Proceeds of Crime Bill

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Norman Baker: I did not indicate that I wished to intervene, but I was thinking about it, so the Minister is obviously telepathic.

The Minister rightly makes the case that there are occasions when civil proceedings need to flow after an acquittal. I understand and accept that. Will he accept that there may be circumstances, which we cannot necessarily predict, in which civil proceedings should not follow an acquittal? The concept of never saying never works both ways. Will he consider further the helpful suggestions of the hon. Member for Redcar, which are not inconsistent with the Bill? If he examines clause 2(5), he will notice that there are already provisions for guidance from the Secretary of State. We want proper guidance to be given to enable a decision to be taken about whether civil proceedings are appropriate, because sometimes, such proceedings may not be appropriate.

Mr. Ainsworth: I do not think that there is anything substantial between us—I certainly hope that there is not. On both sides of the argument, we are grappling to look for circumstances that may never arise. We found an example that I put to the Committee in which property would not be confiscated under part 2, although we should not rule out an attack aimed at confiscating it under part 5. In practice, the hon. Gentleman knows that we want the whole of the

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proceeds of crime operation to work within the guidance that we shall set. Therefore, criminal confiscation should be the first call on every occasion. Only after those proceedings have been exhausted should civil recovery even be considered. All I am saying to the Committee is that we should not absolutely bar the director from giving consideration when it is clear that property is not confiscatable under part 2. Although the individual may be found innocent of the crime for which he has been pursued, we should not say, as amendment No. 367 does, that in no circumstances could the director consider civil recovery.

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Mr. Grieve: I am sorry to press the Minister, because this may be a difficult matter with which to deal. A moment ago, he talked about the distinction between a person in respect of whom no confiscation goes ahead because the vehicle was not his, nor was it a tainted gift to him. That must come within the same category. Yet he suggests that, under the provisions covering property obtained by unlawful conduct, the director would be entitled to invoke a wider test.

My mind went to clause 247, which we have not considered, under which property obtained through unlawful conduct is defined. A definition is provided in the notes on clauses, but it is difficult to extrapolate one from the clause itself. I read nothing in the notes on clause 247 to suggest that the definition of property obtained by unlawful conduct could have a wider meaning than that of a tainted gift.

Mr. Ainsworth: There are different proceedings and different circumstances. It will not always be the case that property is a tainted gift. The car may belong to someone and it may not be possible to show that it was a benefit of crime under the part 2 regulations, yet the director may consider that under civil recovery proceedings, he can show that the car was the proceeds of crime. As the hon. Gentleman knows, the Secretary of State can issue guidance to the director. We should not rule that out absolutely. If we did, we could put ourselves in the embarrassing position, if a glaring opportunity arose for the civil recovery of the proceeds of crime, of having prevented it from being pursued.

Norman Baker: I accept all that the Under-Secretary has said, but does he agree that after a prosecution has failed, it may not be appropriate to pursue civil proceedings? Will he issue a code of conduct or a guidance note that says to the director of the Assets Recovery Agency when it may not be appropriate to pursue civil proceedings?

Mr. Ainsworth: I do not disagree with the hon. Gentleman. There will be many circumstances in which it is not appropriate to use civil recovery proceedings. I do not know whether it is necessary to lay that down in guidance at this point in the Bill, or whether we can allow the director discretion. A judgment will have to be made at the time. We consider that the measure is targeted. It will be aimed at the top end of criminality, where there are substantial proceeds of crime to be confiscated. No evidence or

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intelligence suggests that there will not be many circumstances that will keep the director and the agency busy. Such cases will be complicated, so there will not be hundreds of them. It will take time and expertise to put them together. As the hon. Gentleman asks me to accept that there will be cases such as he describes, will he accept that on the odd occasion—they may be few and rare—it may be appropriate for the director to take such action, and that we should not prevent him from doing so?

Mr. Grieve: It has been an interesting debate, and I am grateful for the Minister's comments on both amendments. As I said at the outset, I believe that the issues arising on each are rather different.

Amendment No. 367 relates to an anxiety about unfairness, which was highlighted by the hon. Members for Redcar and for Lewes. I urge the Minister to consider giving an early assurance about a code of conduct being in force for circumstances in which a civil procedure might be used following an acquittal. I am worried about that, but as I said earlier, I can also envisage legitimate circumstances in which that discretion should continue to be with the director to allow him to bring civil proceedings.

Several comments have been made on the matter, and indeed I argued against myself in presenting my case, as I appreciated that there was an alternative way of considering it. However, I believe that some early reassurance would be helpful, especially if we are not to have to revisit the matter on Report. I accept that it may be difficult to tailor an amendment that does justice to the particular circumstances with which we are trying to deal, but if the Minister would consider providing that assurance, the Committee would be greatly helped, and the Bill could be improved.

I realise that we shall not vote immediately on amendment No. 356, but having listened to the Minister, I feel that I am likely to press it to a vote. The more I listened to him—I hope that he will forgive my saying this—the more worried I was about what we were setting up under the civil recovery procedure.

We shall have an opportunity to consider the matter further when we debate clause 247 stand part. I tabled no amendments to clause 247, because having read it I reached a conclusion about what property obtained through unlawful conduct amounted to. It did not tally with the Minister's interesting example in trying to differentiate civil recovery proceedings in respect of such property from confiscation proceedings. I appreciate that it is difficult sometimes, but I take his example and throw it back at him.

The Minister suggested that there might be circumstances in which a convicted defendant is taken through the confiscation proceedings but it cannot be shown that the motor vehicle in his possession, which belongs to him, is a tainted gift, his property or something that can be latched on to as a benefit. However, if I have understood him correctly, he takes the view that in such circumstances it would still be possible for the director, under civil recovery

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proceedings, to claim that the property was obtained through unlawful conduct and can be seized from the defendant.

In the explanatory notes to clause 247, property obtained through unlawful conduct is defined:

    ''A person will obtain property through unlawful conduct if he obtains it:

    — by the conduct—for example by stealing it, or by obtaining it by means of dealing in illicit drugs, or

    — in return for the conduct—for example by being paid to commit murder or arson, or taking a bribe to give false evidence or corruptly award a contract.''

Reading those two passages in the explanatory notes, I am at a loss to understand how such property could have slipped through the confiscation proceedings with regard to benefit from general criminal conduct. I see that a note is winging its way to the Minister, so I look forward to being corrected on my assumptions. Either I have misunderstood clause 247 and what constitutes unlawful conduct, in which case I am worried, or I have not misunderstood, in which case the Minister's example was not a good one. I cannot even think of an example whereby a failure of the confiscation proceedings with regard to general criminal conduct could possibly lead to a civil recovery in relation to the same assets. The only example that I can think of is when there is a failed attempt to recover certain assets for particular criminal conduct, but there are nevertheless other assets that could be recovered under civil recovery.

Mr. Ainsworth: The hon. Gentleman is very good at thinking on his feet and dancing on the head of a pin. I do not say that in a derogatory way.

Let us suppose that a particular individual is being pursued through criminal proceedings, and an assumption has been made of a criminal lifestyle, but the car in question is not the proceeds of his criminal conduct but the proceeds of another's criminal conduct. Does the hon. Gentleman not see that there might be opportunities under part 5 that do not exist under part 2?

Mr. Grieve: If I have understood the explanatory notes to clause 247 correctly, no. My reading of them is that the clause limits the definition of property obtained through unlawful conduct. The clause itself is rather more opaque. The explanation provided suggests that it must be obtained through the acquisitive activities of the individual or a payment for a crime. I was listening to the Minister when he opened the debate, and he gave me the impression—which may be correct, in which case I am worried—that property obtained through unlawful conduct could be anybody's property and that the definition was unrelated to any wrongdoing by the individual himself. How does that tie in with the explanation given to clause 247? I begin to think that if the Minister is right, the explanation given to clause 247 is wrong, and we will have to give serious consideration to the fact that we are widening the powers of civil recovery almost to the point of absurdity. When we come to clause 247, I shall give the Minister examples of the sort of property that would start to fall to be recovered, which will surprise people.

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I remain unconvinced. In view of that, I intend to press amendment No. 356 to a vote when the time comes. Of course, it will have to be taken under clause 248, and by that stage we will have had time to consider clause 247, so it is possible that the Minister will have persuaded me, in the stand part debate on that clause, that I am wrong. At the moment, however, I rather doubt that. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 245 ordered to stand part of the Bill.

Clause 246

''Unlawful conduct''

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