Proceeds of Crime Bill

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Norman Baker: I do not want to flog this subject to death, but the Minister did not answer the points made by his hon. Friend the Member for Wellingborough and the hon. Member for Beaconsfield (Mr. Grieve). Will he answer a simple question? Does he understand the word ''criminal'' to mean the same as the word ''unlawful'', or is it different?

Mr. Ainsworth: We do not believe that changing the word would make a material difference. It would certainly not make the issue clearer than it is under the gateway test of the director's reasonable suspicion that the property against which he intends to make a tax demand is the product of criminal activity. I believe that that is clear, and I do not think that the amendment would make an improvement.

Mr. Stinchcombe: I am afraid that I simply do not understand why we use two terms with different definitions to define the same kind of conduct.

Mr. Ainsworth: We use them in two different parts of the Bill for two different purposes. That is all that I can say to my hon. Friend. Part 6 is about taxation powers, not about civil recovery, which is dealt with in part 5. We believe that ''criminal'' is the appropriate word, and unless someone can think of some good arguments about how to improve on it, what is the purpose of changing it?

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Mr. Hawkins: I suggest that there is a philosophical difference, which my hon. Friend the Member for Beaconsfield has sought to advance. There is also the question of the definition of ''unlawful conduct'' in clause 246, to which the hon. Member for Wellingborough has drawn attention. Clause 246 states that unlawful conduct is established

    ''on a balance of probabilities'',

whereas criminal conduct is normally decided to the standard of ''satisfied so sure'', or, by the old test, beyond reasonable doubt.

10.45 am

Mr. Ainsworth: I have tried to tell the hon. Gentleman about the gateway, which provides not for the raising of tax but for the director to apply to the Board of Inland Revenue to take control of tax affairs for a set period. The gateway is that the director has reasonable grounds to suspect that property is the product of criminal activity. I have yet to hear anything from the hon. Gentleman that challenges our definition as the most appropriate one.

Mr. Mark Field (Cities of London and Westminster): Given the dancing on a pinhead that we have done about the meaning of words ''unlawful'' and ''criminal'', will the Minister tell the Committee the distinction, for a director who is considering the tax implications, between criminal conduct and unlawful conduct? Why is our term so unsatisfactory that he thinks it impossible to take our amendment on board?

Mr. Ainsworth: I have already said that we cannot find any material difference. I have nothing to add to that.

Mr. David Tredinnick (Bosworth): I am not a lawyer, but I find the debate confusing and disturbing. It seems that we are using different terminology to mean the same thing in different parts of the Bill. Why do we use different terminology? In the interests of elucidation, we should use one simple term for one condition.

Mr. Ainsworth: The different parts of the Bill do different things. It is beyond me why any hon. Member should be surprised that different terminology is used in different parts. Part 2, which deals with criminal confiscation, uses terminology for the initial freezing of assets different to that used in part 5. As parts of the Bill are to be used in different ways, there is no reason why terminology appropriate to the powers provided in those parts should not be used.

The only issue of substance is that of reasonable doubt. Criminal conduct is not always proved beyond reasonable doubt; the balance of probabilities applies to criminal conduct in part 2. There is no issue about levels of proof; I am not suggesting that. I have yet to hear an argument that shows that the proposed change would make a material difference.

Mr. Boris Johnson (Henley) rose—

Mr. Ainsworth: I give way to the hobbit.

Mr. Johnson: I am grateful to the elf—or the orc, or however the Minister styles himself. There is an

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elementary difference between the words ''criminal'' and ''unlawful''. ''Unlawful'' is surely synonymous with illegal. It is possible to imagine something that is illegal but not criminal. I am not a lawyer, but you guys are meant to be able to work out that sort of thing.

Mr. Ainsworth: I do not know what else I can do, other than repeat myself. We are trying to provide a gateway to show the circumstances in which a person's tax files can be transferred from the Revenue to the director. The terminology that we have chosen to use is that the director has ''reasonable grounds to suspect'' that the origin of whatever he is investigating—which is most likely to be property—is criminal gain. That is the gateway that we have provided. I do not understand how the amendment would improve on that, and therefore I am not minded to accept it.

Mr. Tredinnick: I am sorry to press the Minister, but we have still not resolved the issue of whether the two terms mean something different. I see no reason why we should use one term in one part of the Bill and another term in another part. The House has Committees to consolidate legislation and make things clearer. They are specifically intended to avoid complication, as the Joint Committee on Statutory Instruments does all the time.

I understand the Minister's point. The phrase is convenient, perhaps the flow of English is better this way, and it is, perhaps, more meaningful to a lay person. However, learned counsel all over the Room are expressing anxieties about the definition, so it behoves him to tell the Committee that he will consider the matter. The Committee's purpose is to find such issues, which some clever Mr. Carman, for example, will light on in a trial, make much fun of and use to mock everyone and tie the jury up in knots because he is so clever with words, as are many hon., and learned, Gentlemen—who are cleverer than those of us who are not learned—

The Chairman: Order. This is a long intervention.

Mr. Tredinnick: I do not want to pursue the matter further, but the issue is of paramount importance, and the Minister has not yet convinced me. He should generously say that he will reconsider it.

Mr. Ainsworth: I think that we have shown at various times in Committee that when substantive issues are raised, we are more than happy to consider them, and we intend to continue to do so. As I said, I see no material difference between the terms, but it is right to use terminology in one part of the Bill that is appropriate to that part. I do not envisage that causing great confusion or ridicule. If I did, I should be happy to consider the matter—but I do not.

Mr. Ian Davidson (Glasgow, Pollok): Does the Minister agree that this is one of those debates about how many angels can dance on the head of a pin, and that although it is a criminal waste of the Committee's time, it is not, unfortunately, unlawful?

Mr. Ainsworth: That says it all.

Mr. Grieve: That intervention by the hon. Member for Glasgow, Pollok (Mr. Davidson) typifies what the

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Committee should avoid. He said that something was criminal behaviour, but unfortunately, it was not unlawful. He used the expression ''criminal'' as a colloquial term, but used the word ''unlawful'' in its correct meaning. That is exactly the problem.

I agree with the Minister that changing the definition as we suggest would make no difference in practical terms. ''Unlawful'' can have a wider definition than ''criminal'', but the definition in the earlier clause—''unlawful conduct'' is conduct that constitutes a criminal offence—would narrow it down. ''Unlawful conduct'' can cover both criminal conduct and conduct that is outside the sanctions of the criminal law.

I do not want to get bogged down, but I refer in passing to the mention made of planning law. People who breach planning law can usually be proceeded against in the civil courts for an injunction, or prosecuted. In so far as people can be prosecuted for a breach of planning law, it would constitute a criminal offence that would fall within this section as it stands—or as it would stand if we were to amend it.

Mr. Stinchcombe: I participated in an enforcement notice inquiry into action, or use of land, that breached planning controls. The man involved became a millionaire in two years, before proceedings could take place under an enforcement notice.

Mr. Grieve: The hon. Gentleman points to the difficulties involved in enforcement in planning cases, with which I am familiar. A person who carries out work on the land in breach of planning law is, depending on the precise circumstances, guilty of committing a criminal offence. I have prosecuted such people.

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

Mr. Grieve: No I shall not give way, as I do not want to get bogged down. [Hon. Members: '' Oh!''] All right, I will give way, although the point is somewhat tangential. A breach of the planning laws may give rise—and in my experience has given rise—to criminal offences for which people have been convicted.

Mr. Stinchcombe: I suspect that the hon. Gentleman may have prosecuted people who were in breach of an enforcement or condition notice. He would certainly not have prosecuted anyone for simply carrying out development without planning permission.

Mr. Grieve: I understand the point that the hon. Gentleman is trying to make, but the enforcement notice is an administrative act that alerts people to the fact that they have breached planning laws. Failure to comply with the enforcement notice gives rise to the criminal offence. So, via the enforcement notice, a person who is in breach of planning regulations is on the road to committing a criminal offence.

Mr. Tredinnick: Will my hon. Friend give way?

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