Proceeds of Crime Bill

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Mr. Grieve: The clause—apart from clause 249, which deals with Scottish procedure—is the only clause that amplifies the civil procedure rules. We must deal with the question of what information the enforcement authority must supply in a claim form. It is interesting that those who drafted the Bill felt that the matter was one to which they should attend. If the Minister was so confident that the procedure was compatible with civil rules, the matter would not need to be spelled out. Let us examine the Bill. It states:

    ''If any property which the enforcement authority wishes to be subject to a recovery order is not specified in the claim form it must be described in the form in general terms; and the form must state whether it is alleged to be recoverable property or associated property.

    (4) The references above to the claim form include the particulars of claim, where they are served subsequently.''

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I tell the Minister, who has been so ready to tell us that the ordinary compliance with the civil procedure rules will be sufficient for these purposes, that I smell a little rat. Subsections (3) and (4) appear to reduce what one would expect in a modern claim form, especially post-Woolf. I would expect modern claim forms to be fairly detailed documents. I have a slight suspicion that subsections (3) and (4) suggest that the form's scope can be limited, because it states that the property should be described in only general terms.

I am mindful that the Minister will say, reasonably, that at the start of proceedings it may be difficult to identify all the property with which we are concerned in detail. Therefore, part of our discussion, before we move to the amendment, is to ask him to elucidate how he sees the clause working in practice. I am worried that the amount of information that must be supplied at the start of a claim may be less than what one might normally expect. I want to ensure that respondents know as much as possible about what is alleged against them.

The amendments would take the matter a little further and provide that the claim form must give details of the criminal offence or unlawful conduct that was relied on in accordance with a code issued by Secretary of State. I have made a nice concession to allow the Secretary of State to come up with a code that meets the director's requirements. I know from the previous discussion that there may be circumstances in which a criminal offence has not been alleged against the person against whom the proceedings are brought, but a criminal offence would be alleged against the person from whom he obtained the property. That should be clearly spelled out in the claim. If that does not happen at that time, it begs the question, at what stage in proceedings will the

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particulars be provided? The proceedings are draconian and novel and it is incumbent on the director to spell out the allegations as early as possible.

There are two issues for the Minister to consider. What do subsections (3) and (4) do in practice, and to what extent are they present to mitigate the requirements of the civil procedure rules? The Minister may tell me that the subsections would amplify the rules, but I am not convinced. How would the amendment, which I commend to the Committee, help to ensure that the respondent, at the time of the claim, is fully aware of the nature of the case that the director will make?

Mr. Mark Field (Cities of London and Westminster): I must confess that, unlike my hon. Friend, I am not a great civil litigation expert. That was the case before and since the Woolf reforms. However, there are two minor points on which I seek the Minister's guidance. I appreciate, on one hand, the sensitivity about going into great detail about the particulars of a claim, given the nature of confiscation orders and the controversial nature of individuals who are before the courts, especially the Mr. Bigs who have large-scale illicit business empires. However, I share the concern expressed about the broad-brush approach to particulars of claims, and I suspect that a formulation will be used on every form that will subvert the changes brought about under the Woolf reforms. I am also concerned that using a standard form of words will enable fishing expeditions to take place, and justice will not be done in that regard.

I appreciate that my hon. Friend wishes to hear whether the Minister has any further comments, after which we may wish to elaborate on the matter.

Mr. Carmichael: I have broad sympathy for the end that the hon. Member for Beaconsfield wants to achieve in relation to amendment No. 355. With regard to the provision envisaged under amendment No. 353—the parallel Scottish provision—I presume that it is intended that it should mirror the position south of the border. I have reservations about whether it is an appropriate way of achieving that. Having said that, I do not know what would be an appropriate way of doing it.

Mr. Grieve: In formulating the provision, I was having a stab in the dark. I have no pretence at expertise on Scottish law. It was suggested to me that that might be the appropriate way of doing it, and it was the best that I could do.

Mr. Carmichael: I have every sympathy with the hon. Gentleman. It strikes at one of the difficulties with regard to the Scottish provisions, which I previously identified, inasmuch as the power vested in the Assets Recovery Agency south of the border is vested in the Lord Advocate north of the border. If the Secretary of State or equivalent is to produce a code, the Lord Advocate would produce a code in Scotland, in which case he would be producing a code for himself. He would therefore be trying to direct himself, which is a nonsense. My reservation about using an act of sederunt is that I recollect that that is promulgated by

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the Lord President of the Court of Session. Having gone beyond what is effectively a normal procedural point, it is not appropriate for the Lord President to issue instructions to a Minister of the Crown.

Mr. Grieve: I understand the hon. Gentleman's point. One of the things that worried me about the Scottish amendment as I drafted it was that it is not mandatory. It almost invites the Scottish judiciary and the Lord President to do something. That was why I hesitated about trespassing on areas of Scots law about which I have no knowledge. Perhaps the hon. Gentleman, or any other Committee member who is qualified in Scots law can come up with a better suggestion, as the principle at which I am aiming is clear.

Mr. Carmichael: It is a principle with which I have broad sympathy. I cannot see a better way of achieving the aim of the amendment, and it may be a necessary compromise in those circumstances. That is a difficulty with the legislation in its current form, on which I have made my views known to Ministers and hon. Members on both sides of the House privately, without necessarily putting them on the record. This may be a good opportunity to place them on the record. I fear that the continued exercise of such functions by the Lord Advocate will cause problems, and the biggest problem will be instruction and accountability. However, we have been unable to persuade the civil servants of that, so I shall not be tilting at windmills today.

Mr. Bob Ainsworth: There could be any number of reasons why the hon. Member for Beaconsfield anticipates the arguments that I shall throw back at him. Perhaps he is simply good at guessing, or perhaps we have spent so much time together that he can now read my mind. Far and away the most likely is that he is good at taking a brief and is at least as capable of arguing against his amendments as he is of arguing in favour of them. I suspect that, despite his protestations about its being an extremely unusual procedure, he knows that that is true and is advancing an argument for the sake of it. He would be just as capable of arguing the other way.

Amendment No. 355 would require the claim form to give details of the criminal offence or unlawful conduct on the basis of which the property listed or described on the form is alleged to be recoverable. The details would have to be given in accordance with a code issued by the Secretary of State. Amendment No. 353 would make the same provision for Scotland.

Civil recovery procedures, like normal civil proceedings, will begin when the court issues a claim form at the request of the claimant. Requirements on the content of the claim form are specified in the civil procedure rules. For example, the form must contain a concise statement of the nature of the claim, including a concise statement of the facts to be relied on. It must also specify the remedy that the claimant requests.

The claim form will also include particulars of the claim, although they may be served separately. Under the civil procedure rules, they must include a concise

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statement of the facts on which the claimant relies. In practice, that is likely to include details of the unlawful conduct that is alleged to have generated the recoverable property. It should not, therefore, be necessary for the Bill to require the claim form to give details of the unlawful conduct. The enforcement authority will in any event have to disclose the details of its case, including documents and witness statements, before the start of the trial, which will give the respondent adequate opportunity to mount a defence.

The amendment would require the Secretary of State to issue a code in respect of the details to be given. It is unclear what advantage that would have over the requirements already specified in the civil procedure rules; nor is it clear what exactly would feature in the code.

The amendment implies a link between a specific criminal offence and the property involved. Although it may be possible to demonstrate such a link, clause 247(2)(b) makes it clear that property obtained through unlawful conduct need not be linked to a specific offence. It is not necessary to show that property was obtained through a particular sort of unlawful conduct as long as it can be shown to have been obtained through some sort of unlawful conduct.

The wording of clause 247(2)(b) is intentional. A requirement to show a link with a specific offence would reduce the effectiveness of civil recovery. Indeed, the difficulty of showing such a link might have been a reason why criminal prosecution was not possible in the first instance.

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Prepared 13 December 2001