Standing Committee B
Thursday 13 December 2001
(Morning)
[Mr. Roger Gale in the Chair]
Clause 246
''Unlawful conduct''
Amendment proposed [11 December]: No. 366, in page 145, line 26, to leave out the words
'on a balance of probabilities',
and to insert the words
'to the standard applicable in civil proceedings.'.—[Mr. Grieve.]
8.55 am
Question again proposed, That the amendment be made.
Mr. Dominic Grieve (Beaconsfield): On a point of order, Mr. Gale. We still do not have the Hansard report of our proceedings on Tuesday afternoon. It was not available yesterday and I understand that it is still at the Stationery Office. I appreciate that such matters may be outside your powers, but such a situation is inconvenient, especially when we have a split debate. We are in the middle of discussing a substantial clause, so the ability to refer back to what was said previously is important.
The Chairman: That point was well made, and I shall take it up with the authorities in the House.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): Good morning, Mr. Gale. Having laboured for so long on the Bill and knowing how much that hope is required at this time on a Thursday, I wish to point out two matters to the Committee: this is the last time this year that we shall meet at this hour on a Thursday; and my hon. Friend the Member for Stirling (Mrs. McGuire), the Whip, informs me that we are halfway through the Bill. I wanted to make sure that I named her in Committee in case her figures are wrong. Christmas is coming and some respite from our labours approaches.
As the hon. Member for Beaconsfield (Mr. Grieve) said, we are in the middle of a debate and some important issues have been raised. It is difficult to recall everything that was said during our previous sitting, but I am sure that members of the Committee will not be slow to remind me if I fail to address substantial issues that have been raised.
The amendment would mean that the court would have to decide on the civil standard of proof—not on the balance of probabilities—whether matters alleged to constitute unlawful conduct have occurred or whether a person intended to use cash in unlawful conduct. The balance of probabilities is the normal standard of proof applicable to civil proceedings. However, some limited civil proceedings attract the criminal standard. The amendment would therefore make the position less clear than under the current formulation of
''on a balance of probabilities''.
We discussed such matters when we debated part 2. Our opinion then on how matters should apply in the proceedings is no different now. The present wording gives a far clearer steer to the courts of what Parliament expects from the level of proof required under part 5.
Mr. Nick Hawkins (Surrey Heath): Although the Minister is saying that the clause sets out the conventional way in which the Government prefer to deal with such matters, he has not given sufficient weight to the powerful speech made on Tuesday by the hon. Member for Redcar (Vera Baird). She has enormous experience and far more legal seniority than other members of the Committee. Given her powerful speech in which she supported my argument and that of my hon. Friend the Member for Beaconsfield and other Opposition Members, I should have thought that the Minister would have given more credence to what she said.
Mr. Ainsworth: Well, the time is 8.59, a point of order has been made, I have just started speaking, and the hon. Gentleman has intervened. If he gives me the opportunity, I might do exactly as he suggested. I recall my hon. Friend's speech and I picked up on a couple of points that she made. I respect her capacity, ability and experience in dealing with such matters. She should be listened to seriously, as should other members of the Committee.
Clause 246 sets out the standard of proof that is to apply in civil recovery and cash forfeiture proceedings to determine whether unlawful conduct has occurred or, in the case of cash, is intended to occur. Subsection (3) deals only with the standard of proof that applies to proving unlawful conduct, not all other issues that must be proved in part 5 proceedings. That is because, since part 5 proceedings are civil proceedings, it is considered to be self-evident that the civil standard of proof applies.
Mr. Grieve: The Minister says that the proceedings are civil proceedings. I accept that that is the way in which part 5 is headed. However, does he agree that elements of that recovery process do not bear the normal hallmark or stamp of civil proceedings? For example, is there a limitation period in respect of the time in which property can be recovered? My understanding of part 5 is that there is not.
Mr. Ainsworth: The hon. Gentleman is not right. There is provision for a limitation period in the proceedings. Although he and other members of the Committee may be more familiar with the normal situation than I am, there is a 12-year limitation period, and I believe that that is not out of line with the normal situation. If it helps the hon. Gentleman, the provision can be found under clause 287.
The only area in which there could be any doubt is in relation to unlawful conduct, since that is defined by reference to the criminal law. Subsection (3) is designed to overcome that element of doubt. It provides that the test will be the balance of probabilities, which is the normal standard of proof applicable to civil proceedings. We discussed that issue in some detail in our consideration of part 2. The same arguments apply here. The phrasing used achieves what we intend in a way that a reference to the civil standard would not, because some civil standard proceedings attract the criminal standard of proof requirement.
The standard that normally applies in civil proceedings is, however, the balance of probabilities. It is the standard that applies in other proprietary proceedings under the civil law. It is therefore appropriate that it should apply to civil recovery and cash forfeiture. It is not appropriate for there to be any possibility that the criminal standard should apply, because both civil recovery and cash forfeiture are civil proceedings. They do not, and cannot, lead to a conviction.
During our consideration of part 2, I quoted the comments of Lord Nicholls in the case of Re H in 1996. He made it clear that, when assessing the probabilities, the court will have in mind that the more serious the allegation the less likely it is that the event occurred. With that in mind, the court should expect stronger evidence before concluding that a more serious allegation is established on the balance of probabilities. At the moment, my hon. Friend the Member for Redcar is not in the Committee. On Tuesday, she said that the standard that we were proposing was rigid. I bow to her expertise. None the less, I know of people with similar expertise who take a different line.
For example, I have heard the views of a senior judge and, if the Committee would like, I can quote chapter and verse on how he explained the workings and the wordings of the balance of probabilities. I see that the hon. Member for Orkney and Shetland (Mr. Carmichael) is protesting that I should not do that, but it is not my understanding that the standard is rigid. It is flexible, as the judge explained in the case to which I referred. It moves, in terms of the seriousness of the offences that people are facing. In civil recovery proceedings, the burden will be on the director to prove that, on the balance of probabilities, the property was obtained through unlawful conduct. If the court thinks that it is more probable than not that the claim against the respondent is true, the burden of proof is discharged.
On Tuesday, the serious point was made that we are not discussing cases that involve two equals, as is usual in civil recovery proceedings. In these civil recovery cases, the state is against the individual. That is undeniably true, but I remind the Committee, as it considers that inequality, that we are not talking about situations that may apply under part 2. We are not talking about the granny with the telly in the drawing room of her Scottish council flat. The director will not get involved in expensive civil legal proceedings unless, as the steward of the resources given to him, he can show that he is using those resources well. He will be sure to target substantial sums of money and serious criminals.
If we are to have a balanced view, we must remember that it is for the director to prove on the balance of probabilities that the property is the proceeds of crime. The defendant knows the origin of the property; it is for the director to find out and prove that the property is the proceeds of crime. That fact must be put on the scales when considering the potential imbalance that hon. Members said would arise because one of the parties is the state. The defendant is in an advantageous position in that respect.
Mr. Grieve: The Minister's argument would have considerable force if that were the position. He courteously wrote me a letter, which I hope that other members of the Committee have seen, in which he details the difference between the powers for civil recovery and confiscation. Civil recovery proceedings can extend to include property that was innocently acquired but has an origin that places it in the category of property acquired by unlawful conduct. The Minister is not right to say that the defendant will know the origin of the property. There may be circumstances—although I hope that they would be unusual if the director was bringing proceedings—in which the person whose property the state is trying to recover would have no idea of the property's unlawful origin.
Mr. Ainsworth: Yes, but that is not what I said. I am sure that this debate will continue throughout part 5. When we discuss the safeguards in clause 306, the hon. Gentleman will wish to explore whether those safeguards are adequate. The person will know where they gained the property, even if they do not know how the individual who passed that property on to them gained it. The person will know that if they gained the property innocently and paid its full value, it is not forfeit.
The hon. Gentleman may raise interesting issues that we need to explore, but they do not contradict my point. The defendant will be aware of how he gained the property. The director has only the information that comes to him in the course of his investigations to discover and prove the origins of the property. There is no reverse burden in part 5. The burden remains on the director, albeit to the level of the balance of probabilities.
There is nothing more that I can say, other than that I do not believe that it is appropriate to change the wording in the Bill as the amendment would do. Opposition Members cannot undo the fact that the Bill uses the words,
''on a balance of probabilities'',
so they are proposing something different. If their amendment were accepted, and we replaced the balance of probabilities with the civil standard, we would send the courts the clear message that we want a higher standard or the criminal standard to apply in certain circumstances. We should avoid that confusion. We need to stick with the wording in the Bill, which is clear. It is the normal civil standard of the balance of probabilities, and I would resist lifting the hurdle for the prosecution in proving its case.
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