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'(3) No powers conferred by this Part are exercisable in relation to any property which is, or represents, property obtained through unlawful conduct prior to the coming into force of this Part.'.
'decide on a balance of probabilities'
'give the benefit of the doubt to the person whose property is the subject of these proceedings in deciding'.
'on a balance of probabilities'
'to the standard of proof applicable in civil proceedings'.
'has reasonable grounds to believe'.
'(1A) No proceedings may be taken by the enforcement authority in relation to property where there has been a previous positive finding in relation to a defendant in confiscation proceedings pursuant to section 6 or 162 and the property that was the subject matter of the proceedings under section 6 or 162 includes the property sought to be recovered under this Part.'.
'has reasonable grounds to believe'.
'(1A) No proceedings may be taken by the enforcement authority in relation to property where there has been a previous positive finding in relation to an accused in confiscation proceedings pursuant to section 94 and the property that was the subject matter of the proceedings under section 94 includes the property sought to be recovered under this Part.'.
'or if the property was acquired more than 6 years before the date on which the proceedings were commenced'.
'(1A) If any other person has suffered a loss or damage as a result of an interim receiver or interim administrator dealing with his property in the reasonable but mistaken belief that he was entitled to do so in pursuance of an interim receiving order or interim administration order, such person may apply to the court for compensation'.
Mr. Grieve: This part of the Bill concerns civil recovery. As the House will be aware from our discussions on Second Reading, it is the intention that, in circumstances in which people have committed no offence whatever, a process can be initiated by the director that aims to seize their assets on the basis that it can be shown on the balance of probabilities that they have been gained as a result of criminal conduct.
The proceedings are not so much against the person as against the assets. The tainted nature of the assets is the key to whether they are liable to seizure and confiscation. It emerged in Committee as we considered part 5 that the process under civil recovery should not be considered akin to that which one might expect in normal civil litigation between citizens in England and Wales. In fact, it is wholly dissimilar. It is a process of administrative law by which the state sets out to recover assets that it believes to have a criminal origin. The scales are weighed in a way that is wholly different from what happens in ordinary civil proceedings. This is not a case of two people with competing rights going to court. It is a procedure initiated by the state against assets but, in reality, it affects the individuals holding those assets. It can have serious consequences for those individuals, who can suffer eventual bankruptcy. The procedure also attracts adverse publicity, but the Government have always treated the matter as a civil procedure.
After the Standing Committee had concluded its consideration of part 5, the Joint Committee on Human Rights provided a helpful and illuminating report on the Bill's compatibility with human rights legislation. The Joint Committee contains a number of members who are well versed in human rights law. Its report expresses serious doubts about whether part 5 is a civil procedure. I share those doubts, and that view became firmer as we scrutinised the Bill in Committee.
If it is true that part 5 is not a civil procedure, a glaring difficulty is that it is retrospective in operation. It concerns not only assets that may be acquired after the legislation comes into force, but assets that may have been acquired, subject to the 12-year limitation period, prior to that date.
If the Minister believes that the Joint Committee on Human Rights is mistaken, he must provide a detailed analysis this evening of his reasoning. I am mindful that time is pressing, so I do not want to read out the details of the Joint Committee's recommendations. However, the report specifically draws the matter to the House's attention. Paragraph 26 states:
One approach would be to say that, if in doubt, the House should err on the side of seeking to uphold the principles of the Human Rights Act 1998, which only so recently incorporated the ECHR into our law. The Government gave it a fanfare of publicity, and I am sure that the Minister would not want to go down in history as one of the early examples of non-compliance with the 1998 Act.
I have read the Joint Committee's report carefully, and I am bound to say that I favour its view. Everything that I have seen about the civil recovery provisions leads me to believe that they have nothing to do with ordinary civil litigation.
Three other amendments in the group tabled by the official Opposition merit consideration. They are part of a package, and allow the House to take a global view of the principles involved in part 5. Amendment No. 60 applies to clause 250, and addresses the question of what the tests in the proceedings should be to determine whether the assets arise from unlawful conduct. Unfortunately, we have not had an opportunity to look
My view, which was shared in Standing Committee by other hon. Members, is that the proper test should be the standard of proof applicable in civil proceedings. Generally speaking, that standard of proof is the balance of probabilities. That is how most issues are resolved. For example, if I am run over by a car and sue the driver, the question of whether he is responsible for my injuries through his negligence will be decided on the balance of probabilities.
However, because it is also well established that allegations are made in civil litigation that are tantamount to allegations of criminal conduct, the courts have developed principles for a higher test. That is because of the gravity of the allegations. Indeed, the test has been known to rise, effectively, to the criminal standard.
I take the view that when Parliament is initiating such a profound legislative change, it would be wise to allow a measure of discretion to the judiciary to develop, by practice, the appropriate standard within civil litigation to apply. Given the draconian nature of the consequences to the individual of the director establishing that assets have been unlawfully gained, it would be correct to allow the standard of proof applicable in civil litigation proceedings to apply.
We had a long discussion about this and I do not wish to go over it again. However, I have deep anxieties. I was concerned in Committee that, as these are not ordinary civil proceedings, the standard of proof should not simply be the same as that which applies in a county court if someone has been injured by a motor car through someone else's negligence.
It is not for us, as a Parliament, to set the way in which judges develop the standard of proof. If the judiciary wish to stick to the balance of probabilities, they can do so. If they wish to evolve a fresh or new test at an intermediate level, they should be allowed to do so. We are fettering them, and I am concerned that that may lead to injustice. I am also concerned that it may lead to the erosion of the Bill's compatibility with the Human Rights Act 1998. For that reason, I commend amendment No. 60 to the House.