Proceeds of Crime Bill

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Mr. Bob Ainsworth: I beg to move amendment No. 308, in page 145, line 26, after 'court', insert 'or sheriff'.

This is a minor amendment that will remedy a defect in the drafting of subsection (3). The clause applies to both civil recovery and cash forfeiture schemes. Under subsection (3),

    ''The court must decide on a balance of probabilities whether it is proved—

    (a) that any matters alleged to constitute unlawful conduct have occurred, or

    (b) that any person intended to use any cash in unlawful conduct.''

In the case of civil recovery proceedings, under chapter 2 of part 5, a court will decide whether the proceedings take place in England, Wales, Northern Ireland or Scotland. Proceedings will take place in the High Court or the Court of Session. However, in the case of cash forfeiture, proceedings in Scotland will take place before a sheriff. The decision as to whether it is proved on the balance of probabilities that any person intended to use any cash in unlawful conduct will therefore be taken not by a court in England, Wales or Northern Ireland, but by a sheriff in Scotland.

The amendment will ensure that the clause establishes that the requirement to reach a decision on the balance of probabilities is applied to both types of proceedings in all parts of the United Kingdom. It simply remedies a defect in the original drafting.

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Mr. Grieve: I am a bit puzzled. I thought that the sheriff sat in court. I did not expect him to sit in some other forum. The need to insert 'or sheriff' struck me as odd, but perhaps that is something that I do not understand correctly about Scottish legal procedure. It did not occur to me that the decision would be taken by a sheriff sitting in his room or his bath.

Why do we need to say ''court or sheriff''? Why does ''court'' not cover a sheriff's court? Being a man with a suspicious mind, it immediately occurred to me that the decision could be an arbitrary administrative act, done in the sheriff's bath.

Mr. Boris Johnson (Henley): What?

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Mr. Grieve: My hon. Friend expresses surprise, but he should remember that things such as ex parte injunctions can be granted by judges in their baths—indeed, that has been done.

Mr. Ainsworth: How do you know?

Mr. Grieve: I have been involved in cases in which injunctions have been granted by judges over the telephone, as is now normally done. I know that, in the past, injunctions have been granted by judges in their sitting rooms, and by passing notes out from their bathrooms.

Mr. Ainsworth: I am convinced that this is just a matter of terminology. Elsewhere, the Bill refers to a sheriff, and the amendment simply brings the provision in line with the rest of the Bill. If there is anything more sinister or far-reaching about the amendment, I promise that I shall report back to the hon. Gentleman and the rest of the Committee.

Amendment agreed to.

Mr. Grieve: I beg to move amendment No. 366, in page 145, line 26, leave out

    'on a balance of probabilities',

and insert

    'to the standard applicable in civil proceedings.'.

The amendment brings us to one of the nub issues about civil recovery proceedings. We touched on this matter previously in relation to confiscation, but it needs to be considered afresh, because this is a separate recovery system. The balance of probabilities is proposed as the test for proving whether matters that are alleged to constitute unlawful conduct have occurred. I would prefer the test to be the standard applicable in civil proceedings. As has been discussed by the Committee, a balance of probabilities is exactly what it says: it defines a particular test. However, it is common knowledge that over time—and in particular over the past 30 years—the test in civil proceedings has been varied to cater for the gravity of the proceedings and their consequences. Therefore, whereas in ordinary litigation between individuals for, let us say, negligence, the test is the balance of probabilities and nothing else, in cases where allegations of criminality are made, or where there are proceedings for contempt, the test will be higher, and the judge will have to be satisfied, within the civil standard, that it is right for him to reach a particular decision.

I want that flexibility to be preserved. This is a serious matter. The state, as represented by the director, will be given the power to bring proceedings that lead to the restraining of an individual's assets, regardless of the fact that there will have been no civil tort or contractual dispute between the state and the individual. That is draconian legislation, and it will be discussed again.

The state will also be able to bring proceedings that will ultimately lead to the confiscation, or removal, of those assets—the word ''confiscation'' is not used, but that is what we are talking about. The state will also be able to force an individual to go through a very public process, that will reveal his personal finances to the public—unless we do something about preventing that

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from happening, and I will refer to that later—and may ruin his reputation in the process, because the proceedings contain the implication that he has obtained property through unlawful conduct. We should not underestimate the effect on an individual's reputation: it will be wholly different from the effect of losing a negligence action or a contractual dispute, as those are matters of routine. Such matters do not usually touch on an individual's integrity, unless the judge has to decide whether one of the parties is lying.

I am unhappy that the proposed test is the balance of probabilities. The test should be the civil standard, and as the procedure develops, the judiciary should be allowed the flexibility to ensure that justice can be done. I urge the Committee to consider the amendment carefully, because it will not prevent recovery from taking place in cases where it should, but it might prevent recovery from taking place in borderline cases, where a judge is worried that, although there might be strong evidence, there might also be a risk of injustice. The civil test allows him that flexibility and margin, which will ensure that confiscations or recoveries that take place under the civil procedure are accepted and that there is not a growing clamour from individuals saying that they have been unfairly treated.

Mr. Hawkins: I want to reinforce what my hon. Friend ably argued. It is important that whenever these issues are dealt with by fresh legislation we use the most appropriate and most recently judicially approved method of setting things out. For reasons that my hon. Friend the Member for Beaconsfield set out, if we kept the Government's original wording, there may be problems. It would be better if we used the wording in the amendment for the reasons that he gave.

Mr. Paul Stinchcombe (Wellingborough): I am slightly concerned about the attitude of the loyal Opposition that is displayed through the amendment. When it suits them, they seem to argue for discretion to be exercised and vested in the High Court and judges. However, on numerous other occasions—in Committee and at other stages—they want Parliament to assert its sovereign right to establish thresholds that are considered appropriate. In this amendment, they say that the court should establish the threshold of evidential proof that is appropriate to meet the case. The range would be wide. As I understand it, it would range from the balance of probabilities all the way up to the criminal standard in certain circumstances. Is that abdication of our sovereign rights, as politicians with a mandate, appropriate? In circumstances such as this, when we commit ourselves to legislation that will allow civil recovery of the proceeds of unlawful conduct, should we not decide for ourselves and tell the court the appropriate standard to which we wish to work? We would make a choice—a simple election.

Mr. Hawkins: I understand entirely the hon. Gentleman's point. I cannot remember whether he served on Bill Committees in the last Parliament that

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related to criminal justice and civil justice, but I know that he and I have served together on various Bill Committees. He may recall that his Government used the phrase in the amendment in various Bills that were introduced during the 1997-2001 Parliament.

My brief contribution was to point out that the phrase

    ''the standard applicable in civil proceedings'',

which gives the court flexibility, has been used by his Government in recent Bills that have been enacted, so the problem was not as large in those Acts as the hon. Gentleman suggests that it is in this one.

The Chairman: Order. I have told people off all afternoon for long interventions, and that was another good—or bad—example.

Mr. Stinchcombe: I accept what the hon. Gentleman said. I am sure that he is right that the terminology was invoked by Parliament in certain legislation and that it would have the impact that was ascribed to it.

I served on the Committee that considered the Bill that was enacted as the Crime and Disorder Act 1998. I asked the other week whether hearsay evidence is admissible, and the parliamentary answer was that it is. The civil standard of proof is a flexible standard, so the front, side and indeed back doors can be used. We should decide where the door should be and how it should be opened for provisions in every Bill that we consider on its merits. When we assume that prerogative, we must face up to the hard question of which threshold we want in a Bill.

I ascribe fundamental importance to this Bill, and I would use the lower threshold at this juncture. I say that for reasons of principle. It is flagship legislation, significant for the reasons stated by many hon. Members, and not least for those stated by my hon. Friend the Member for Glasgow, Pollok: in our country today, communities have been completely destroyed or gravely damaged by criminals who flaunt the proceeds of their wealth in ways that we can no longer tolerate but are currently largely powerless to affect. I recall talking to an hon. Gentleman who described a conversation with someone on an estate in his constituency. He told that person to give up crime because he had talent and could make something of his life. The individual responded that he would need a job that would pay for Gucci shoes and a Boss suit in an afternoon, because that was what his current activities could provide.

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That is the position that we face and the threat we must confront. We are entitled and right to choose the lowest level of proof in this instance. I am mindful of the civil liberties implications of such decisions, but this is an introductory chapter to part 5, which includes discretions. Clause 245 has an enabling provision that introduces that chapter, so it is proper to have a low threshold, knowing that the appropriate authority has the chance to exercise discretion in many cases. Other clauses ensure that appropriate discretions and protections are contained in the legislation.

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It is right that we, as legislators, make our choice. It is right to choose the lower burden, but we must also diligently take care in considering the main provisions to ensure that appropriate protections prevent injustice.

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