|Proceeds of Crime Bill
The Chairman: I remind hon. Members that we have had a full and wide debate on the clause, and I do not intend to let the debate drift into the same repetition that we have witnessed over the past hour or so.
Mr. Wilshire: I shall do my best to follow your ruling exactly, Mr. O'Brien, because I believe that other issues are involved.
In case the hon. Member for Glasgow, Pollok (Mr. Davidson) wants to intervene or make a speech to say that this is another example of hon. Members making speeches for the sake of it, I should point out that guillotine motions are unilaterally imposed by his party, and we do not encourage, support or agree with them. Just because the Labour party announces that in its opinion there is enough time to do certain things by 7 o'clock tonight does not make it a God-given statement. Again, there will be no apologies from this side for doing a proper job when the Government want to do a rush job in the hope that they will not be scrutinised by Parliament as properly as we believe that they should be. I thought that I would get that in to save the hon. Gentleman having to make the speech that I suspect that he will make. In any event, the more speeches that he makes, the more he will waste the time of Opposition Members who want to make valid points.
When I read clause 20, I wondered—again, as a layman—why it was needed. During our debate, it was made clear that that it would not be possible to proceed under clause 6 because it covers different circumstances. I think that I understand that argument, but it may become clear that I do not. I remain to be persuaded whether the clause is necessary. It also raises the issue of double jeopardy. I expect that a lawyer will tell me that I have misunderstood the meaning of that, but the clause will put a person at risk of further penalty in a way that is not normal or acceptable under English law. If the procedure has been gone through and someone has been convicted and their assets have been investigated, that should be the end of it, yet under the clause, notwithstanding the justice that has been meted out to the criminal, there will be another investigation. Will the Minister reassure me that such action is not beyond what is reasonable in a country that believes in the rule of law?
The provision could put a person in an invidious position. Let us suppose that someone is convicted of more than one offence, and thinks to himself that one of the convictions is fair, but that the other is not. If he appeals against that conviction, re-opens the case and says, ``I am guilty of other things'', his ability to mount a proper appeal against the conviction when he considered an injustice had been done could be hampered by the provisions of the clause being brought into play. If he opens his mouth to launch an appeal, he will automatically open a trapdoor for matters outside the original case. That could make it more difficult to achieve justice.
A previous issue comes to mind that we were told was irrelevant. We argued that, if we went back beyond six years, the onus of proof should switch back to the Crown and away from the defendant or the convicted criminal. We were told that a six-year rule was unreasonable, so I was surprised to find a reference to it under subsection (1)(c). Having been told previously that that rule was not appropriate, why has it been introduced in the clause? The position needs clarifying.
Subsection (4)(c) refers to property that has been obtained as a result of or in connection with the conduct that was the subject of the original proceedings. That takes me back to our argument about the six-year rule. I am talking about the introduction of property that was not part of the original proceedings, but related to something that had happened subsequently. If someone had now to demonstrate that the property had been acquired subsequently by proper means, without the safeguard of the six-year rule for which we were arguing, he would be placed in an invidious position.
My view remains the same, despite the Minister's response to the previous debate: if one looked back more than six years, a person would have only a slim chance of being able to prove beyond doubt that they had used assets that were acquired legitimately to buy property. However, they would lose out if they could not prove it.
I offer another example: a convicted criminal might have attained a property a long time—20 years, for instance—after they had acquired the money to purchase it, and they might be asked to prove that it had been acquired legitimately. I do not wish to lean over backwards to help convicted criminals, but it seems to me that it might be difficult for justice to be achieved in such circumstances.
I wish to raise another issue—and I hope that it will reassure anyone who might be tempted to think that I am trying to be soft on criminals that that is not the case. I want to know what subsection (7) means. As a non-lawyer, I understand it to mean that when a court decides what to do with somebody, it will take into account other fines, forfeitures or penalties—or whatever the right term might be—before making an order. If that is the case, the provision is being lenient on the criminals. I hope that that redresses the balance with regard to some of the other things that I say.
I also hope that the Minister will tell me that my interpretation of subsection (7) is wrong, as it seems to me that we are being asked to agree to something that says, ``In theory, this is what should be confiscated from you, but because you have outstanding fines and debts, we will reduce the amount that we are seeking to take from you.'' If that is what that subsection means, it is wrong. A court should say, ``In our judgment, taking into account all the facts of the crimes, and the circumstances, and what you have told us, this is what you owe, and you will pay it, please''—and if the person cannot pay it, they are made bankrupt, and if they become wealthy enough to pay it, they are made to pay it. However, if subsection (7) is saying, ``We will reduce the amount if you are in financial difficulty,'' I will be opposed to the clause.
Mr. Davidson: I wish to follow up a couple of the points that were made by the hon. Member for Spelthorne—and, in particular, the earlier strictures that he laid upon me, which seemed to me to be a load of Molochs.
The guillotine was agreed; that was the unanimous decision of the Programming Sub-Committee, which—according to my understanding of the word ``unanimous''—means that it was accepted by Conservative hon. Members.
Mr. Wilshire: As I have explained, I was not present at the meeting of the Programming Sub-Committee, as I was attending my mother's funeral. Therefore, the decision could not have been unanimous, and had I been present, I would have made my views crystal clear.
The Chairman: I do not know what the hon. Member for Glasgow, Pollok said, but I hope that it was not unparliamentary.
Mr. Davidson: It certainly was not; if it were, I would not have said it.
My remarks will be minimalist, although they address important matters. I ask the Minister to clarify the reference in subsection (1)(c) to
I am concerned that it might mean that if someone who has managed to conceal their assets is caught and jailed for 20 years, for example, but released after 10 years, they could bring their assets in from abroad, or dig them up from the ground, and start spending, and, if the six-year period has been surpassed, the court would not be able to pursue them. I acknowledge that that would apply, in particular, to circumstances in which the court has decided not to proceed, but it might have made that decision because there was no visible sign of any assets, and therefore, it might have been entirely misled into believing that the person had no assets. However, if it subsequently discovers—even after more than six years—that there were gains from crime that had successfully been concealed, it would be contrary to the spirit of the legislation if the court, and the system, were not also able to attempt to seize them.
Mr. Boris Johnson: It occurs to me as a complete non-lawyer that apart from the question of the potential oppressiveness for the miscreant, in so far as his property may or may not have been innocently acquired, and the delay of six years in reconsidering his case, the clause also creates a risk that undermines the very purpose of the Bill as endlessly set out by Labour Members. If we give the director, the Assets Recovery Agency and everyone else six years after conviction to get hold of the proceeds of crime, we incite them to a lack of care, thoroughness and energy at the outset of the procedure.
Mr. McCabe: The hon. Gentleman may have missed the point. Is not the purpose of clause 20 that the case should be reconsidered when new evidence came to light, and not because the director or prosecutor had evidence, and had claim to use it, at the time of conviction?
Mr. Johnson: None the less, the effect will be to allow the director and the Assets Recovery Agency to hang fire in the hope that new evidence will come to light. I am not convinced that the six-year period will encourage them to be as dynamic as they might otherwise be. I am sure that Labour Members, who will want to recover every penny that they possibly can, will want to close that loophole.
Mr. Stinchcombe: The hon. Member for Spelthorne may have raised a good point after all these sittings. It relates to subsection (7)(b) and the requirement that we subtract from the just or available amount those sums which have been, or are due to be, paid as fines. Does not that amount to allowing the defendant to pay his fines out of the proceeds of crime?
Mr. Grieve: One matter that arises from the discussion has not been touched on. Is it envisaged that an application for reconsideration of a case can take place on only one occasion, or could it take place many times, whenever further information comes to light? I am not aware of any multiple considerations that have taken place in the past, although perhaps they have. That raises the issue of finality in proceedings.
In our discussions, we have acted on the principle that reconsideration would be a one-off event that would take place when new information came to light, but I foresee circumstances in which there might be more than one reconsideration. Does the Minister think that that is desirable, and has it ever happened? Does he think that some limitation should be introduced? It is desirable that confiscation should take place if new information comes to light but, as we sometimes argue in other contexts in the House, it is also desirable that there should be an end to legal proceedings.
Someone may spend the six years after a confiscation being dragged through multiple reconsiderations of benefit. Some might say that that would be due to a failure by the prosecutor or director to get their act together in the first place. I flag that up, and would be interested to hear the Minister's comments.
|©Parliamentary copyright 2001||Prepared 27 November 2001|