Proceeds of Crime Bill

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Mr. Ainsworth: I am afraid that I do not agree. As I said, normal civil proceedings have the potential to do serious damage to people's or businesses' reputations. Despite the potential for that damage, until now, Parliament has decided that, in general, court decisions should be taken in open court, and that justice should be seen to be done as well as being done. The hon. Gentleman is asking for an exception and a predisposition—at least, when certain issues are exposed—that would allow for private hearings. Such matters are best left to the court; it is perfectly capable of listening to representations and making decisions. We ought not to seek to limit the court's discretion, or to depart from the normal civil procedure rules. The amendment should be withdrawn.

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2.45 pm

Mr. Grieve: I am sorry that the Minister takes that approach. I was prepared to be flexible, although a serious issue is at stake.

In last Tuesday's debate, the hon. Member for Redcar (Vera Baird) highlighted the potentially damaging impact that such a process could have on people. Other hon. Members have made similar points—and some of them are also Government Members.

I accept that the presumption in favour of public hearings is an important principle. I listened carefully to the Minister's arguments, and he has come close to persuading me—for instance, in serious cases in which individuals are accused of personally possessing the proceeds of their own unlawful conduct, I agree that important public policy issues must be taken into account, and that justice should be seen to be done, and that the seriousness of the allegation should be considered. As he knows, I have anxieties about the test that will be applied, and the nature of the proceedings, but I can see the argument for conducting such proceedings in public—unless the court decides that there are compelling reasons not to do so.

However, as the Minister has stated, unusual cases will arise in which proceedings are brought against a person who, it is acknowledged at the outset, is either a bona fide purchaser or the innocent recipient of money. In such circumstances, it would be extraordinary if even the court were left with the discretion to decide whether the proceedings should be public or private. I can see no public policy reasons whatever why that should not be a private process, unless the person being subjected to it wishes otherwise.

Vera Baird (Redcar): I understand the cause for concern. I wish to recruit an argument that I made yesterday. An accountant might be a named party in such proceedings, and he might be found to have behaved wholly properly. However, during the proceedings, the publicity that attaches to him could be very damaging to the confidence that his other clients might have in him as an honest accountant.

I also advocated that there should be a code of practice for the director of the Assets Recovery Agency, which I likened to the code of conduct for Crown prosecutors. That code might include a duty for the director, in advance of bringing proceedings that involve an innocent third party, to consider whether he might wish to make an application to the court for the proceedings to be held in private, because, although my hon. Friend the Minister is absolutely right that the court has that discretion, it would be much more likely to exercise it if the application were to come from both sides. Furthermore, the director might be glad to have the duty to consider that. I pray it in aid again as a suggestion that there should be a guide.

Mr. Grieve: I am very grateful to the hon. Lady. At lunchtime, when I reread the remarks that she made on Tuesday, they immediately brought to mind her

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comment about the code of conduct. That was an unfortunate consequence of not having a chance to reread Hansard before this morning's proceedings, because I would have raised that issue when closing my submissions on the amendment that we were only halfway through discussing. She made an important point. It slipped my mind when I made my closing remarks about the balance of probabilities.

If such a code were offered and details were provided, it would be good grounds for no longer having such an anxiety. I agree entirely with the hon. Lady about the code if it provided that the director must pay due regard to the need for privacy in cases when an individual's interests may be damaged and, included within that, the nature of the director's case against that individual in seeking to recover the particular assets. When such a code was set up, one could easily have a joint application to the court when the director said, ''We fully accept that, although we are seeking to recover money from this particular individual, this is not a case in which he has personally committed unlawful conduct. Although we believe that the assets should still be recovered, we would support his application that the matter be dealt with in chambers, because he falls within the category of an innocent recipient.'' That would go a long way towards solving the problem. I shall give the Minister an opportunity to say that he is minded to go along with our proposal.

Mr. Ainsworth: I am enormously aware of the fact that the hon. Gentleman, as well as my hon. Friend the Member for Redcar, has experience of matters that I do not have, but surely he accepts that there is a code. It is the civil procedure rules. It is our desire that those rules should apply absolutely to the director. They will govern him and everyone else. The hon. Gentleman is suggesting that there should be a separate code, other than the civil procedure rules, that applies specifically to such cases and to no other civil recovery cases. I am stretching for the justification for such an argument.

Mr. Grieve: The justification starts with the premise that the proceedings are, by their very nature, unusual. What generally goes on in civil courts is the litigation of individual rights between individuals—claims by one individual or corporation against another. Here, we are talking about a state-sponsored mechanism for recovering assets from an individual. Furthermore, as the Minister has accepted, we are discussing the recovery of assets that need not otherwise be impugned either by the taint of criminality—because no criminal charge has been brought—or by a claim of any other individual. There may be cases when the money has also been claimed by another individual as the assets of crime, but that is not necessarily the case.

In those circumstances, surely we are much closer to the processes that take place before the special commissioners of income tax than to ordinary court procedure. I have serious doubts about importing ordinary civil rules to that procedure under the Bill, because it does not bear much resemblance to the

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rules. I am not sure that the discretion under part 39 of the civil procedure rules is helpful, although the courts might starting making use of it.

I do not know about the experience of other members of the Committee who have practised in legal matters, but I have never taken a civil case in which the court sat in chambers unless it was specified in the rules that that was the ordinary practice, as it is in family law work, for example. I have heard of cases in which the court has gone in camera to hear evidence that is particularly difficult or sensitive. I can apply only my own experience, and I have not encountered that, although other hon. Members who are solicitors or barristers with practising certificates may have knowledge that I do not.

I am concerned that, unless the habit develops over time, courts will follow their usual practices and matters will be heard in open court. As the procedure is between the state and a person, the state, through the director of the Assets Recovery Agency, has particular responsibility to act in a totally fair manner and to have regard to the impact that proceedings will have on innocent people. That is different from the adversarial system, which sets one civil litigant against another.

Parliament and the Government could lay down a sensible rule. That rule might not have to be as broad as the one that I suggest, but I urge the Minister to go away and speak to his advisers. He should think about the matter and consider whether he is prepared to return with a concession that could mete out the justice needed in such cases. So far, he has not given an inch, and in light of that I intend to press the amendment to a Division. I will also come back on Report with a slightly different proposal that may commend itself to him more than the broad amendment currently proposed. I regret that, in the absence of any concessions or indications that the Minister will do anything about the matter, I want to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 13.

Division No. 16]

Brooke, Annette
Carmichael, Mr. Alistair
Field, Mr. Mark
Grieve, Mr. Dominic
Hawkins, Mr. Nick
Wilshire, Mr. David

Ainsworth, Mr. Bob
Baird, Vera
Clark, Mrs. Helen
David, Mr. Wayne
Foulkes, Mr. George
Harris, Mr. Tom
Lazarowicz, Mr. Mark
Lucas, Ian
McCabe, Mr. Stephen
McGuire, Mrs. Anne
Robertson, John
Stinchcombe, Mr. Paul
Stoate, Dr. Howard

Question accordingly negatived.

Mr. Grieve: I beg to move amendment No. 355, in page 146, line 17, at end add—

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    '(5)The claim form must give details of the criminal offence or unlawful conduct relied upon in accordance with a code issued by the Secretary of State prior to implementation.'.

The Chairman: With this it will be convenient to take amendment No. 353, in page 146, line 26, at end insert—

    '(2A)The application must contain details of the criminal offence or unlawful conduct relied upon in accordance with any code that may be made by act of sederunt.'.

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