Proceeds of Crime Bill

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Mr. Ainsworth: The amendment would require that the court be satisfied that the order is likely to be of substantive value to the investigation. The thrust of the Opposition amendment is to qualify that, and, in effect, to forge a stronger link between the investigation and the property or the underlying offence. A disclosure order is a significant power, designed to assist the director in his investigations. For example, the subject of a civil recovery investigation may have gone to great lengths to try to put property that is—or represents—the proceeds of unlawful conduct beyond the reach of the director. I have had the impression when we have been discussing the powers under part 8 we seem to have forgotten, or to be prepared to forget, some of our earlier debates on civil recovery, and the extreme ingenuity that is used to hide the proceeds of crime and render them incapable of recovery. I ask Opposition Members to bear that in mind when they constantly try to rein in the ability of the investigatory powers to recover those proceeds.

5 pm

Mr. Hawkins: The Minister, who is being fair in his approach to the issues, should recognise that without undermining the spirit of the Bill, there is a legitimate reason why we should debate the question of what reins should be attached to any investigatory body. When we are extending powers, it is Parliament's job

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to ask how far the new powers should go. Again, I see the hon. Member for Lewes nodding in support of my comments.

Mr. Ainsworth: I have had that lecture from the hon. Gentleman, his colleagues and the hon. Member for Lewes on more than a few occasions, and each time I have retorted that I accept that completely. However, I hope that there is an equal realisation that we do not sit here to waste our time and pass legislation that only looks good on paper, and simply gives everyone the nice warm feeling that we are doing something about the issues that inflict such damage on our communities.

As we go through the winter spending hours on the Bill, we should be trying to make law enforcement much more effective than it has been to date. I remind the hon. Gentleman that it is perfectly justifiable to say that such enforcement has not been very effective in recovering the proceeds of crime, compared with the powers that other countries have taken and used to make a considerable dent in the profitability of criminal activity there. We should bear both sides in mind when we discuss the issues. No one wants to take powers that are not proportionate to the problem, but we are not here to waste our time.

Mrs. Annette L. Brooke (Mid-Dorset and North Poole): I ask this question in genuine innocence. In what way does the Minister suggest that the amendment would weaken the legislation? His reasons are not coming out clearly. I can see some arguments for it, and despite his robust response, the Minister has not told us why the amendment would weaken the Bill.

Mr. Ainsworth: I am happy to do that, and will move on to it, but when I am repeatedly told how draconian, awful and utterly uncalled for the legislation is, Members should expect some retort, and some justification of what lies behind the Bill.

Mr. David Wilshire (Spelthorne): We seem to have reverted to earlier attitudes, which I find unfortunate. There is no disagreement between the Minister and the Opposition that we must do something. However, when he tries to say that just because we must do something, what the Government suggest is the only thing that we can do, that is when we part company. Does he accept that we do not deny that we must do something, simply because we disagree with what he is trying to do?

Mr. Ainsworth: No, I do not want to say that at all. If the hon. Gentleman introduced proposals that would make the legislation even more workable and effective, I would be happy to hear about them.

Mr. Ian Davidson (Glasgow, Pollok): Does the Minister agree that if the Opposition parties continually table amendments that would weaken the legislation, we are entitled to assume that they want to weaken the legislation? If they want to make it work better by introducing proposals that would make the Bill tougher, more precise or more exact, we would examine them in that spirit, but the fact that they are always producing weakening amendments leads us to believe that they are yet again on the side of the collaborators rather than the innocents.

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Mr. Ainsworth: I was trying to make part of that point in my response to the hon. Member for Spelthorne, although my hon. Friend makes it in his own way, and perhaps goes a little further than I would; that is in line with the constant allegation that I am a big Mr. Softy.

Mr. Hawkins: The Minister will accept that we are entitled to raise our queries and he is entitled, as he puts it, to retort. Usually the battle is between the Minister, my hon. Friend the Member for Beaconsfield and me, and it would be difficult to imagine a more moderate and reasonable way than the one in which the hon. Member for Lewes moved the amendment, as Hansard will show. He did not accuse the Minister of being draconian or anything else, which is an allegation that Opposition Members have sometimes made with regard to other issues. He moved the amendment in a moderate and reasonable way, as I hope I did when I supported him.

Mr. Ainsworth: As ever, yet another amendment—

Mr. Davidson: Will the Minister give way?

Mr. Ainsworth: If my hon. Friend will forgive me, let us move on, as we are making no headway on the issue, and I am still trying to answer the question asked by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke).

Information that is obtained through a disclosure order will greatly assist the director to determine whether particular property may be recoverable. It may also help the director to establish the good arguable case that he requires for an interim receivership order, and the stronger case that is needed to achieve success at the substantive civil recovery hearing. The disclosure order will require a person to provide information relevant to the investigation for which the order is sought. The information sought must be of substantive value to the investigation.

Some information may not be directly connected to determining whether the property concerned is recoverable, but it is still relevant and of substantive value. For example, an order may be requested in relation to a person's financial affairs, which may have a bearing on the provenance of recoverable property. Such information would not necessarily be directly connected with the property itself, but could still be of substantive value to the investigation. It is self-evident that the order is intrusive. There is no need for any great confession; we do not deny that in any way. Anyone who considers the power accepts that it is intrusive. For that reason, the Bill contains several conditions that relate to the application of the disclosure order, which will ensure that it is used appropriately and proportionately.

Norman Baker: I am glad that the Minister accepts that the order is intrusive, which is the word used in the explanatory notes. However, does he accept that under clause 347(2)(b), many people of many different types, who may be completely unconnected with any criminal activities, may be caught and required to provide information?

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Mr. Ainsworth: Yes, but let us consider how the powers will be used and the justification that will be needed in the first place. Under subsection (2), which relates to confiscation investigations,

    There must be reasonable grounds for suspecting that . . . the person specified in the application for the order has benefited from his criminal conduct.

For the civil recovery investigation,

    There must be reasonable grounds for suspecting that . . . the property specified in the application for the order is recoverable property or associated property.

Those provisos are already included in part 2 and part 5.

Under subsection (3), there is a requirement that

    There must be reasonable grounds for believing that information . . . is likely to be of substantial value . . . to the investigation.

The further safeguard is that the Human Rights Act 1998 requires a judge not to act in a way that is incompatible with convention rights. For example, the director will have to satisfy the judge that an infringement of a person's right to privacy under article 8 of the convention is proportionate to the benefit to be gained from making the order.

In civil recovery investigations, the information sought by the director through a disclosure order is likely to be connected to determining whether the property held by someone is recoverable. That is the basic purpose of the civil recovery investigation. It may also relate to information about unlawful conduct through which the property was obtained. However, the information may not relate to both issues, as the amendment would require.

When the recoverable property represents the original property, it may be several stages removed from the unlawful conduct through which the property was originally obtained. Intricate measures may have been taken to conceal the origins of the property. In such cases, it is unlikely that the order would reveal information connected to the unlawful conduct itself. None the less, it may provide information of substantial value that related to whether the property was recoverable, or, indeed, whether it was associated property. The amendment would mean that the director would not be able to apply for a disclosure order in such cases.

The amendment refers to information directly connected to an offence through which recoverable property was obtained. That could be taken to imply that there must be a link between the recoverable property and a specific offence. As we said when discussing part 5, that will not often be the case. Disclosure orders used by the director will not be used in run-of-the-mill confiscation cases. They will be used in complex cases that are taken on by the director and involve confiscation or civil recovery.

As I said earlier, I am talking not about thousands of such cases, but an agency that is targeting particular areas where it feels that it can bring a difficult-to-mount civil recovery case. We shall not be dealing with simple cases in which it would be dead easy to tie back the property to the original offence. The property obtained through unlawful conduct should not have to be linked to a specific offence. It is not necessary to

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show that the property was obtained through a particular kind of unlawful conduct, so long as it can be shown to have been obtained through unlawful conduct of one kind or another.

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