Proceeds of Crime Bill

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Mr. Carmichael: I am not minded to support the amendment, but I share many of the concerns of the hon. Member for Beaconsfield.

I wonder whether the Government have got the drafting of the clause the wrong way round. It should, perhaps, have stated something along the following lines:

    ''Where a failure by a constable to comply with a provision of the code is wilful or malicious, he will be subject to criminal or civil proceedings.''

I am making a point about tone; as the clause is currently drafted, the liability to criminal or civil proceedings is implied, and I would prefer stronger terms to be employed.

Mr. Bob Ainsworth: The provision in subsection (6) of both clause 291 and clause 292 is a standard provision in legislation of this type. It mirrors section 67(10) of the Police and Criminal Evidence Act 1984—which is also mirrored in relevant provisions of the Terrorism Act 2000.

The Government believe that establishing codes of practice for the law enforcement agencies provides an important safeguard for people who come into contact with those agencies. The assumption is that those covered by a code of practice will be trained in its provisions, and will abide by its terms. That is the clear expectation.

It is, therefore, common provision that codes of practice are admissible in evidence in criminal and civil proceedings, and can be taken into account. Failure to abide by a provision in the code can therefore prejudice a case brought by the prosecuting authorities. Failure to comply with a provision of the code might also,.depending on the circumstances, render an officer liable to internal disciplinary proceedings.

We do not, however, believe that customs officers or constables should be liable to criminal or civil proceedings solely because they have not complied with a provision of a code of practice. In some cases, such a failure may constitute part of a wider pattern of behaviour that involves criminal or civil liability, but that need not be the case.

As I mentioned at the outset, removing subsection (6) would not, of itself, render any officer liable to criminal or civil proceedings, in the absence of specific provision to that effect. However, given the obstacles and difficulties that face our law enforcement officers, we believe that it is important to signal to them that there is no question of such a liability. Given that provision to that effect is made in other, similar, circumstances, if we were to remove it, that could be taken to suggest that the position is different in this instance.

Mr. Carmichael: As it currently stands, the clause reads that the failure

    ''does not of itself make him liable to criminal or civil proceedings.''

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I infer from that that there are circumstances when a customs officer or constable can be liable, particularly to criminal proceedings. What would be the crime?

6.45 pm

Mr. Ainsworth: As I said to the hon. Gentleman, the fact that the officer failed to comply with the code could be taken into account in criminal proceedings and disciplinary matters as well as in civil proceedings. What we do not want to do— and what the removal of subsection (6) clearly would do—is give an impression that the liability existed in one case that did not exist in other cases. That would not be helpful.

Mr. Carmichael: Perhaps I did not make myself clear. I cannot get away from the fact that the inclusion of the words ''of itself'' means that in some circumstances an offence can be committed that amounts to a failure to comply with the code of practice. Given that no such offence is created under the Bill, the clause does not make sense.

Mr. Ainsworth: Of course the clause makes sense. The code of practice is concerned with how someone should behave when conducting a search under the Bill. Someone could suggest that action had been taken against him inappropriately. Such a person would be able to say, as part of his case, that the constable or the customs officer did not comply with the code of conduct. A case may be brought against a particular officer that is based on far wider issues of misconduct, and a failure to comply with the code of conduct could be part of that case. The position is clear. I do not accept that there is a problem. All that subsection (6) says is that, of itself, non-compliance does not render the officer liable to prosecution.

Mr. Grieve: I accept that the Minister may have a problem. He is labouring under a previous practice that has been imported into the Bill. I do not understand subsection (6) because there is no existing specific tort of not following the code of practice under the Proceeds of Crime Bill. There is no criminal offence of not following that code of practice. In such circumstances, I do not understand why subsection (6) has to be in the Bill. It makes me suspicious that it is there to provide a check or fetter on the ability of people in the ordinary course of events to bring civil or criminal proceedings that may arise in connection with actions of the officer under the proceeds of crime search powers. That brings me to subsection (7). I do not understand it. It reinforces my view that there is no need for subsection (6).

Mr. Ainsworth: I honestly do not understand the hon. Gentleman's worries. We are introducing a code of practice, and we want it to apply to those who will operate under the Bill. We expect them to be trained and to conduct themselves within the code of practice. We accept that other codes of practice apply to people in similar circumstances, and the provision is made under that remit. Under subsection (6), a failure to comply with the code of conduct will not in itself render the person liable to criminal or civil proceedings. Subsection (7) makes it clear that, despite

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that fact, the code can be taken into account as part of another criminal, civil or internal disciplinary case. I cannot see a problem. The provision is there with regard to other codes of conduct. If we remove it, we shall signal that something different applies in this case. It does not and it should not—and I cannot understand the hon. Gentleman's problem.

Mr. Grieve: As I said, I have some sympathy with the Minister. What is being reproduced here appears to be similar to provisions in relation to other codes of practice. I was not in Parliament at the time when those codes of practice came up for scrutiny. If I had been, I should have made exactly the same point about them as I raise about this.

Mr. Carmichael: But the hon. Gentleman would have been on the Government side then.

Mr. Grieve: I might well have been raising the point from the Government Back Benches, but I would still have raised it. I do not like subsection (6). It is difficult to understand why it is there. The code of practice is important and it is important that it should be followed. The Minister has placed great reliance upon it. I am doing my best to explore what is behind the subsection, the most likely explanation seems to be that it is designed to prevent the emergence of what would be a common-law tort of not following the code of practice. I cannot think of anything else. No specific statute-based breach can be devised to prevent somebody, relying solely on the breach of a code of practice, from bringing a civil claim under some other head. I am not happy with that. Although it might have appeared in previous codes, I cannot see why it should appear in this one.

Mr. Paul Stinchcombe (Wellingborough): Does the hon. Gentleman believe that there should be a tort of failing to comply with the code?

Mr. Grieve: No, I do not think that there should be such a tort in itself.

Mr. Stinchcombe: Will the hon. Gentleman give way again?

Mr. Grieve: Just let me finish. However, it should be open for a person bringing a claim in tort to rely upon the breach of the code in itself as the basis for doing that. I can see circumstances in which that could be done, although I suspect that the case would have to touch on the officer's reasonable grounds for belief. I would simply like to leave the possibility open, as in some cases it might be relevant to rely solely on the breach of the code by the officer.

Mr. Stinchcombe: As the Bill stands, the clause declares that the breach would be admissible in evidence where another tort could be established.

Mr. Grieve: Yes.

Mr. Stinchcombe: However, it declares also, in conformity with existing law, that a failure to comply with the code would not, of itself, amount to that tort.

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To withdraw the latter declaration would automatically open up the possibility of the creation of a further tort—the breach of the code of itself. That is exactly what the hon. Gentleman said that he did not want to do.

Mr. Grieve: The hon. Gentleman and I are gradually working along similar lines, although we might come to a different conclusion. I am not in favour of the specific creation of a tort of failing to follow the code of practice. However, we have an evolutionary legal system, and I would like to leave open the possibility that there might be circumstances in which one of the general torts that somebody could impute to an officer was based on a breach of the code of practice because of all the surrounding circumstances. That is what subsection (6) prevents, or is trying to prevent. There is a difference of degree between that and openly spelling out that breach of the code shall be a tort. I can think of examples in the general law of tort where it depends on the facts of an individual case whether something is tortious or not.

Mr. Stinchcombe: We seem to be witnessing one of the quicker U-turns. In my first intervention, I asked the hon. Gentleman whether he thought that there should be such a tort. He said no. He is now expressly saying that he would like to delete the provision in order to allow for the opportunity to create exactly that tort.

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