Proceeds of Crime Bill

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Mr. Tredinnick: I am listening with great interest to my hon. Friend. I urge him not to be bludgeoned by the Minister of State. He is raising an important point, not least concerning why parliamentary draftsmen did not spot such matters, given that the Bill has been in preparation for so long. How could two countries in the United Kingdom have radically different procedures? My hon. Friend is a distinguished barrister and the points that he has raised are valid. The Government must explain why they got it wrong in the first place.

Mr. Grieve: I am grateful to my hon. Friend. I agree that the Government have made a sudden turnaround.

Mr. Foulkes: I assure both hon. Gentlemen that the matter in question is not one of draftsmanship or of the wording being changed for legal reasons. It is a clear policy decision. The Government keep being accused by Opposition Members of pressing ahead without listening to the people. We listened to those Back Benchers who made reasonable comments on Second Reading, and that is democratic and sensible action, which I commend to Opposition Members. Indeed, if they had paid attention to representations made to them in the past, they might not have been the Opposition now.

Mr. Grieve: The Minister is really helpful. He explained that the issue was one not of drafting but of policy. Given that he has been in post for some time, even though the Bill may also have been in gestation for some time, too, he must have had some role to play in deciding the policy that originally produced the Scottish part and its discretionary powers for confiscation. I look forward to hearing in detail from the Minister all the principles that underlay his policy decision and that of his colleagues on the Scottish Executive to draft the Scottish clauses on confiscation in a way that was so radically different, and better—although the wording is similar—from the way in which the clauses were drafted for England and Wales.

9.15 am

Mr. Tredinnick: How can the Minister claim that he is clear about the situation when there has obviously been confusion in the back room? It is because there were two separate proposals. Is this not the first crack in the unity of Labour Members? I congratulate my hon. Friend on managing to create the fissure in the so-called unity. I must be careful about parliamentary language, but I do not believe that the word ``disingenuous'' would have to be withdrawn. It seems strange that we have unearthed the discrepancy so early in our proceedings, and it has had to be put right straight away. How can the Minister, who has been a Member for many years, say that matters are crystal clear when clearly they have been obscure?

Mr. Grieve: My hon. Friend is right. We will have to wait with bated breath to hear what the Minister has to say about how the policy decisions were originally made and how the policy changes were subsequently made.

I return to the impact that the amendments would have. We have tackled the Minister of State about why the Scottish provisions were initially different. Will the Under-Secretary—or whichever of the two in the double act that I am dealing with this morning—say why there is such an objection to providing judicial discretion in the clause in England and Wales?

What is the Minister so worried about? What have his officials told him might happen if we were to insert the word ``may'' and remove the word ``must''?

Mr. Tom Harris (Glasgow, Cathcart): Now may be the proper time to give an example—given to me by my hon. Friends the Members for Glasgow, Pollok (Mr. Davidson) and for Glasgow, Anniesland (John Robertson)—of one of the problems that has been caused by the existing system, under which the Crown Office in Scotland has discretionary powers. Several months ago, Strathclyde police sought a confiscation order for a convicted drug dealer in Glasgow and took £75,000 from him. A few weeks after that, the same investigating officers discovered that the same gentleman had an endowment policy that was about to pay out £50,000. The police contacted the Crown Office to point this out and to seek a confiscation order for the endowment policy. The response from the Crown Office was, ``Give the guy a break. You've already taken £75,000 from him. Why do you want to take any more?'' The case was dropped. If—

The Chairman: Order. Interventions should be brief. I believe that the hon. Gentleman has got the point.

Mr. Grieve: I listened carefully to the hon. Gentleman's comments. The discussion of the Bill on Second Reading was illuminating. Hon. Members, and especially those who represent constituencies—a substantial number are north of the border, particularly in the Glasgow area—where there are serious crime issues relating to drugs and drug trafficking, cited examples of the local Mr. Big, driving around in his 4x4, whose community recognises that he has substantial assets that are believed to have been acquired through crime. They stressed that such situations cause communities real social and political concern, and expressed their desire to do something about it.

My constituency may be very wealthy, but nearby Slough has the lowest street price for heroin in the United Kingdom, so we are not immune to such problems. In some places, the social fabric has been torn apart by the sort of criminality that hon. Members mentioned on Second Reading. We made it clear in that debate that we support the Government's intentions, but we should not throw out the baby with the bathwater.

We must accept that our liberties and freedoms can be preserved only if we constantly question those who try to get rid of provisions that afford people protection. Historically, we have done that by giving the judiciary a measure of discretion. The clause removes those discretionary powers almost completely, although further on in the clause there are provisions that may allow the exercise of some discretion. Not only are we effectively removing those powers, we are introducing some unusual judicial tests on assumptions. Later, we shall discuss the standard of proof required to establish those tests.

I am not saying that the Bill is wrong to remove judicial discretion, but before we go down that road we must have a detailed explanation of the reasoning behind the wording. The wording at the beginning of part 3, which relates to Scotland, is different. That highlights the different approaches taken in part 2 and part 3, and it is legitimate for the Committee to focus on that issue, even if we conclude that the Minister may be right. I have not yet passed judgment on the matter—I have simply highlighted my concerns. I believe that the amendment can help us to achieve our aims, and can also provide the residual judicial discretion that is so important in ensuring that no injustice is caused.

Stephen Hesford (Wirral, West): When the hon. Gentleman was a practitioner, did he observe that the system that the Bill is designed to add to has not been working efficiently for many years?

Mr. Grieve: I certainly accept that the previous system had some flaws, but it is sometimes difficult to decide where those flaws lie. As a practitioner, I had experience of applications under the Drug Trafficking Offences Act 1986, although I have not made such an application for six or seven years now; I last did so in the early 1990s. One feature of such cases was how rough and ready some of the calculations were. I do not mean to criticise the judges, but that was how it happened. Information was often scanty. A wonderful innovation has been introduced that bases the sentence of those convicted on the street value of the drugs. The street value of drugs is one of those fascinating issues that beg the question how long is a piece of string. Up comes an officer and says that the street value of the drugs is £1 million, but we are sure usually that it was not £1 million that ended up in the pocket of the defendant just convicted. That is why the system was changed to basing the assessment for sentencing on weight.

I make that point because one problem in the early 1990s was that judges were presented with enormously high figures for the benefit from drug trafficking that turned out to be unrealistic. The money was never found. That system may not have worked properly, but I am not convinced that this legislation will improve it.

Ian Lucas (Wrexham): Has not the hon. Gentleman presented a cogent argument for, first, the creation of an assets recovery agency with the specific job of dealing with the problem and, secondly, making the order governed by clause 6 compulsory rather than discretionary, so the prosecuting authorities and the Assets Recovery Agency would know that they have to deal with the matter. The disadvantage of the current system is that it has been a back of the envelope job. It is dependent on conviction, which will still remain, and the discretion of the court on whether the matter proceeds. If the prosecuting authorities know that the matter is certain to proceed, they will make a detailed preparation of the case.

Mr. Grieve: The hon. Gentleman makes one point with which I do not disagree. The idea of creating a recovery agency with a dedicated remit has much to commend it. I am sure that he heard my speech on Second Reading and he will know that the official Opposition do not object to such an agency. However, the powers given to the director need close scrutiny. My gut feeling and experience is that, if we do not make allowance for the unusual and exceptional, there is a strong risk of ending up with an injustice. Having judicial discretion goes a long way towards meeting that problem. What does the Minister fear about the discretionary word in our amendment that makes him so determined that it should not be added? It is incumbent on him to justify the mandatory aspect, not the other way round.

Stephen Hesford: Under the previous system, most of which was governed by legislation passed by the previous Government and supported by Labour Members—although I did not have the honour of taking part—there was an inconsistency and insufficiency of approach. Putting the issues together as a package, the new system is designed to make a consistent and sufficient approach that will achieve the aims shared by Labour and most Opposition Members.

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