable grounds to do so. The woman with a sick child could say that the reason for her not knowing or suspecting is that she was preoccupied with the child or tired for want of sleep. That would make justice available to such people. I hope that I make that clear because the only excuse for not notifying is, ''I didn't know.'' That is not an excuse that can be used under these provisions, because in order to find justice for people under subsection (2)(b), one must find a reasonable excuse for not appreciating what the authorities claim that a person should have known or suspected.
An amendment could be tabled to ameliorate the danger of injustice by inserting subsection (5)(c), stating that a person would not commit an offence under subsection (2)(a) if he had a reasonable excuse for not disclosing information, and a person would not commit an offence under subsection (2)(b) if he had a reasonable excuse for neither knowing nor suspecting that money laundering was taking place, despite the existence of reasonable grounds.
The correct way to progress is not to switch the burden of proof, allowing a policeman to say, looking back with 20-20 vision, that money laundering should
Column Number: 1111have been suspected, and thus to require a person to prove why that was not done. With respect, the matter should not be that way round.
I shall make my final couple of points—when I say finally, I mean finally. A good test of a crime is for a person to ask, ''How can I avoid doing it?'' People can usually avoid dishonesty and most criminality—I can avoid that—but how does one protect oneself against inattention at work? One tries to concentrate, but with the best will in the world, that is not how people work.
The Chairman: Order. May I assist the hon. Lady? I am having great trouble this afternoon in doing just that.
Vera Baird: You are very supportive, Mr. McWilliam—from a vantage point of total neutrality, of course.
How does one avoid committing the crime if one is tired or worried? Every time one is worried about something, the only way to avoid committing the crime would be to take the day off. That is in nobody's interest. Is that not a good test of how wide the power is?
There are other ways of dealing with inattention at work, such as internal disciplinary measures. By definition, the only time when people would be prosecuted for the offence would be when their employer knew that they failed to notice that money laundering was occurring, although they should have noticed it. If the employer was satisfied that there was no criminality under subsection (2)(b), he could act to punish inattention. In that way, the Minister's aim of disciplining the City so that it as safe as possible could be achieved, without the damaging consequence of deliberately criminalising the innocent.
|©Parliamentary copyright 2002||Prepared 22 January 2002|