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Mr. Ainsworth: I do not accept the hon. Gentleman's argument that there is a major difficulty with the Bill as drafted. It would be far more problematic to require the prosecutor to decide at the outset how to frame an indictment, and to make him choose then between the objective and the subjective test. That would lead to the power being under-used. It certainly would not lead to what is central to the argumenta step change in the quality of staff in the regulated sector in this country, and the way in which that sector operates with regard to money laundering. I contend that history shows that that step change is badly needed.
Ian Lucas: Does my hon. Friend accept that the real difficulty with the new clause is that it would lead to alternative charges being placed on the indictment, and that the inevitable result would be plea bargaining? The less serious offence would regularly be accepted, especially if it involved only the imposition of a financial penalty.
Mr. Ainsworth: I have said that that would be the dilemma facing the prosecutor. I believe that the hon. Member for Beaconsfield has accepted that that is what would happen, and that that is what he wants.
Mr. Ainsworth: The hon. Gentleman must realise that the jury can do precisely that under the Bill as it stands. The mental elements can be taken into account by the court and by the judge in sentencing. There is not a problem in that respect given the way in which the Bill is structured.
Vera Baird: Is not the difficulty about the judge deciding the level of criminality so that he can impose the penalty that the jury might decide that the accused knowingly committed an offence while the judge sentenced him only for doing so negligently, or the other way around?
Mr. Ainsworth: I think that the courts are capable of dealing with this offence in the way that the Bill provides, and I believe that my hon. Friend agrees. They can decide on the element of mens rea present in the offence and take account of that when a sentence is imposed. I do not think that it is beyond the capacity of the courts to do that.
We were asked to look at defences. Representations have been made to everyone involved in the Bill about the impact that the offence could have on junior staff. Concern was expressed that people might not know or suspect that money laundering was taking place because they had not had the necessary training. There is an obligation to provide training for staff, and a company could be prosecuted for not doing so. We thought that that was adequate to deal with the situation, but because of concerns that have been raised both in the House and by organisations making representations to us, we brought forward Government amendment No. 93 to cover the situation and provide the defence that no training was given. The measure was discussed extensively in Committee.
Government amendment No. 93 will accordingly provide the defence that the employer had not provided staff with the relevant training. The training that we have in mind is that which all employers are required to provide to their employees by reason of regulation 5 of the Money Laundering Regulations 1993. We intend to use an order-making power to enable the Secretary of State to specify the kind of training that will apply.
As well as giving us an insight into some of his deeper thoughts about whether Traceys and Wendys could ever be thought of as company managing directors, the hon. Member for Bury St. Edmunds (Mr. Ruffley) asked whether there was a problem with clause 330(5). He wanted to know that the provision in paragraph (b) was not dependent on that in paragraph (a). It is not. A professional legal adviser would be protected and would not have to prove that he had a reasonable excuse for not disclosing information.
Norman Baker: Doubtless the hon. Member for Bury St. Edmunds (Mr. Ruffley) thought that Tracey was a man. Tracey is a man's name and that is why the hon. Gentleman believed that he might be a managing director.
We have discussed what constitutes a "reasonable excuse" under clause 330(5)(a). The hon. Member for Redcar (Vera Baird) suggested earlier that a bad day or a problem with one's children might constitute such an
Mr. Ainsworth: No. I have not managed to respond to the intervention of the hon. Member for Lewes (Norman Baker) yet. I cannot take another until I have done that. I do not want to stack up interventions, as the hon. Member for Bury St. Edmunds provokes me to do.
My hon. Friend the Member for Redcar sought some assurances about clause 330(5)(a). The offence for which the clause provides applies both when the person knows and when the person has reasonable grounds for knowing. Subsection (5)(a) provides a defence of a "reasonable excuse" for not disclosing. The examples that my hon. Friend gave would be raised with the prosecutor. She gave an amusing example of a police officer behaving obtusely or unreasonably, but the issues that she raised could be considered by the prosecuting authorities and accepted as reasonable excuses if they believed that they crossed the requisite threshold.
My hon. Friend also asked whether we could consider a code of practice. I am happy to continue the discussion with her if she wants to pursue the matter. However, I fear that introducing such a code could entail problems; it might be deemed to interfere with the independence of the Crown Prosecution Service. The CPS needs to decide whether to prosecute, taking all the facts of the case into consideration; it would not necessarily want to be bound by a code of practice that was imposed on it.
Mr. Ruffley: It is kind of the Minister to give way. I cannot yet read the record, so he must correct me if I am wrong, but in his earlier response to points about clause 330(5) he appeared to suggest that a person did not commit an offence under the provision if paragraph (a) or paragraph (b) applied. However, the clause provides that paragraphs (a) and (b) must be taken into account.
Mr. Ainsworth: The court would decide what constituted a reasonable excuse. I was explaining that in response to the points raised by my hon. Friend the Member for Redcar. The prosecuting authorities will decide whether to take a case forward. If they decide to do so, the court will determine whether the excuse is reasonable. We are not trying to fetter the court.
The word "and" does not link paragraphs (a) and (b) of subsection (5). The word "or" is implied, although I accept that it is not stated. I assure the hon. Gentleman that, if he reads the subsection carefully, "or" is implied. The professional legal adviser does not therefore have to be covered by paragraph (a). HeI should emphasise "he or she" because of the hon. Gentleman's difficultiesdoes not need the reasonable excuse for which paragraph (a) provides.
Mr. Carmichael: I intended to make only one narrow point in an intervention, but I have become increasingly irritated as the debate has progressed and I now have a number of issues to raise. I shall, however, try to give hon. Members a lesson in brevity in so doing and I hope that it is well taken.
On new clause 7 and the "bad night" defence, which at first I thought was a reference to the hon. Member for Southend, West (Mr. Amess), I declare an interest as the father of an 11-month-old son who is cutting his first set of teeth. The hon. Member for Redcar (Vera Baird) made her point well. The Minister yesterday invited us to sympathise with the two families living next door to each other in a terraced street, one of which was hard-working and strugglingperhaps failingto make their mortgage payments. Overnight, his attitude has changed and it seems that those are the very people he is trying to persecute. The Minister and Labour Members must accept that a substantial number of ordinary hard-working low-grade employees are going to be caught by the Bill's provisions, and there is an inequity in that. The hon. Member for Glasgow, Pollok (Mr. Davidson) drew parallels with careless driving. I do not want to get into that except to place it on the record that his points are absolute mince.
Some hon. Members mentioned alternative verdicts. That is complex. There are various ways in which alternative verdicts can be returned. If knowingly and negligently are alternatives in the same offence, a sheriff and possibly a jury can convict under deletion. I accept that that is open to them. However, the Minister must be aware that it is sometimes difficult to get a jury to convict under deletion. Instead, we get a conviction for the whole offence. As the hon. Member for Redcar said, that can result from a misunderstanding between the jury and the judge over conviction and sentence. There is much to commend in the prosecutor having the option open to draft the indictment with the negligence offence as an alternative.
Let me deal with the comments that the hon. Member for Angus (Mr. Weir) made on amendment No. 175. The hon. Member for Beaconsfield (Mr. Grieve) was mistaken when he was uncharacteristically soft on the Scottish National party. The amendment states that someone