Proceeds of Crime Bill

[back to previous text]

Mr. Ainsworth: I assure the hon. Gentleman that subsection (3) replicates the law as it applies now; we have not changed it. We have not made an error in drafting the passage, as he suggests. The amendment would create a burden to disregard the assumptions in the case of property acquired six years before proceedings commence. I do not know whether the hon. Gentleman intends that all such property should be put beyond the Bill's reach, and that there should be an amnesty-but that would be the consequence of his amendment.

Norman Baker: I hear what the Minister says. I accept that subsection (3) replicates wording that already exists, but I would be grateful if he would respond to the thrust of my previous intervention.

Mr. Ainsworth: The assumptions do not require a defendant to prove that property that left his ownership more than six years ago was not the proceeds of crime. They require that he prove that property in his possession is not the proceeds of crime, no matter how long ago he received it.

Mr. Hawkins rose-

Mr. Dominic Grieve (Beaconsfield) rose-

Mr. Ainsworth: I give way to the hon. Member for Surrey Heath (Mr. Hawkins).

Mr. Hawkins: I am not sure whether my hon. Friend and I were going to make the same point, but the Minister's use of the word ``amnesty'' is both somewhat inaccurate and somewhat provocative, because we do not think of the issue in that way. The Minister may have genuinely failed to understand our argument. I accept what he said about replicating current provisions, but the Bill introduces wider powers and much more draconian arrangements, so it is no good answering that the same wording was used in previous legislation.

The Bill puts the burden on the defendant. Courts commonly use a six-year limitations period when considering events. Does the Minister not understand that it is difficult for any defendant to prove what happened more than six years ago?

Mr. Ainsworth: No, I do not accept that. Every time an amendment is moved to make the confiscation of proceeds of crime more difficult, the excuse for that, and the reason for not replicating the existing legislation, is that the provision in the Bill can no longer be enforced because the process is wider than before. Repeatedly, amendments are moved that would make the confiscation of proceeds of crime more difficult, rather than easier. The hon. Gentleman is right to say that we want to give power to the courts and, in some cases, guide the courts about what they should do when confiscating proceeds of crime. We want the courts to apply such powers widely to all proceeds of crime.

We are tightening the provisions of existing legislation when that is justified, and when we do not believe that that is necessary, we are replicating existing legislation. There are one or two provisions in the Bill through which we are making things clearer and strengthening the provisions that are applied to the defendant. However, we are not making the confiscation of proceeds of crime more difficult. I am sorry that the hon. Gentleman considers my use of the word ``amnesty'' provocative, but that would be the effect of the amendment.

Mr. Stephen McCabe (Birmingham, Hall Green): The curious thing is that unless the hon. Member for Surrey Heath is a serial collector, what he said is utterly absurd. The concept that any individual, particularly an individual with a bank of accountants and solicitors at their disposal, could not account for their acquisitions of significant value over six years is utterly absurd. Is there any prospect that any person in this country could not account for where they acquired goods of a reasonable value?

Mr. Grieve rose-

Mr. McCabe: Perhaps the hon. Gentleman is a serial collector, too, and has so many goods that he cannot account for them. However, that is not typical of most people.

Mr. Ainsworth: My hon. Friend-and the Opposition-should not forget that the Bill provides that the court must bear any risk of serious injustice in mind.

Mr. Grieve: The Minister is missing the point. There are currently legal requirements for individuals to keep records-in respect of the Inland Revenue. The period for which records are required to be kept is six years prior to a particular date. It is unlikely that accountants, or anybody, will have information from before that. The Minister has a sort of fail-safe device, because subsection (6)(b) allows discretion if

    ``there would be a serious risk of injustice if the assumption were made.''

I fail to see how anything beyond the six-year period would not fall foul of that provision in any event. I will be interested to hear the Minister reconcile that with the provisions of subsection (3).

Mr. Ainsworth: The court may use the provisions in subsection (6)(b). It can say that it will not make the assumptions because to do that would cause a serious risk of injustice. That is what courts may do under current legislation. [Interruption.] I am perturbed that hon. Members continue to be outraged by my opinions.

Mr. Hawkins: May I try once more to explain the matter to the Minister, and end his perturbation? We are not outraged but mystified that he does not understand our point. When he responded to the hon. Member for Birmingham, Hall Green (Mr. McCabe) and me, he said that the Opposition were constantly trying to protect the proceeds of crime. In this case, the Minister has made an assumption that the assets have already been established as the proceeds of crime. However, we are saying that at that point it has not been established that they are the proceeds of crime-and the onus is on the defendant to show that they are not. Therefore, the Minister cannot make that assumption-and if the hon. Member for Birmingham, Hall Green thinks that everyone keeps records that stretch back more than six years, he must have a much larger filing cabinet in his house than I have in mine.

9.15 am

Mr. Ainsworth: I realise that the hon. Member for Beaconsfield (Mr. Grieve) has other business to attend to in the House, which is why he was in and out of the Committee on Tuesday, but I thought that I had explained the Government's intentions clearly.

There is a reverse burden on people who have criminal lifestyles. They are required to be able to rebut the assumptions-although safeguards with regard to that are provided in subsection (6). I have consistently said that that is our intention; I am not trying to deny it. I continue to be surprised that the Opposition fail to connect with the idea that criminals are adept at concealing the criminal origin of their property. Often, there is no paper trail; their property may materialise out of nowhere, with no indication of the date when they received it, and the prosecutor can prove only that it is owned by the defendant.

The effect of the amendment would be to make it difficult, in many cases, to confiscate the proceedings of crime; it would provide an amnesty for any property received. The hon. Member for Surrey Heath shakes his head, but I am right. I therefore ask the hon. Member for Lewes to withdraw the amendment, and if he does not, I ask Labour Members to vote against it.

Mr. Grieve: I understand the Minister's point, but he has failed to respond to ours-although I am unsure whether that was deliberate. Therefore I will briefly spell out the difference between the old and the new regimes.

Paragraph 4 of the explanatory notes to the Bill contains a definition of the existing regime:-

    ``Confiscation orders are available following a conviction. The purpose of confiscation proceedings is to recover the financial benefit that the offender has obtained from his criminal conduct. The court calculates the value of that benefit and orders the offender to pay an equivalent sum . . . Proceedings are conducted according to the civil standard of proof, i.e. on the balance of probabilities. In certain circumstances the court is empowered to assume that the defendant's assets, and his income and expenditure from any time after six years before proceedings were brought, have been derived from criminal conduct and to calculate the confiscation order accordingly.''

Therefore, the existing regime is ultimately controlled by the nature of the offence for which a person has been convicted. I do not think that the Minister will disagree with that, but, if I have got it wrong, I hope that he will correct me-[Interruption.]

The Chairman: Order. I know that it is occasionally necessary for the usual channels to communicate with those on the Back Benches, but I cannot allow private conversations to take place in the Committee.

Mr. Grieve: As I was saying, the existing structure is controlled by the nature of the offence. I accept that it is possible-and desirable-for the court to go back and look at many other assets, but ultimately, the lack of connection with the offence for which the person is being convicted will mean that those assets are unlikely to be seized.

However, the Minister wants to provide a much wider structure. He does not want merely to look at the assets that are in some way connected with the offence for which the person has been convicted-as happens now. The convictions are merely a trigger mechanism for a much wider confiscatory framework that will enable a person to be branded as having a criminal lifestyle, at which point all his assets, irrespective of whether they appear to have an immediate causal link with the offence for which he has been convicted, can be removed. The Minister has never disagreed with the idea that it would therefore be possible, when a serious criminal had escaped all convictions except minor ones, to use those minor convictions, which appeared totally unrelated to his assets, as the trigger to get to those assets. I have no disagreement with that, but that is the prospect that we are dealing with.

Given how wide-ranging the power will be, there appears to be a serious danger that an injustice could be committed. The Minister may say that he does not really mind if an injustice is committed, because somebody who has been labelled as criminal is of no concern to him. [Hon. Members: ``Shame.''] The tone of some of the comments during this debate has suggested that once one has passed the threshold of being branded for one's criminal lifestyle, one is a lower form of life, which should be stamped on. I am all in favour of stamping on some people, but even lower forms of animal life are entitled to some form of safeguard, and I do not think that those who drafted the Bill intended to confiscate assets other than those that were criminally acquired.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 22 November 2001