Proceeds of Crime Bill

[back to previous text]

The Chairman: Order. That was a lengthy intervention.

Mr. Ainsworth: Let me try to reassure my hon. Friend and the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke). The hon. Lady asked me whether the prosecutor must disclose all the information or is allowed to hide it from the court, and my hon. Friend suggested that there might be a problem. Clause 17(3) requires the director to reveal any information that is relevant to deciding the issues.

The director or prosecutor must make the case in the statement. All the relevant information must be revealed to the court. The court must be told if the director or prosecutor believes that any information, which must be laid before the court, suggests that there is a serious risk of injustice. The defendant may then put his case against the statement. The court will decide whether there is a serious risk of injustice based on evidence from the prosecutor or director and the defendant.

I do not know what changing the words would mean. The director or prosecutor might have effectively to label the information for whether any risk is present, rather than making a statement of facts. The statement should be factual and complete. The director or prosecutor is not permitted to withhold relevant information, and must flag up anything that would trigger a serious risk of injustice. If we suggest that the prosecutor or director must go further than that before the defendant has put his case, we get close to returning to the argument of reversing the burden of proof back to the prosecutor, which we do not want to do. For reasons that I have stated, the current wording is adequate. The prosecutor must reveal all relevant information, and if he believes from such evidence that the serious risk of injustice provisions in the assumptions would be triggered, he must flag that up. The defendant then gets the opportunity to put his case by rebutting the statement that has been made. I do not see any huge inadequacies in that, and I ask the hon. Gentleman to withdraw the amendment.

4.15 pm

Norman Baker: I am concerned by the Minister's response, as I am genuinely worried by the inclusion of the word ``serious''—and that opinion is shared by other Committee members. The Minister's notes come from his officials, and it is their business to defend the Bill in its present form. However, this is a serious matter, and I ask him to think about it.

It is unfair to compare clause 11 with clause 17. They share the same form of words, which is

    ``a serious risk of injustice'',

but the circumstances are different. In clause 11, the court must decide, on the evidence brought before it: it is for the court to judge whether there is a serious risk of injustice. The court is a neutral body between the prosecuting authorities and the defendant. The purpose of the court is to assess the arguments and to take matters forward.

However, subsection (4) is not about the court: it is about a partisan body—the prosecuting authorities—making a judgment. Evidence that the court might wish to have, and that might be helpful to the defendant, could be withheld.

Ian Lucas: Subsection (4)(a) suggests that all the information that the director believes is relevant must be disclosed. Given that, I am puzzled about why subsection (4)(b) is necessary. All relevant information must, almost by definition, include any information that is relevant to a risk of injustice, whether or not that is serious.

Norman Baker: I do not see it that way. The prosecutor's function is to secure a successful outcome. Subsection (4)(a) refers to the assumptions, which are intended to help secure that outcome.

The Minister cited subsection (3) in defence of the status quo—to use a Latin phrase, for the benefit of the hon. Member for Glasgow, Pollok.

Mr. Davidson: What does it mean?

Norman Baker: It is a pop group.

One might interpret subsection (3) to mean that the prosecutor must disclose everything. However, it could also be interpreted to mean that the prosecutor should disclose everything that justifies the position that he has concluded—in respect of the defendant having a criminal lifestyle, for example—and that it does not necessarily oblige him to disclose matters that may lead him to reach an alternative conclusion. I am not convinced that subsection (3), or the point made by the hon. Member for Wrexham, would require the prosecutor to put that case fairly. After all, it is not his job to do that. If it is his job to put a balanced case that sets out the pros and cons, why is subsection (4)(b) necessary—especially as subsection (4)(a) is all-encompassing? The assumption is that subsection (4)(b) is necessary because a further test is put on the prosecutor: having reviewed the matter, he must ask whether there is a risk with regard to material that is not being disclosed. Ought the court to be made aware of that in reaching its conclusions? That is how I read the matter.

If that is correct, we return to the matter of serious risk. With regard to subsection (4)(b), my initial point—and the hon. Members for Beaconsfield and for Surrey Heath also referred to it—was, if the word ``serious'' is allowed to stand unqualified and unamended, does that mean that the prosecutor could come up with material that, in his mind, could lead to a suggestion that a risk of injustice is possible? The test that he has to follow is that of a serious risk of injustice. Therefore, he may conclude that that information does not have to be submitted as part of the statement that he gives to the court.

Ian Lucas: Would not that information be relevant in connection with applying the assumptions under clause 11? It does not refer to the prosecutor establishing his case on the assumptions; it refers to applying the assumptions. That information must be relevant.

Norman Baker: Of course it is relevant. That is why I want it included as information to which the court has access. However, I am not clear about whether the prosecutor regards it as relevant to include material that is detrimental to his case in the material that he submits to the court. For example, there may be evidence to suggest that a person has a general criminal lifestyle, but there may also be other material that would suggest otherwise, which therefore may not necessarily be included. My point is made in the interests of justice. A partisan body—the prosecutor—is being given an opt-out that allows it not to bring to the court information that may indicate a risk of injustice, albeit not a serious one. If the risk of injustice is low, and the prosecutor nevertheless makes it plain, the court will conclude that the risk is low and no harm will be done to the prosecution's case. If, however, material is held by the prosecutor that is not passed on to the court, and it subsequently transpires that that information should have been revealed, that is a difficult situation, which involves miscarriage of justice. That is all that I am saying. I plead with the Minister to look at the matter again, because his response does not cover the situation that I have described. It poses a risk of miscarriage of justice.

Mr. Davidson: I have listened with enormous interest to the hon. Gentleman, or as much enormous interest as I have been able to muster. Will he clarify the relationship of Status Quo to this matter? I am conscious that they released a record called ``Down, Down'', and some of the things that they did were criminal, but he has completely failed to convince me of their relevance.

Norman Baker: They also made a record called ``Pictures of Matchstick Men'', which is what I think about when I am subject to that kind of intervention. I am making a serious point about the clause.

Mr. Ainsworth: Can I try to elicit from the hon. Gentleman where the risk lies? The prosecutor's statement dictates whether he is making the allegation that a person has a criminal lifestyle; the offences that have been committed by the defendant to brand him in that way; and the results of the financial investigation that he has undergone to identify the property that is available for confiscation as the proceeds of crime. The purpose of putting the statement before the court is to allow the defendant and the court to consider it. The defendant is given the opportunity to say, ``That is not true.'' Where does the risk of injustice, about which the hon. Gentleman is so worried, arise?

Norman Baker: The risk of injustice arises, as it would in any court proceeding, when the prosecution has evidence that it does not share with the defence. That is the point. It is all very well saying that the defendant has a right to make his case, but what if the prosecution finds evidence that is helpful to the defendant, of which the defendant is not aware? Should that not be available to the court? I think that it should. If there is a serious risk of injustice, that is different from a risk of injustice. The Minister has not covered that point, nor has he explained the pertinent intervention from the hon. Member for Wrexham, who effectively said, ``If everything is hunky-dory and dandy, there is no problem and it is an open statement, why is subsection (4)(b) necessary?'' It is necessary because the Bill's draftsmen themselves recognise that there is a problem that needs to be covered by a safeguard. I share that view, but the safeguard is at the wrong point. I hope that the Minister will respond further, because it is a serious issue.

Mr. Ainsworth: If the prosecutor has evidence, he must disclose that under subsection (3). The prosecutor is required to disclose the findings of his investigations to the court. He cannot discover information and hide that from the court. However, the statement is there to make his case. If we accept that the proof of serious risk of injustice, which is judged by the courts, is required to discount the other provisions in the Bill, we want the prosecutor to flag up the fact that the trigger has been reached in the statement that he takes to the courts. The defendant receives a copy of the statement, and he must make his own case. The court must decide whether that case is made.

The hon. Gentleman asked why the drafters included the serious risk provision in the clause. I do not know whether I made myself clear. The current legislation does not require the prosecutor to do that. However, that is the way in which the confiscation proceedings have worked. I am told that when prosecutors have discovered a serious risk during their investigations, which would trigger the protection through this legislation, they have disclosed that. We are putting such good practice in the Bill to ensure that it continues.

The amendment is unnecessary. It is not the normal way in which such things are, or should be, dealt with. The defendant can rebut the statement. The court will decide following the prosecutor's statement and the defendant's rebuttal.

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