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Mr. Denham: Keen though he is to patronise me this afternoon, I do not think that the hon. Gentleman should persist in articulating such a distorted view of the procedure. First, in any case the prosecutor or the director of the new agency would have to decide whether to pursue the matter. Secondly, it is clear that the court must not make an assumption if it is shown to be incorrect or if there would be a serious risk of injustice if the assumption were made. That is an important part of the process, to which the hon. Gentleman does not appear to want to draw the House's attention.
Mr. Letwin: I apologise for the patronising tone—I meant my comments to be an outright attack. I was trying to be polite, but it seems to have been a gross error.
The Minister is about one quarter right—just to continue the patronising tone—
The Minister of State, Scotland Office (Mr. George Foulkes): You will be giving him marks out of 10 next.
Mr. Letwin: I shall do so shortly, but they will not be high.
The Minister is right to say that the court is required by the Bill to act in a manner that seeks to prevent injustice—I am sure that any English court would act in such a manner in any case. However, the court also has to engage in statutory construction—it has to look at the legislation and the regulations produced by the Secretary of State. The Bill specifically allows the Secretary of State to define in regulations anything that he chooses—the House has not seen the proposed regulations—as a basis for a criminal lifestyle. As the Bill contains no other definition than the definition that includes the provision for the Secretary of State to produce such regulations, no court will know what to do if it does not happen to like the Secretary of State's choices, because they will be the definitions in the regulations. Therefore, I fear that the Minister is three quarters wrong.
Things get worse, because once the court has decided that the individual hypothetically first convicted of a tachograph offence also has a criminal lifestyle—perhaps because he has fallen foul of items in the regulations that we have not seen—the court then has to make assumptions.
Mr. Stephen McCabe (Birmingham, Hall Green): Is the hon. Gentleman's difficulty that he has such a sacred regard for the value of money that he is unable to recognise tainted money? Is that why Conservative Members did not recognise that Asil Nadir had a criminal lifestyle?
Mr. Letwin: No, I have a sacred regard for the preservation of the rights of innocent individuals in the face of the state, and I suspect that the hon. Gentleman and the rest of the House share that regard. In our joint earnest desire to pursue criminals, we should not throw overboard the entire structure of our common law and traditions, which were created to protect innocent individuals against an overmighty state. I should have thought that that was common ground between Members on both sides of the House. The question is whether the Bill adequately achieves that balance. My argument is that in the parts that I am discussing, the Bill does not, as yet, do so.
Mr. Denham: The hon. Gentleman is confused. He persistently talks about innocent individuals, but the parts of the Bill to which he refers deal with people who have been convicted. To alleviate my confusion, it would be helpful if the hon. Gentleman stated from which crimes he thinks individuals should be able to retain the proceeds. He clearly has in mind a series of crimes in respect of which individuals should be free from any threat of recovery, and I should be interested to hear his list.
Mr. Letwin: I beg the Minister to calm himself a little and attend to the problem that he is creating. I believe that if he thinks about it, he will not want to do what he is here doing.
We are not talking about the proceeds of particular crimes. The point about the assumptions under clause 11—which the Minister muddled up hopelessly—is that they ask the court to look not at the proceeds of the crime of which the individual has been convicted, nor at the proceeds of the crimes specified in the regulations, but at the entirety of the assets gained by that individual over a six-year period.
If the individual has committed a tachograph offence and has committed three offences specified in regulations that we have not seen, it does not automatically follow—we should not allow ourselves to be dragged into prejudging the matter—that that individual should be arraigned for all of his proceeds over six years. To make that connection, the person in question has to be a villain. The question is whether we have a structure that will adequately differentiate between villains and people who are merely believed by the prosecutor to be villains.
The assumptions in question are not tests. They are assumptions that the court is to be asked to make, and the broad assumption is that if the person has a criminal lifestyle everything that he gained over the preceding six years is part of that criminal lifestyle.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): It must be the proceeds of crime.
Mr. Letwin: If the hon. Gentleman attends to clause 11, he will find that it does not have to be shown that the items in question are the proceeds of crime. It merely needs to be shown that they are in the hands of someone who has a criminal lifestyle—a critical distinction. I am astonished to be having this debate with the Minister.
Mr. Ainsworth: There are two relevant provisions: first, that the recoverable items are the proceeds of crime and, secondly, that there is no risk of injustice. Does the hon. Gentleman accept that both defences would be acceptable?
Mr. Letwin: I will be happy to eat my words if I am wrong, but I think that the recovery of which the Minister speaks in the first part of his remarks refers to part 5 and not part 2.
Mr. Ainsworth indicated dissent.
Mr. Letwin: If I am wrong about that, I apologise. I would like to see the relevant provision.
I have already accepted that courts will try to achieve justice, but they are guided by what is in the law and in regulations. If a court is told that someone has a criminal lifestyle and that they have committed three offences specified in the regulations, it will so decide. It will not have discretion to do otherwise.
The matter goes further. The authorities have a duty to confiscate not merely items that are in the hands of the person who has been shown to have a criminal lifestyle. Others who bought the items—perhaps honestly; perhaps at a discount store—could be brought within the provisions of clauses 41 to 46. As the Law Society has forcefully stated, their assets could be confiscated, too.
It is true that there is provision for compensation if, at the end of the process, the effort by the public prosecutor fails. However, when I asked the Minister about the serious default provisions, it became clear that he was not aware that compensation can be obtained only if the persons or authorities pursuing the matter have engaged in a serious default. They do not need merely to have gone wrong. [Interruption.] If the Minister knows that, I am astonished that he is as relaxed about it as he is.
An innocent third party who has bought something from someone against whom a rather rickety chain of actions has been taken, and that action has failed, could find themselves unable to obtain compensation for having been bankrupted because there was not a serious default, in the legal sense of the term, by the authorities that made the mistake and prosecuted. If that is not an imbalance between state and individual, I do not know what is.
I think that there is a serious practical problem. I apologise for adopting a tone that has riled the Minister. The Bill is the great work of the Home Office—it has 440 clauses, and I do not know how long it took to write instructions and draft the Bill, probably for the previous set of Ministers—yet relatively little attention has been paid to whether the fine balance between the individual and the state is being maintained. Notwithstanding the banter between us now, I hope that in Committee we can
go through these issues seriously to try to iron out some of the difficulties. Let us try to tighten the rules so that part 2 permits the confiscation of assets from real villains without exposing us to the risk that innocent individuals may be harmed quite unfairly. I feel confident that the Bill as drafted will expose us to that risk.
Mr. Davidson: Is the hon. Gentleman aware that when he speaks of the fine balance between the state and the individual he creates the impression that he and his party are soft on crime and are more interested in the civil liberties of drug dealers and criminals than in helping the Government to defend communities such as my own, which suffers considerably from the curse of drugs and criminals who, for a long period, have been virtually untouchable? If he is serious about supporting the general thrust of the Government's actions, could he not concentrate more on ways in which he could be helpful, rather than simply nit-pick and make derogatory remarks about the Minister?
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