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Mr. Stinchcombe: I was about to come on to that. In Committee, the Conservatives wanted to remove the offence from the Bill, but having heard some of the arguments of Labour Members, they have modified their position. However, the hon. Member for Beaconsfield made it clear in his arguments that, as a matter of principle, he still has residual objections to the crime of negligence being in the Bill, and I am simply putting on record why, despite my reservations about the way in which the offence of negligence is included in this legislation, I believe, as a matter of principle, that it should be in this Bill.
Mr. Stinchcombe: Yesterday, we did not discuss many of the clauses, so if the hon. Gentleman will forgive me, I will make progress so that I can deal with some points of drafting. It seems clear to me that the Government have tabled amendment No. 93 precisely to try to deal with some of the drafting points that I raised in Committee.
In Committee, I asked three questions—two of detail and one of more significance. First, how should the indictment be drafted? I appreciate the points made by the hon. Member for Beaconsfield, but, on balance, indictments can be drafted using the either/or formulation and that issue can be resolved. Secondly, what should be the appropriate penalty for the offences? I asked that question because it seems likely that different thresholds should be established for the two types of offence, given that different culpability will be attached to them. I simply tell the hon. Gentleman that, yesterday, he argued for judicial discretion. The current proposal will preserve such discretion, so the judge can reach his conclusion on what the appropriate penalty should be in the circumstances of any case, and there is some force in that argument.
Mr. Grieve: I perfectly understand the hon. Gentleman's point about judicial discretion, but most statutes provide upper and lower limits—usually upper limits—for penalties, based on Parliament's assessment of what is correct in public policy terms. For example, no one can be sent to prison for 16 years for a single theft offence. So, surely, there is no reason why, if the House considers that a financial penalty is appropriate in cases of negligence, we should not spell that out. Does he seriously think that someone should be sent to prison for an offence of negligence that relates to this type of default?
Mr. Stinchcombe: I can conceive of certain circumstances, involving gross negligence and huge sums,
where such a penalty might be appropriate. I simply tell the hon. Gentleman that I understand his concerns and fully appreciate them—indeed, I raised them in Committee—but I also understand the force of the Government's argument, "Let us leave it to the judge to decide in any circumstances that come before him."The issue of greater significance in respect of the offence of negligence that I raised in Committee—I do so again now to discuss whether the Government have dealt with it in amendment No. 93—is that we provide a defence, an opt-out, for all offences under the clause as drafted: the person can say that he did not disclose the information because he had a reasonable excuse not to do so. Of course, if an individual did not appreciate that someone was a money launderer when he should have done, he would not disclose it. Prima facie, that would be the most obvious and reasonable excuse, and the individual could say, "I did not do it, because I did not realise that I had to, or could have done." Otherwise, everyone would disclose all information, and that cannot be right.
That point seems to be dealt with technically in a satisfactory manner under Government amendment No. 93, because it states that no offence has been committed if the person
- "does not know or suspect"
I am persuaded that that is the correct approach, for the very first reasons that I advanced for agreeing with the offence of negligence in principle. We are dealing with the regulated sector and people are making money out of that sector. Because it is regulated and because of the harm that can be done in estates in Glasgow and Wellingborough, we should require appropriate professionalism of those professionals. To amend clause 330 so that it will be mandatory to provide such training and to take it seriously is a very sensible way forward.
4.30 pm
Norman Baker: Not for the first time, I rise to support the broad thrust of the comments made by the hon. Member for Beaconsfield (Mr. Grieve). It worries me slightly to find myself agreeing with the Conservative party so much—I hope that I am not catching anything nasty in doing so. However, he raises some interesting and important points, which need to be addressed.
First, someone's intention when an offence is committed seems to be terribly important. There is a difference between someone who deliberately sets out to commit a criminal offence, whatever it may be, and someone who commits an offence inadvertently, even if he or she should have known that that offence was being committed and should have been able to take action to stop it. In other words, they had been negligent. There is a difference between being negligent and wilfully intending to commit an offence.
The example cited by the hon. Gentleman of shoplifting is not the most happy one. I am familiar with the example of a river pollution incident. An individual, through an
error, allowed a river to be polluted, and that led to a great deal of environmental damage, the killing of many fish and consequences for innocent third parties such as other farmers, and the like.Although the consequences were significant for those affected and the environment, that is very different from somebody deliberately setting out to kill those fish, poison that river and affect innocent third parties. The consequences for the third parties might be the same, but the intention in the person's mind is different. The law must recognise that difference. That is why I am uncomfortable, too, with the wording of clause 330.
Another reason is that subsection (2) is an either/or provision. It states:
- "The first condition is that he—
(a) knows or suspects"
- "has reasonable grounds for knowing or suspecting".
Ian Lucas (Wrexham): Is it not a matter for the prosecution to prove that the individual concerned had reasonable grounds for knowing or suspecting? The burden remains on the prosecution.
Norman Baker: I am not sure that it does so entirely. Although the burden ultimately remains on the prosecution, it could construct a case for a person having reasonable grounds, and then that person must refute it. That would be different from the way in which he would refute the condition of knowing or suspecting in subsection (2)(a). They are not quite the same thing; the burden shifts slightly.
I welcome Government amendment No. 93, which picks up the point that people should be properly trained. Of course the regulatory sector should be properly trained, and to a high standard. It is not inappropriate for the Secretary of State to suggest the sort of training that should occur and to specify it in guidance. It would be more serious if someone had received such training and was still negligent. It is therefore right that the amendment will make the sector more regulated and the people in it more professional and properly trained. It also gives someone less of an excuse for negligence following such training.
The fact is, however, that somebody could still be negligent thereafter. They could fail to see something or inadvertently make an error that they should not have made and that the training should have prevented them from making, and be negligent. That is very different from deliberately setting out to commit an offence or from knowing or suspecting and doing nothing about it. If those two scenarios are different in someone's mind, the penalties for them should be different. That is why it is right to consider how the penalties could be separated. I am instinctively uncomfortable criminalising a wilful act in the same way as an inadvertent one. That is the essence of new clause 7, and I therefore support its premise.
The hon. Member for Beaconsfield will accept that amendment No. 175 does not work.
Mr. Alistair Carmichael (Orkney and Shetland): Yes it does.
Norman Baker: My hon. Friend says that it does work. It works in the sense that it would create separate penalties—but for crimes north and south of the border, which was not the hon. Gentleman's intention in tabling it. So, it might need some tightening up.
Mr. Grieve: From having spoken to the hon. Member for Orkney and Shetland (Mr. Carmichael), my understanding is that the comments from the Scottish National party Members are wholly erroneous and that level 5 on the standard scale in Scotland is identical to level 5 on the standard scale in England and Wales. However, I accept that the amendment could do with some tightening up with respect to summary jurisdiction and the Crown court.
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