Proceeds of Crime Bill

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Mr. Grieve: I am grateful to the Minister for his comments. I hope that the debate has been useful. Discussing the matter has been worth while, as the debate is on the record, and the Government can refer to it when the rules are formulated.

The Minister's comments have substantially reassured me that we are not going down the road of using legislation to pursue individuals who do not warrant such treatment. If we were to go down that road, a taint of unfairness would rapidly creep into the proceedings, and public money would be wasted.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 pm

Mr. Grieve: I beg to move amendment No. 367, in page 145, line 16, at end add—

    '(3) Civil proceedings under this Part shall not be available if there has been an acquittal in criminal proceedings in relation to the same unlawful conduct alleged or relied on.'.

The Chairman: With this we may discuss amendment No. 356, in clause 248, page 146, line 7, at end insert

    ', save where there has been a previous positive finding in relation to a defence to confiscation proceedings pursuant to section 6 and there is no fresh evidence that was not available to the Director at the time of the previous proceedings.'.

In light of the extensive nature of the previous debate, and the content of amendments Nos. 367 and 356, I doubt whether it would be in order also to have a stand part debate.

Mr. Grieve: I will bear those comments in mind. I have no objection to that course of action. I think that, by the time the Committee has finished debating these amendments, we will have exhausted our deliberations on the clause.

The amendments raise important issues, but not identical ones. The issues are substantially different, and they must be examined separately—although it is right that the amendments are grouped together.

The amendments raise the question whether there should be a limitation on the power to initiate proceedings for civil recovery. Amendment No. 367 addresses that matter when a criminal prosecution has failed: amendment No. 356, which attaches to clause 248, addresses it when confiscation proceedings have failed—rather than merely the criminal proceedings attaching to a defendant.

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It is important to acknowledge that we are creating an unusual power. It is sometimes easy to view—or to lull other people into viewing—a civil recovery procedure as similar to the adversarial procedure, by which individuals bring claims against each other, or even by which a Department might bring a claim for a debt owing to it. However, it is an entirely different matter: in such civil proceedings, it is not necessarily the case that the state will be out of pocket—although I acknowledge that we will consider tax issues later—or that any individual will be a victim. The basis of the proceedings is the state's belief that an individual owns assets that were acquired by unspecified unlawful conduct, and that it is in the public interest that that individual should be deprived of them.

Committee members must bear that point in mind, because we must be careful, as there is a danger that the Assets Recovery Agency might be perceived as an organisation that is allowed to take a second bite at the cherry, after the ordinary proceedings that are usually brought against criminals have failed.

I am troubled by that as a concept, because it comes close to offending the double jeopardy rule. I accept that it can be argued that there is no double jeopardy, because one of the proceedings is civil and the other criminal. However, the hybrid nature of the proceedings brings us close to offending that rule. It is a well-established legal maxim that it is in the interests of the public that there should be finality. If the Assets Recovery Agency's civil proceedings process is a way of reopening proceedings that have been resolved earlier, to the public mind, there are serious matters that we must bear in mind.

I am mindful that the two amendments are very different. Amendment No. 367 would prevent civil proceedings from being brought if there had been an acquittal in criminal proceedings in relation to the same unlawful conduct alleged or relied on. The Committee should consider that. If I argue against the proposition that led me to table the amendment, I accept that there is a growing number of cases in which individuals have sought to succeed with civil proceedings where criminal proceedings failed. Obvious examples spring to mind, such as the acquitted murderer who is subsequently sued by the relatives of the deceased. In some instances, that procedure has been successful.

Comments were made in the past about the undesirability of revisiting matters in civil litigation that were apparently resolved in criminal litigation. One can remember the example of Dr. Bodkin Adams who was adept at recovering large sums in libel damages in the years that followed his acquittal for murder, which was partly because newspapers failed to appreciate that he was still alive. In his old age, he was able to issue writs, and in those days it would have been impossible for newspapers to reopen proceedings with libel actions, so they had to pay up.

Although I am mindful of the rule of finality, the Committee may consider arguments that suggest that civil recovery proceedings should be allowed against an acquitted criminal's assets. However, we should be careful when considering the nature of the civil

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recovery proceedings. They are more akin to a form of criminal or administrative state sanction than ordinary civil litigation that is brought between individuals who want redress. The matter is not about redress but about the confiscation or removal of assets that the state believes were unlawfully acquired without, necessarily, an identified victim—not even the state itself. We must be careful, which is why I ask the Committee to consider the amendment.

The arguments in favour of amendment No. 356 are more compelling, because we are considering not a previous acquittal for a criminal offence but the previous failure of confiscation proceedings that were brought in relation to the same assets. The Committee will know from our previous discussions that the way in which confiscation proceedings may be brought for general criminal conduct is enormously wide. It does not necessarily require the trigger of an offence with assets linked to that offence. The trigger provisions can be entered, and assumptions are raised, as are the matter of general criminal lifestyle and rebuttable assumptions.

A person could have previous convictions and have been taken through a failed confiscation process that was based on the criminal lifestyle assumptions. The Committee should consider the extent to which the odds would be stacked against a defendant who was taken through those proceedings. In such circumstances, should the Assets Recovery Agency be able to come back and have a second bite of the cherry with ordinary civil proceedings if no fresh evidence is available to the director?

I shall be asking for the two amendments to be taken separately. Amendment No. 356 raises important issues and I have yet to be persuaded by the Under-Secretary's argument against it, unlike amendment No. 367, about which I am open to easy persuasion that it is a proposal that we should discuss but not necessarily press to a Division.

The Government are in danger of setting up a draconian system that allows the director too much licence. Parliament must fetter his discretion and say that, when he or the prosecutor has brought confiscation proceedings and they have failed, unless there is fresh evidence, he cannot subsequently say, ''Sorry, we failed in that case. We had the wrong judge. It was a Crown court judge. He didn't know what he was doing. Let's go back to a High Court judge, who knows much more about it.'' I see the Under-Secretary smiling, because I am referring to the points that we discussed earlier. However, I fear that such a situation may come about.

In those circumstances, it would be wrong to use the civil proceedings recovery mechanism. Let us suppose that the state, the prosecutor or the director cannot get back the assets by the confiscation regime, but can then reopen it. The two systems will clearly be running in parallel and cannot be dissociated from each other, and that has a taint of serious unfairness about it. Will the Under-Secretary carefully consider amendment No. 356? There would be no real disadvantage in accepting it. There would not be many instances in which the director would be handicapped. If the case

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against such a defendant failed in confiscation proceedings, I dare say that it would be easy to find fresh evidence that is necessary to bring the application under the civil recovery route. I ask that the two amendments be taken separately. Although they are linked, different issues arise in respect of each of them.

Norman Baker rose—

The Chairman: Order. Before I call the hon. Gentleman to speak, I must say that amendment No. 356 can be voted on, but that will happen when we come to clause 248, to which it relates.

Norman Baker: Thank you, Mr. McWilliam. I concur with the comments of the hon. Member for Beaconsfield, who presented his case sensibly, without over-emotionalising it. Amendment No. 367 is important. There may be justification for civil proceedings to be pursued if criminal proceedings have failed. After all, it is a different test and different judgments will have to be made when particular actions are taken. I am not sure, however, that the hon. Gentleman's analogy stands up. For example, it is possible for someone to be charged with murder but acquitted, when a charge of manslaughter or other lesser charge might have stuck. That is the difference. There is more of a similarity between the essence of criminal and civil proceedings in that case than there would be in the example cited by the hon. Member for Beaconsfield. That is why I am slightly uncomfortable with what is in the Bill.

Like the hon. Member for Beaconsfield, I am open to persuasion, but a person could be seen by the public—or be misinterpreted or portrayed wrongly in a newspaper—as someone who had been cleared of an offence, but who was then pursued for the same offence by the back door. The provision is open to such an interpretation, so the Government must be aware of that and have a ready response to that charge when it is made as a result of such proceedings, as I am sure it will be at some point.

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