Proceeds of Crime Bill

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Mr. Hawkins: I agree with the hon. Gentleman. Although the amendment is not one of those to which my hon. Friend the Member for Beaconsfield, myself and other colleagues have subscribed, it was a proposal that my hon. Friend and I were thinking about. We were glad that the hon. Gentleman tabled it because we knew that we would have an opportunity to debate it. He has put his case in a sensible and moderate way. As he said, this occasion is slightly different from the other times when we have debated the word ``serious'' and it has given the Minister the opportunity to think afresh about such matters.

I hope that we may receive the expert opinion of my hon. Friend the Member for Henley (Mr. Johnson) who has already been identified—even by Labour Members—as the expert wordsmith on the Committee. Speaking as a mere lawyer, I know that there is a difference in the law when deciding between ``risk'' and ``serious risk''. It is a significant difference and that is why I support the amendment.

Mr. Grieve: The amendment is spot on. Let us suppose that we reworded the clause so that it read:

    ``must, if the prosecutor or Director believes there would be a slight risk of injustice''.

Even a ``slight risk of injustice'' is a matter that should be brought to the notice of the court. The term ``risk of injustice'' does not need further definition. I hazard a guess that the use of the word ``serious'' is the retrotting out of an accepted formula. When scrutinised, it would become fairly clear that it does not add up to much. If there were a risk of injustice, I would not expect a fair prosecutor to withhold information relating to it. The question of the seriousness of the risk is a matter for the evaluation of the court when the information has been imparted.

In the circumstances, subject to his officials' guidelines about the use of ``serious'' in other legislation, I hope that the Minister will accept the amendment. It would not diminish the force of the clause. We do not want the situation that we have had with public interest immunity issues, for example, in which one discovers that some information should have been made available to the court that might have coloured its decision. Once we start going down that road, the whole system will be brought into disrepute. Given my time as a prosecutor, I am a great believer in putting the cards on the table, unless there is a compelling argument for not doing so. In my experience, there hardly ever is.

Mr. Hawkins: As my hon. Friend is rightly setting out, and as any member of the Bar or anyone who has been a solicitor-advocate knows, if one is prosecuting, one has a duty towards the court to bring all relevant concerns before it. There have been several serious cases in which, in the end, the prosecution had to say to the judge that things had gone so badly wrong that they could not, in their duty of prosecuting on behalf of the Crown, allow matters to go forward. Because that is a duty of the prosecution, it should certainly be brought to the attention of the court, even if, in the context of this Bill, there is only a slight risk of injustice.

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Mr. Grieve: My hon. Friend is right. Those of us who have been in practice—I am sure that this applies to Government Members who have been involved in such cases—know that it is more than occasional, or it certainly was before the rules were changed, for information withheld to be regretted subsequently by the prosecution, when it turns out to have been irrelevant, even when they thought, ``Oh well, it is there, but it is not serious or relevant enough.'' It is much better that it should be up front. In those circumstances, if the director has information that he should bring to the court, as it might cause a risk of injustice if he does not, he should do so.

Mr. Davidson: I am concerned about the disclosure of names and addresses of witnesses. Would it be more likely under the amendment that the names and addresses of witnesses who had provided information confidentially would be disclosed? I would be hostile to that.

Mr. Grieve: No. One of the classic areas of public interest immunity is protecting the identity of informants. The amendment is not intended to alter that in any way, and would not do so. It would, however, make it clear that once there is information that might cause a risk of injustice if the court is not able to take it into account in making assumptions, it must be communicated to the court. Otherwise, the director will be able to make his own value judgment on the necessity of disclosure, which is a mistake.

Furthermore, I cannot see the problem from the director's point of view. If the reasoning is that it is a public interest immunity matter, the ordinary public interest immunity rules would operate, which would protect the informer but still require the director, at a crunch point, to decide whether he wanted to continue the proceedings or disclose the information. However, it is not acceptable for directors or prosecutors to hide behind their own assessment of the seriousness of the risk of injustice. That should be decided by the court, which has to make the determination of the assumption.

Mr. Boris Johnson: I feel obliged to intervene under the knout of my hon. Friend. The adjective should be struck out because it is wholly otiose. It is easy to see why. The seriousness or otherwise of the risk bears no relation whatever to the scale of the injustice that might eventuate. A trivial risk of injustice might produce a great injustice and vice versa. That is why it is immaterial to the clause. I support the amendment and believe that the word ``serious'' should be whacked out.

Mr. Grieve: I thank my hon. Friend. I am faced with a phalangeal range of views on this issue. I hope that I noticed correctly one or two Labour Members who appeared to be nodding in agreement with some of the points that have been made. I hope that the Minister will reconsider the matter. It will in no way damage the thrust of the Bill.

Mr. Ainsworth: There appears to be broad attack on this wording: it should be not only removed but whacked out. We will have to try to give it serious consideration.

The amendment would require the director and the prosecutor to include in their statement information relating to any risk of injustice that would arise as a result of the assumptions being made. Assuming that the test of serious risk of injustice was maintained in relation to the assumptions, the amendment would mean that the court would need to decide whether the risk that had been identified by the director or the prosecutor amounted to a serious risk. I am aware that the hon. Member for Lewes is opposed also to the words ``serious risk'', so I am not dead sure about the thrust of his argument.

The present legislation requires that there must be a serious risk of injustice if assumptions are not to be made. That test is re-enacted in clause 11. Clause 17 is designed to ensure that the director or the prosecutor brings attention in his statement to any information that is relevant to the matter. It has been argued before in Committee that we believe that the test of a serious risk, included under clause 11(6)(b), is pitched at the right level. If the hon. Member for Lewes or other members of the Committee think that it should be lowered, we must disagree. It is pitched at the right level and provides adequate safeguards. As has been said before, we are not intent on changing our position.

It is right that, when furnishing information to the court in a case when assumptions are likely to be made, the director or the prosecutor should have to provide information that would show that there would be serious risk of injustice if such assumptions were made. That goes hand in hand with clause 11. However, a requirement on the director or the prosecutor to produce information relating to any possible risk of justice is not necessary. There must be some risk at that stage in the proceedings and, by that stage, I mean the statement of the director or the prosecutor.

Mrs. Annette L. Brooke (Mid-Dorset and North Poole): Is the Minister suggesting that it is appropriate that the director may withhold information under certain circumstances?

Mr. Ainsworth: The hon. Lady must consider what the director is doing at that stage in the proceedings. He is making a statement to the court about whether the defendant has a criminal lifestyle and whether he has benefited from general criminal conduct. He must also provide details of the benefit from that conduct, including any relevant information. He must identify whether during his investigations he found out anything that poses a serious risk of injustice.

The purpose of that statement is to present the situation to the court so that the defendant can know what is being said and can be able to rebut it. It is not a replication of the position under the current legislation. We are bringing into legislation what has been the practice over time. We are requiring the director to include in his statement whether there is any risk—and there must be a risk in the information in the statement at that stage because the point in the proceedings at which the defendant's own evidence has been considered or even tabled has not been reached—so the court needs to know whether the director or prosecutor, when gathering financial information for the purpose of the statement, identified material that clearly showed that there would be an injustice should any assumptions be made about the case.

Stephen Hesford (Wirral, West): I say this in a friendly way. I am worried. The matter is not as complete a vacuum as my hon. Friend might think. During the investigation, there will be many opportunities to interview a suspect under caution about the matters, and much of the content of the director's statement will come from such interviews. There will be a substantial steer during the investigation towards what the defendant may or may not say about property that has been seized. If a word must precede ``risk'', might it be ``real''?

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