|Proceeds of Crime Bill
Mr. Hawkins: We shall no doubt debate in detail the civil recovery procedure when we reach part 5. As drafted, part of the conditions precedent and the trigger of subsection (2)(c) is that the person should have absconded for two years before such a procedure can start. Is not the great likelihood that the part 5 procedure will be much preferable in such circumstances when there has not been a criminal conviction, because the authorities can go through the part 5 civil recovery procedure? Unless I have misunderstood matters, they do not have to wait for two years. There is no delay mechanism. The Government have inserted the safeguard of a two-year delay procedure under subsection (2)(c). I am sure that all members of the Committee will understand why we want to hit the Mr. Bigs, but will they not be hit by the civil recovery procedure if they have absconded because that would be preferable to waiting for two years?
Mr. Ainsworth: That may well be the position. I accept the point that the legislation applies only to drug traffickers. By way of information, a confiscation order has never been proceeded with in absentia against an absconder in England and Wales. I am not sure of the position in Scotland, but it is not something that is entered into lightly.
Mr. Hawkins: Is such a provision on the statute book?
Mr. Ainsworth: Yes.
Mr. Carmichael: Does that not suggest that it would be more appropriate to proceed under the provisions in part 5?
Mr. Ainsworth: As I have said, there could be such circumstances. I am asking the Committee to consider whether we should review that ability. Part 5 is intended for use only when, for various reasons, a person cannot be pursued through the criminal courts. Part 2 is meant to be the appropriate and main method of confiscation. When anyone is pursued under criminal procedures, the defendant has probably been charged and we have restrained the goods, although that is not done on every occasion, after which time he absconds. Do we want to remove that ability from the legislation and render it not possible to confiscate the proceeds in such circumstances?
Mr. Grieve: The Minister has gone some way towards answering his own question. I am grateful to him, because he has been willing to share his understanding of the difficulty. He said that, as far as he is aware, the power has never been used. That highlights its unusual nature in relation to someone who has not been convicted. I understand why it existed in the past, but we are introducing a part 5 recovery procedure, which we all support in principle, yet we are retaining a procedure that has been shown, by its non-use, to pose uncertainties, problems and probably some anxieties about its potential unfairness and the problems that could flow from it. Is that not a compelling reason why we should hesitate about retaining it when an alternative is available? After all, if the goods are under restraint, they will not disappear while the civil proceedings are brought into play.
Mr. Ainsworth: Let me say that I am worried about one aspect of removing it, about which I am not sure that the hon. Gentleman has thought. Despite the fact that part 5 may be available, the defendant may know his circumstances, and, in all probability, knows them far better than anyone else. He may know the potential for civil recovery, and he may have sufficient legal advice to give him an idea of the potential for that to be successful compared with a process of criminal confiscation that has already been started. If we remove the provision from the legislation, might we not be encouraging people to abscond? I ask the hon. Gentleman to reflect on that. It may not have been used, but as I heard my hon. Friend the Member for Redcar say from a sedentary position, that may be because people have not managed to abscond or stay away for a period of two years. Removing the provision from the legislation has potential consequences. It is not a provision that should be used lightly, but the hon. Gentleman should reflect that, in certain circumstances or with certain advice, it may be not be as practical to pursue the proceeds of crime when confiscation proceedings have already been started under part 5. By removing the provision in its entirety, we may give people an incentive to abscond in order to keep their ill-gotten gains.
Mr. Hawkins: I am listening carefully to the Minister, and I understand his argument. At the same as time as we are considering his points, will he consider with his officials whether, if a provision such as clause 29 remains part of the legislation, it may be appropriate, given the existence of fresh provisions and the extension of the whole regime, to delete the reference to clause 11 in clause 29(5)(d). That relates to the point made by my hon. Friend the Member for Beaconsfield, which I re-emphasised. The Minister has conceded that it is an extended regime, and we need to think about that. Including it in clause 29, which relates to circumstances in which the defendant has not been convicted, is different from including it in clause 28.
Mr. Ainsworth: The hon. Gentleman has misunderstood. If we removed the reference to clause 11, we would also be allowing the assumptions procedure to be used when the defendant had absconded. With regard to clause 28 as well as clause 29, many Committee members, with the exception of my hon. Friend the Member for Glasgow, Pollok, believe that the legislation is tough. We are not proposing to use the assumptions procedure in absentia to mount a confiscation order against an individual's general proceeds when he is not there to rebut the case. I do not think that the hon. Member for Surrey Heath wants me to do what he is suggesting, which could bring the assumptions back into the proceedings in absentia. The assumptions should be used only in the particular criminal case in the court at the time that the defendant absconded, and not in general cases.
Mr. Carmichael: I guess that defendants do not abscond because it is close to conviction and they do not have the option open to them—they are in a situation of restricted liberty. If the provisions of part 5 were in place, it would come to the same end for the defendants. I do not see why they would be encouraged to abscond if that gave rise to civil rather than criminal recovery. A further merit is that there is a certain neatness and cleanness in leaving the criminal proceedings in limbo and untainted by the recovery procedure, which could be done separately under the civil procedures in part 5.
Mr. Ainsworth: I accept that there would be a certain neatness. Equally, the hon. Gentleman must accept that I am not satisfied that using part 5 would be as effective in all circumstances. As he rightly pointed out, we are talking about circumstances in which the defendant has either broken out of custody or is in complete breach of bail. In most cases, we are talking about the former. It would be a retrograde step to remove from the legislation the provision to continue to hold property that has already been restrained after someone has broken out of custody. It could weaken the provisions that we already have for drug offenders, although I accept that we are widening the legislation.
I accept that that is an important issue, but for the reasons that I have mentioned, I urge the Committee to accept clause 29 and maintain the provision in the legislation.
Question put and agreed to.
Clause 29 ordered to stand part of the Bill.
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