|Proceeds of Crime Bill
Mr. Ainsworth: As the hon. Gentleman explained, if the amendments were accepted, under the powers, answers could be used only in a prosecution for perjury. It would no longer be possible to use an answer in other criminal proceedings if the person who gave the answer made a statement inconsistent with it when giving evidence and the defence brought up a matter relating to the answer.
The schedule makes it clear that self-incriminating evidence given under the receiver's coercive powers will not be admissible in criminal proceedings other than in certain restricted circumstances, which are set out in sub-paragraphs (3)(b) and (c) and sub-paragraph (4). These are standard exceptions to the rule against the admissibility of self-incriminating material.
I listened to what the hon. Gentleman and the hon. Member for Surrey Heath said about the circumstances that might arise in court, but I am told that the provision does not break new ground or establish a new principle. We want to provide protection against self-incrimination, but we do not want that protection to be abused.
With regard to amendment No. 360, the hon. Member for Beaconsfield (Mr. Grieve) is right to say that paragraph 2(4) is intended to apply to the defendant and the defendant's counsel, and not to a witness who could be perceived to speak on behalf of the defendant. We want the provision to cover what is said by the defendant and those who represent him in court. Sub-paragraph (3)(b) and (c) and sub-paragraph (4) contain standard exceptions to the rule on self-incriminatory material.
Mr. Grieve: I just want to be certain that paragraph 2(4) relates to what the defendant—or counsel acting on his behalf—says by way of formal admission, and that the defendant cannot be called in support of the defence. There is a distinction. It is what is said either with the defendant's mouth or on his authority that should be placed before the court, rather than what is said by a witness who is called on behalf of the defence. I do not interpret ''on his behalf'' as referring to such a witness.
Mr. Ainsworth: The provisions are not intended to cover the latter category, in which witnesses make statements that can be presumed to be on the defendant's behalf. They cover what the defendant and his representatives say. That clearly and absolutely deals with the issue that the hon. Gentleman raised.
I reassure the hon. Gentleman that these are standard proceedings, not something that we have invented. For example, schedule 3 to the Youth Justice and Criminal Evidence Act 1999 includes similar provisions. The provisions reflect the decision of the European Court of Human Rights on the question of self-incrimination in Saunders v. United Kingdom. The hon. Gentleman's amendments would further restrict the circumstances in which the information could be used in criminal proceedings by deleting sub-paragraphs (3)(c) and (4). That would mean that information given in an answer could be used in a prosecution for perjury under sub-paragraph (3)(b), but not in any other criminal proceedings.
Sub-paragraph (3)(c) would allow an answer to be used if a person made a statement during a prosecution for an offence inconsistent with an answer that he gave to the interim receiver or administrator. Sub-paragraph (4) qualifies that, so that the answer may be used in the proceedings against that person only if evidence is adduced or a question is asked relating to an answer made by that person or those acting on his behalf—that is, those who represent him in the court proceedings. We believe that an answer should be available for use in criminal proceedings in the circumstances described in sub-paragraphs (3)(c) and (4). That will help to discourage people from changing their story to suit the circumstances. We see no reason why defendants should be free to do so.
The hon. Gentleman talked about his concern about the widening that our amendments propose, and suggested that we should leave matters as they are. The fundamental issue is that we protect people against the requirement to self-incriminate with regard to criminal proceedings. If our amendments were not made, any subsequent civil proceedings that are likely to be brought—by not the Government, but other individuals, such as victims—would not have access to or be able to use evidence that had been produced in proceedings against the defendant.
The hon. Gentleman asks how on earth the information would be discovered in the first place. Clause 258 gives a number of instances in which the interim receiver must inform not only the enforcement authority but the courts and the defendant. If the hon. Gentleman ploughs through the whole clause he will see that, by and large, the interim receiver must inform everyone concerned about everything that he finds at the time that he finds it. The interim receiver will not be forced to disclose information to a subsequent litigant. The information will have been disclosed at the time. If we do not widen the ability to use that information, it will be available on the record at the time of the case against the defendant, but a subsequent litigant would not be able to use it for his or her own case.
We do not believe that the amendment's proposal to allow other civil litigants to use information that has been obtained is a threat to self-incrimination. It would be strange and unnecessarily restrictive to prevent such litigants from doing so.
Mr. Grieve: I have just glanced at clause 258, which is about reporting. I appreciate that that shows that the receiver has a duty to report information that he obtains to the court and the enforcement authority. I do not, however, follow how that information will be available to a personal or corporate litigant who decides to bring an action against the same person whom the receiver investigates. In reality, it is possible that during and before the conclusion of the proceedings, the information might come to light. However, it is equally possible that the information would never come to light, although it would be available to the receiver. I suspect that the operation would be slightly hit and miss.
Mr. Ainsworth: I am not aware of a requirement in the Bill that obliges the interim receiver to make available to subsequent litigants information that he has provided to the court.
Mr. Grieve: I go further. I tell the Minister that it would be a serious breach of the receiver's duty if he made material that he obtains under his powers during the receivership available to the public. That is why I raised the issue. Unless the receivership ends in recovery proceedings, in which case the matter will be very public and information will come to light, the material is unlikely ever to see the light of day unless there is a serious breach of confidentiality. I foresee fishing expeditions, in which litigants try to obtain access to the information that the receiver obtained confidentially. That raises important issues, including potential Human Rights Act issues.
Mr. Ainsworth: The hon. Gentleman is absolutely right. There would not be the ability subsequently to reveal information that was not revealed at the time. At the time, the interim receiver would have been obliged to serve a copy of his report—and any subsequent reports—not only to the court and the defendant, but to anyone whom he is aware has been affected by the confiscation procedures. Therefore, the information might be known to victims who subsequently wish to pursue a case through civil proceedings. In those circumstances, we are, in effect, allowing them to use the information that they have gained from the report that was made at that time. However, we are not allowing them—or other people who were unaffected by the case—subsequently to interrogate the interim receiver, or to go on fishing expeditions. That is what the hon. Gentleman is worried about. It will not be allowed—but potential victims will be able to make use of the information that is reported.
Mr. Grieve: The Minister has provided me with plenty of reassurance.
With regard to civil recovery, situations might arise in which there is a victim, in the sense that there is an individual who has lost an asset because it has been taken by the person against whom the civil recovery proceedings have been brought. Those proceedings might alert the victim to the discovery of that asset, and he might be grateful to be able to make use of the information that is supplied by the receiver. With regard to such circumstances, I understand the thrust of the Minister's argument.
I wish to explain, for the record, the problem that I identified—although it does not alter my view that my party should not oppose the amendment. I suspect that, when such a proceeding is brought, there will be a good chance that a large number of individuals will hover on the edge of the case who might not have lost an asset to the individual concerned, but who might believe that they have rights of action against that individual for a host of reasons—such as a tortious grievance, or a breach of contract. There might not be an identifiable asset that belongs to them, but they might believe that they have a right to sue for damages, in one form or another. They would, therefore, be interested in the material that the receiver obtains as he conducts the compulsory procedure, because although one can serve interrogatories—and there is a degree of compulsion involved in that, with regard to pleadings and civil litigation—it is not normally possible to sit someone down and submit him to a close examination, over a number of hours, in order to learn the details of his assets and trawl through them.
With regard to such cases, I suspect that there might be many interested people, and the provision that the Minister is introducing would make it possible for them to start expressing an interest to the court about the matter, even though they might not have been provided by the receiver with direct information. For example, they might say, ''We have discovered your Rembrandt painting—or a painting that might be your Rembrandt—in his cellar.'' However, although the provision might result in more complicated arguments than have been predicted, I do not find exception to the underlying principle, because in civil litigation—unlike criminal cases—there are rules that require people to answer questions because, if they do not, they will lose an action. Therefore, I will not oppose the amendment, although it might prove to be more complex than has been envisaged.
I shall now discuss my amendments. The Minister has provided me with reassurance about amendment No. 360, and I will not seek to press it. In respect of amendment No. 358, I am also grateful to the Minister. I see that there are arguments, in this instance, for that material to be made available, if it is something that comes directly from the defendant's mouth in the witness box, which is clearly contradicted by earlier statements that he has made to the receiver during his inquiries.
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