Proceeds of Crime Bill

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Mr. Hawkins: Thank you, Mr. McWilliam, for your guidance. I had originally misunderstood you and thought that we were debating all the amendments, including amendment No. 25. I shall return to that amendment because Opposition Members have some important points to make about it, but for now I want to speak about amendment No. 76 because it goes some way towards dealing with one of the points that was made in an earlier intervention.

We must remind ourselves constantly of the pre-eminent principle of the separation of powers. The courts have a role in our constitution, as does Parliament. Neither role is predominant, which is why the hon. Member for Lewes was right to respond as he did to the intervention from the hon. Member for Glasgow, Cathcart (Mr. Harris). Parliament enacts the law, but it is for the judiciary to interpret it. If Parliament decides that the judiciary has completely misunderstood its intentions, it can—because no Parliament can bind its successor—return to the issue, as we are doing now.

As Ministers have said repeatedly, the Bill will take the previous regime further. It would be wrong for anyone in the House to say that Parliament is always superior to the judiciary. The judiciary has a separate role in our constitutional settlement and it is important that Members of Parliament should not pretend to be in the business of telling judges what to do. We must keep that constantly in mind.

In amendment No. 76, we have sought to add an extra safeguard in the form of paragraph (c). We are worried that there should always be a rational connection between the facts that are proved by the trigger convictions and the result.

I shall refer to Liberty's helpful briefing and I explain why we share its view. Our object is to ensure that, when the assumptions apply to any property in the first place, the courts should be satisfied that there is a sufficiently rational connection between the facts proven by way of the trigger conviction and the property in question. Why is that important? If there were no rational basis to conclude that the property in question was acquired from unlawful conduct, we should not be doing what the Minister has made it clear that the Government do not wish to do, but what the hon. Member for Glasgow, Pollok may wish to do.

6.30 pm

As my hon. Friend the Member for Beaconsfield pointed out, there seems to be a difference between Ministers and one or two Government Back Benchers, who seem to be saying that if somebody is a criminal we should take all of their property regardless. The Minister made it clear, in response to my hon. Friend the Member for Beaconsfield, that that was not what the Government were saying. They say that there must be some link between the seized assets and the criminal conduct concerned. That can only be safeguarded if we add paragraph (c) to clause 11(6).

Government Back Benchers also questioned my hon. Friend, while he was thinking on his feet, about ways in which the avoidance of injustice would not be a sufficient safeguard by itself. I was thinking—sitting down, rather than on my feet, at that stage—that another example might be helpful to Government Members. If there were a case in which some of the property that the court might think about seizing was being used for the medical care of a handicapped child of the defendant, one would not be able to argue that taking away that property would cause injustice to the defendant, but one might be able to argue that it would not be appropriate to prevent the handicapped child, who had committed no offence, from being cared for. The court might want to consider applying criteria rather than blanket assumptions from which there is no escape.

Mr. McCabe: I am interested to hear about the handicapped child. However, if the child concerned were able-bodied and happened to have expensive dancing lessons, a string of ponies, a stable, skiing holidays and a yacht in the Caribbean, would the hon. Gentleman take the same view?

Mr. Hawkins: The hon. Gentleman has been helpful. When one considers amendments that move us away from blanket assumptions that the court must make and from which there is no escape to criteria, one must rely on those who make the decisions in individual court cases to use the criteria sensibly to rule out the protection of expensive dancing lessons and so on, and to use only criteria that introduce a discretion. That is what the hon. Member for Lewes and I are saying. We are worried about any question of judicial discretion being taken away completely and wholesale. It is not only the Opposition who have those concerns but Liberty, which is supported by many Government Members, including the hon. Member for Wrexham (Ian Lucas).

Ian Lucas: If I may return to the example of the handicapped child, it is perfectly clear that clause 16 refers to a serious risk of injustice, but that is not particularised to the defendant. The court would therefore have discretion to, for instance, prevent a house from being sold.

Mr. Hawkins: I am not sure that that is right. The hon. Gentleman and I may take a different view of the way in which judges might interpret the matter. As my hon. Friend the Member for Beaconsfield rightly said, we can differ honestly as professionals on how we anticipate that the courts may interpret it. As a skilled and experienced lawyer, the hon. Gentleman will accept that there is a big difference between mandatory assumptions, which the Government currently propose, and giving the courts discretionary criteria, which give clear guidance, and set out, under Pepper v. Hart, how the Government intend them to be used.

We do not want the Mr. Bigs or their associates to escape. There should be clear criteria but at least a measure of judicial discretion to enable judges to use their common sense. That is the difference between the hon. Gentleman and me. As the exceptions in clause 11(6) are currently drafted, I suspect that the courts would consider the injustice to the defendant. Everything else in the clause relates to the defendant. It would be wiser to maintain that element of judicial discretion. I am strengthened in that view by the fact that, with all-party support, an organisation such as Liberty, which the Minister knows considers these matters carefully, shares our concern.

The hon. Member for Wirral, West asked me whether there was any authority in English law for our concerns. There quite clearly is such authority on the point covered by amendment No. 34, and it is R v. Lambert, which is another case in the House of Lords Judicial Committee. In a moment, I shall quote from Lord Steyn, but I should first like to ensure that the Committee is clear that we are talking about amendment No. 34. Instead of the current wording we suggest inserting:

    ``the defendant adduces evidence which is sufficient to raise an issue with respect to the matter and the prosecution fails to prove its case on the matter.''

That would impose an explanatory or evidential burden of proof on the defendant rather than a legal burden of proof. Before we are accused of trying to make things easier for the defendant, I stress that we still put the burden on the defendant. It may be pretty onerous but that is the principle that the Government are pursuing and we do not challenge it. However, if the defendant comes up with something convincing that the prosecution cannot meet, these provisions should not bite. That is surely a clear principle of English law.The ultimate burden of proof goes back to the prosecutor only after an explanation is forthcoming. When no explanation is forthcoming or the quality of the explanation given by the defendant is such as to defy belief, the assumptions or criteria will apply in favour of the prosecution.

In Volume 3 of the Weekly Law Reports, on page 206, Lord Steyn says:

    ``The principle of proportionality requires the House to consider whether there was a pressing necessity to impose a legal rather than evidential burden on the accused. The effect of section 28 is that in a prosecution for possession of controlled drugs with intent to supply, although the prosecution must establish that prohibited drugs were in the possession of the defendant, and that he or she knew that the package contained something, the accused must prove on a balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt on this issue, they must convict him. This may occur when an accused adduces sufficient evidence to raise a doubt about his guilt but the jury is not convinced on a balance or probabilities that his account is true. Indeed it obliges the court to convict if the version of the accused is as likely to be true as not. This is a far-reaching consequence: a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped. It would be unprincipled to brush aside such possibilities as unlikely to happen in practice. Moreover, as Justice has pointed out in its valuable intervention, there may be real difficulties in determining the real facts upon which the sentencer must act in such cases. In any event, the burden of showing that only a reverse legal burden can overcome the difficulties of the prosecution in drugs cases is a heavy one.''

I shall quote at no more length from the judgment, although Liberty sent us a longer passage.

I must be careful not to offend the sub judice rules. Liberty referred us to a further case that has gone on appeal to the House of Lords, which is R v. Benjafield; R v. Rezvi. Although the House of Lords has heard the case, a verdict has not been delivered. The Minister may tell me otherwise but I have not seen a verdict. Section 4 of the Drug Trafficking Act 1994, the provisions of which the Government wish to use the Bill to extend, and section 72 of the Criminal Justice Act 1988 are the subject of the further appeal. Therefore, we cannot discuss that matter, although the House of Lords may give a judgment before the end of the Committee stage, which would provide further guidance. However, the Government would be wise to keep an open mind on the matter while a case concerning evidential burden on the defence is pending before the House of Lords, which the superior court of the land.

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