Proceeds of Crime Bill

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Mr. Grieve: The Minister's remarks were telling, because he implied that sometimes a criminal would know, but could not prove, where his legitimately acquired assets came from. That was the clear implication of his phraseology. I appreciate the Minister's point, but it therefore seems that sometimes injustice will occur because a person will know that he has a legitimate asset, but will not be able to prove that on the balance of probabilities. In such circumstances, money will be taken away. That is the direct result of reversing the burden of proof.

Mr. Ainsworth: The hon. Gentleman knows that a criminal will not have to prove the facts about an asset beyond reasonable doubt. The hon. Member for Spelthorne suggested that proof beyond reasonable doubt would be required for an asset that was purchased with legitimate income 30 years ago, and the paperwork to show that would have to be kept. That is complete nonsense. I know that some hon. Gentlemen are disparaging about my ability to understand the concepts that they put before the Committee, but they know that the suggestion is nonsense. A person will have to show that property currently held is not the proceeds of crime. That is not an unreasonable request if a person has been convicted of a crime or a pattern of offences that suggests a criminal lifestyle. If that were reversed, the legislation would be rendered unworkable, and confiscation of substantial assets, about which the hon. Member for Beaconsfield wishes to rejoice, would not occur.

Mr. Wilshire: I originally wanted to intervene when the Minister said that only one person-the criminal-``does know'' where his assets come from, and he told my hon. Friend the Member for Beaconsfield that a criminal ``will know'' that. I think that Hansard will show that. I cannot accept what the Minister said. This weekend, I invite him to look at everything in his house and say, ``Do I know exactly where that came from? Do I know exactly who purchased it? Do I know exactly how much it cost?'' If he does not know that, he will understand my point.

Mr. Ainsworth: The hon. Gentleman has inserted the word ``exactly'' and made reference to individual items. I know the origin of my income and how I pay for my assets. I know that, and I think that he does, too. A prosecutor would have great difficulty knowing that-he would find it practically impossible to know-as the hon. Gentleman will be aware.

Mr. Hawkins: May I try to explain to the Minister? In order to make a case, even on the balance of probabilities, no Conservative Member has suggested that the defendant will be asked to prove the matter beyond reasonable doubt.

Mr. Foulkes: It was implied.

Mr. Hawkins: No one implied it.

The court requires evidence, rather than mere assertion, to demonstrate the matter, even on the balance of probabilities. The Minister seems to fail to understand that. It is almost inconceivable that there would be evidence about property from years ago to raise even the balance of probabilities.

Mr. Ainsworth: We are discussing an amendment that would effectively put proceeds of crime that were attained prior to six years ago beyond the reach of the prosecuting authorities. I am not prepared to accept that. The amendment would cause serious damage. Appropriate safeguards are present that leave decisions in the hands of the court and, yes, the burden will be on the convicted criminal to show where his assets came from. I am not minded to accept the amendment.

Norman Baker: I listened with care to the Minister's comments about the previous group of amendments and he convinced me that it was appropriate not to insist on them. However, I listened to his comments about this amendment and I am more convinced than ever that he failed to address a serious matter. That is beyond reasonable doubt, or even the balance of probabilities.

The hon. Member for Spelthorne mentioned balance, which is a matter on which the Committee agrees. Every member of the Committee wants to nail criminals and, I hope, is happy with the concept of seizing the proceeds of crime. I also hope that we all have a common cause to avoid injustice, such as innocent people being caught by the Bill and property that is not the proceeds of crime being seized. I hope that we all agree with that general concept. The issue is whether the wording in the Bill achieves those ends.

Hon. Members have referred to the Government's authoritarian tendency, which worries me, although Conservative Governments also had such a tendency-

Mr. Wilshire: And Liberal Governments.

Norman Baker: The last Liberal Government in 1906 was a radical and forward-looking Administration, which introduced old-age pensions, top-rate tax, trade union rights-

Mr. Field: Licensing laws.

Norman Baker: Those, too. I am happy to concede that all Governments have a tendency to become more authoritarian. I do not understand why that happens, but it seems to be a natural occurrence. It is certainly happening in connection with this Bill. I hear plenty of voices clamouring to nail the criminal-there is nothing wrong with that-but I have not heard a single Government Member saying that we must ensure that injustice does not happen. I would be grateful to hear that from the Minister or some of his colleagues when they make their points in the round.

I am worried that the Bill may steamroller those people who are in receipt of the proceeds of crime, and stigmatise them in a way that may not be entirely justified. Yes, they are criminals, and they have proceeds of crime that should be seized, but that does not necessarily mean that all their property is the proceeds of crime. It will be difficult for a convicted criminal, who is probably a shady type and has proceeds of crime, to demonstrate that other property that he may have is not the proceeds of crime.

Mr. Ainsworth: He will not necessarily have to do that. He will have to present to the court evidence of legitimate income. How on earth can the hon. Gentleman say that we are not interested in whether serious injustice is done when that is exactly what the Bill says it wants to avoid?

Norman Baker: The Minister will recall that I asked why the adjective ``serious'' had to be used, instead of simply referring to a risk of injustice, but I never received an explanation. However, I will let that pass.

I do not know how the Minister organises his financial affairs, but I tend to work on the basis that I keep what may be required by the Inland Revenue. I have therefore kept records going back seven years. I do not know whether that is accurate, but I believe that seven years is the Inland Revenue's requirement. If the Bill becomes law this year, it will contain a provision that goes back a long way into the past, although, because of the current understanding, people will not have kept records for more than seven years. The Bill is therefore retrospective in expecting people to have records that they will not have had to keep until now.

Mr. Stinchcombe: The hon. Gentleman prefaced his remarks by saying that he wanted to confiscate property that was the proceeds of crime. Under the amendment, how could such property that was acquired more than six years ago be confiscated?

Norman Baker: I will come on to that, but I would be grateful if Labour Members would explain how they would avoid injustice and ensure that they do not confiscate property that is not the proceeds of crime. The Government need to address that point.

On Second Reading, I referred to the experience in the Republic of Ireland, where the Irish equivalent of the Assets Recovery Agency has great difficulty because of the offloading of the proceeds of crime. The proceeds of crime in Ireland tend to be lap dancing clubs, racehorses and other property of that kind. People are involved in activities such as gambling, and someone who has a criminal lifestyle-or, to suggest an alternative phrase to the Minister, someone who has a history of recurrent criminal behaviour-and who has received proceeds of crime and acted illegally, may also have legitimately placed a bet and won money on a horse. That is not beyond the bounds of possibility-it is sometimes difficult to beat the bookmaker, but it happens occasionally. How can one prove that many years later? It will be almost impossible.

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In relation to the balance of probabilities, which is the test under subsection (6)(a) to which the Minister referred, I do not have a problem with reversing the burden of proof when someone has been convicted. However, I do have a problem with asking people to prove something from the mists of time. It becomes more difficult for the state to prove, which is why the onus is put on the criminal. It is unfair for the criminal to have to prove his innocence in respect of property acquired back in the mists of time. Such a provision goes too far.

The point that I and other Opposition Members are making is: where does one draw the line? Someone who has a history of recurrent criminal behaviour may also have legitimate aspects to his behaviour. As the hon. Member for Surrey Heath said, someone may have turned to crime in the recent past-in the past six or seven years-but may have had made legitimate acquisitions before then. The Minister has said nothing to convince me that there is an acceptable method of differentiating.

Let us say, for example, that a criminal has been convicted of an offence, and his assets are to be seized. Some of those assets are clearly the proceeds of crime, but there is also a picture that the criminal claims is a family heirloom, and £15,000 that he says he won on Red Rum. Will the court, on the balance of probabilities-not on a ``plausible explanation'', as the hon. Member for Birmingham, Hall Green said earlier-believe a criminal who has committed offences, has proceeds of crime and is probably a shady character? Will it believe that he could have acquired something legitimately, perhaps by an implausible method like winning a lot of money on a horse? How will he prove that? He cannot. The Minister, who has a legitimate, understandable and laudable desire to nail criminals and seize the proceeds of crime, seems to be saying that, if, in the process, property is swept up that is not the proceeds of crime, that is a price worth paying.

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Prepared 22 November 2001