Proceeds of Crime Bill

– in a Public Bill Committee am ar 22 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

[Mr. Roger Gale in the Chair]

Amendment proposed [20 November]: No. 24, in page 5, line 37, to leave out the word `must' and to insert the word `may'-[Norman Baker.]

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

I remind the Committee that with this we are taking the following amendments: No. 51, in page 5, line 37, leave out

`make the following four assumptions'

and insert

`follow the following four criteria'.

No. 52, in page 5, line 41, leave out `assumption' and insert `criterion'.

No. 53, in page 6, line 1, leave out `assumption' and insert `criterion'.

No. 54, in page 6, line 5, leave out `assumption' and insert `criterion'.

No. 55, in page 6, line 8, leave out `assumption' and insert `criterion'.

No. 56, in page 6, line 11, leave out `make a required assumption' and insert `follow any such criterion'.

No. 26, in page 6, line 13, leave out paragraph (a) and insert-

`(a) The Director does not lead sufficient evidence to establish the assumption on the balance of probabilities; or

(aa) The defendant leads evidence to entitle the court to refuse to make the assumption; or'.

No. 34, in page 6, line 13, leave out paragraph (a) and insert-

`(a) the defendant adduces evidence which is sufficient to raise an issue with respect to the matter and the prosecution fails to prove its case on the matter.'.

No. 57, in page 6, line 13, leave out

`assumption is shown to be incorrect'

and insert

`criterion is shown to be inapplicable'.

No. 58, in page 6, line 14, leave out `assumption were made' and insert `criterion were followed'

No. 76, in page 6, line 14, at end insert-

`(c) there is no rational connection between the facts proved in proceedings leading to the trigger convictions and the facts adduced for consideration of the assumptions.'.

No. 59, in page 6, line 15, leave out from `not' to `it' and insert

`follow one or more of such criteria'.

Question again proposed, That the amendment be made.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party 8:55, 22 Tachwedd 2001

Good morning, ladies and gentlemen. As Mr. McWilliam said at our previous sitting, given the change in the grouping of amendments during the debate on Tuesday, the Chair will accept Divisions, if necessary, on amendments Nos. 26, 34 and 76 in addition to amendment No. 24.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I assure the Minister that I shall not press amendments Nos. 24 and 26 to a Division. I was pleased to hear him refer on Tuesday afternoon to his idealism. He said that he genuinely wanted to make a step change. I believe that his motives are laudable. He wants to make a difference while he is in office. That has been the cry of Ministers down the years. Some succeed; others do not. I caution the hon. Gentleman, however, that in his desire to make a difference, he should not always to seek to write the judiciary out of the script. It is tempting to say, ``Here is an obstacle to my objective, and I shall just move it out of the way.'' That attitude lead to Lady Thatcher abolishing the GLC-[Interruption.] I believe that Conservative Members are agreeing with my analysis.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

On a point of order, Mr. Gale. Surely the acoustics in the Room are good enough for the hon. Gentleman to hear my hon. Friends and me objecting to his remarks, and saying that abolishing the GLC was one of Lady Thatcher's wisest decisions.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

I am not entirely sure that that is a point of order for the Chair.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I draw to the Minister's attention the fact that yesterday we had an extremely interesting debate on the Anti-Terrorism, Crime and Security Bill. One of its clauses was headed ``Exclusion of legal proceedings''-a drastic title-and he will have noted that about 30 of his Labour colleagues decided that that was a step too far. However, it is important to be honest, and I must say that the Minister made a persuasive case when he responded to the amendment. I was especially pleased with his assurance about the balance of probabilities. It is important to say when one is convinced of an argument, so that when one is not it carries more weight. On the basis of the Minister's persuasive argument, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I beg to move amendment No. 25, in page 6, line 1, after `property', insert

`transferred to the defendant after the relevant day and'.

The amendment is relatively simple, and I look forward to the Minister responding to it positively. It is an attempt to tighten the wording under subsection (3) to ensure that it has no unintended effect and specifies the period to which the clause relates. As drafted, the Bill has the capacity to confiscate property that has no feasible connections with a criminal lifestyle, notwithstanding the fact that the burden of proof is on the defendant to displace the assumption when it could be applied to property that has been in his family for generations.

The phrase ``the relevant day'' appears throughout the clause, including in subsections (2) and (4), but not in subsection (3). Why is it missing from that subsection? That might be a drafting error. Subsection (3) is unnecessarily wide and could have an unintended effect. Does the Minister share my view?

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

Before I speak to the amendment, may I echo the comments of the hon. Member for Lewes (Norman Baker) on the previous group of amendments?

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

Given that we may not have a stand part debate, I shall talk about the general concept to which the amendment relates. Conservative Members appreciate that on Tuesday afternoon the Minister gave a serious response, although we do not agree with everything that he said. I understand that although the amendment was moved by the hon. Member for Lewes, because his name was first on the amendment paper, it is open to Conservative Members to ask for a separate vote on amendments that relate to the word ``criterion'' before we reach the stand part debate. Am I right in that understanding, in light of your earlier ruling, Mr. Gale?

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

I thought that I had clarified the position at the start of this morning's sitting. In case any hon. Members were not present and did not hear that announcement, Mr. McWilliam has made it plain, and I have agreed, that if necessary there will be separate Divisions on amendments Nos. 26, 34 and 76.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

That was what I thought that I heard you say, Mr. Gale. I was present, and I did hear you, but I wanted to clarify my understanding. Conservative Members will ask for separate votes.

On amendment No. 25, we share the anxieties that the hon. Member for Lewes described. Once again, the reputable organisation Liberty has expressed anxieties about the provision. In suggesting the wording of amendment No. 25, it said that there should be an opportunity to prevent the assumptions-if, as the hon. Member for Lewes says, we are still using the word ``assumptions''-from applying to property that has been in the defendant's possession for more than six years. That relates to one of our discussions on Tuesday afternoon, and I believe, Mr. Gale, that it was one of the reasons that led your co-Chairman, Mr. McWilliam, to alter the grouping of the amendments. Like Liberty, we are worried that the Bill allows the confiscation of property that has no feasible or rational connection to the alleged so-called ``criminal lifestyle''-a phrase with which we do not agree, but it appears in the Bill-which would trigger the confiscation procedure.

I do not want to go back over old ground, Mr. Gale, and you would stop me if I did. However, I must point out to Labour Members that we have a perfectly genuine anxiety. In his remarks on Tuesday afternoon, the Minister understood that we were raising serious matters, although he did not agree with us about them. We are suggesting that if we align the second assumption to the same time scale as property transfers in subsection (2), and expenditure in subsection (4), the rational basis for making assumptions will be further enforced.

All Committee members want to ensure that the Bill makes a rational and proportionate response. We are not trying to undermine its purpose, but we do not want injustice. We want some rationality. I do not want to labour the point, so that is all I want to say about the amendment; I agree with the comments of the hon. Member for Lewes.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The amendment would apply the assumptions-or criteria, as Opposition Members prefer to call them-only to property transferred to the defendant less than six years before proceedings commenced. The Bill allows us to make the assumptions about property held by a defendant without any need to show when it was received.

A fundamental characteristic of the Bill's criminal lifestyle confiscation procedure is that the court recovers the proceeds of a defendant's criminal conduct-not his ancestors' criminal conduct-which may have taken place at any time. The amendment would place beyond confiscation proceeds that were received more than six years before proceedings commenced. The Opposition seek what amounts to an amnesty for all proceeds gained more than six years before proceedings commence. We do not think that that is acceptable. In every case, the director or prosecutor would have to prove that the property had been received or spent by the defendant in the six years before proceedings commenced.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I am slightly worried by the Minister's response. The onus is on the person who is assumed to have received the proceeds of crime. Is that person not being set a very high test if he or she wishes to demonstrate that what the prosecuting authorities believe to be the proceeds of crime was acquired legitimately, perhaps 25 or 30 years ago? It would be difficult for the person charged to prove that he or she acquired that property legitimately, given the time span.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I assure the hon. Gentleman that subsection (3) replicates the law as it applies now; we have not changed it. We have not made an error in drafting the passage, as he suggests. The amendment would create a burden to disregard the assumptions in the case of property acquired six years before proceedings commence. I do not know whether the hon. Gentleman intends that all such property should be put beyond the Bill's reach, and that there should be an amnesty-but that would be the consequence of his amendment.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I hear what the Minister says. I accept that subsection (3) replicates wording that already exists, but I would be grateful if he would respond to the thrust of my previous intervention.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The assumptions do not require a defendant to prove that property that left his ownership more than six years ago was not the proceeds of crime. They require that he prove that property in his possession is not the proceeds of crime, no matter how long ago he received it.

Mr. Hawkins rose-

Mr. Dominic Grieve (Beaconsfield) rose-

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I am not sure whether my hon. Friend and I were going to make the same point, but the Minister's use of the word ``amnesty'' is both somewhat inaccurate and somewhat provocative, because we do not think of the issue in that way. The Minister may have genuinely failed to understand our argument. I accept what he said about replicating current provisions, but the Bill introduces wider powers and much more draconian arrangements, so it is no good answering that the same wording was used in previous legislation.

The Bill puts the burden on the defendant. Courts commonly use a six-year limitations period when considering events. Does the Minister not understand that it is difficult for any defendant to prove what happened more than six years ago?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

No, I do not accept that. Every time an amendment is moved to make the confiscation of proceeds of crime more difficult, the excuse for that, and the reason for not replicating the existing legislation, is that the provision in the Bill can no longer be enforced because the process is wider than before. Repeatedly, amendments are moved that would make the confiscation of proceeds of crime more difficult, rather than easier. The hon. Gentleman is right to say that we want to give power to the courts and, in some cases, guide the courts about what they should do when confiscating proceeds of crime. We want the courts to apply such powers widely to all proceeds of crime.

We are tightening the provisions of existing legislation when that is justified, and when we do not believe that that is necessary, we are replicating existing legislation. There are one or two provisions in the Bill through which we are making things clearer and strengthening the provisions that are applied to the defendant. However, we are not making the confiscation of proceeds of crime more difficult. I am sorry that the hon. Gentleman considers my use of the word ``amnesty'' provocative, but that would be the effect of the amendment.

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Hall Green

The curious thing is that unless the hon. Member for Surrey Heath is a serial collector, what he said is utterly absurd. The concept that any individual, particularly an individual with a bank of accountants and solicitors at their disposal, could not account for their acquisitions of significant value over six years is utterly absurd. Is there any prospect that any person in this country could not account for where they acquired goods of a reasonable value?

Mr. Grieve rose-

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Hall Green

Perhaps the hon. Gentleman is a serial collector, too, and has so many goods that he cannot account for them. However, that is not typical of most people.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

My hon. Friend-and the Opposition-should not forget that the Bill provides that the court must bear any risk of serious injustice in mind.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The Minister is missing the point. There are currently legal requirements for individuals to keep records-in respect of the Inland Revenue. The period for which records are required to be kept is six years prior to a particular date. It is unlikely that accountants, or anybody, will have information from before that. The Minister has a sort of fail-safe device, because subsection (6)(b) allows discretion if

``there would be a serious risk of injustice if the assumption were made.''

I fail to see how anything beyond the six-year period would not fall foul of that provision in any event. I will be interested to hear the Minister reconcile that with the provisions of subsection (3).

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The court may use the provisions in subsection (6)(b). It can say that it will not make the assumptions because to do that would cause a serious risk of injustice. That is what courts may do under current legislation. [Interruption.] I am perturbed that hon. Members continue to be outraged by my opinions.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 9:15, 22 Tachwedd 2001

May I try once more to explain the matter to the Minister, and end his perturbation? We are not outraged but mystified that he does not understand our point. When he responded to the hon. Member for Birmingham, Hall Green (Mr. McCabe) and me, he said that the Opposition were constantly trying to protect the proceeds of crime. In this case, the Minister has made an assumption that the assets have already been established as the proceeds of crime. However, we are saying that at that point it has not been established that they are the proceeds of crime-and the onus is on the defendant to show that they are not. Therefore, the Minister cannot make that assumption-and if the hon. Member for Birmingham, Hall Green thinks that everyone keeps records that stretch back more than six years, he must have a much larger filing cabinet in his house than I have in mine.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I realise that the hon. Member for Beaconsfield (Mr. Grieve) has other business to attend to in the House, which is why he was in and out of the Committee on Tuesday, but I thought that I had explained the Government's intentions clearly.

There is a reverse burden on people who have criminal lifestyles. They are required to be able to rebut the assumptions-although safeguards with regard to that are provided in subsection (6). I have consistently said that that is our intention; I am not trying to deny it. I continue to be surprised that the Opposition fail to connect with the idea that criminals are adept at concealing the criminal origin of their property. Often, there is no paper trail; their property may materialise out of nowhere, with no indication of the date when they received it, and the prosecutor can prove only that it is owned by the defendant.

The effect of the amendment would be to make it difficult, in many cases, to confiscate the proceedings of crime; it would provide an amnesty for any property received. The hon. Member for Surrey Heath shakes his head, but I am right. I therefore ask the hon. Member for Lewes to withdraw the amendment, and if he does not, I ask Labour Members to vote against it.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I understand the Minister's point, but he has failed to respond to ours-although I am unsure whether that was deliberate. Therefore I will briefly spell out the difference between the old and the new regimes.

Paragraph 4 of the explanatory notes to the Bill contains a definition of the existing regime:-

``Confiscation orders are available following a conviction. The purpose of confiscation proceedings is to recover the financial benefit that the offender has obtained from his criminal conduct. The court calculates the value of that benefit and orders the offender to pay an equivalent sum . . . Proceedings are conducted according to the civil standard of proof, i.e. on the balance of probabilities. In certain circumstances the court is empowered to assume that the defendant's assets, and his income and expenditure from any time after six years before proceedings were brought, have been derived from criminal conduct and to calculate the confiscation order accordingly.''

Therefore, the existing regime is ultimately controlled by the nature of the offence for which a person has been convicted. I do not think that the Minister will disagree with that, but, if I have got it wrong, I hope that he will correct me-[Interruption.]

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. I know that it is occasionally necessary for the usual channels to communicate with those on the Back Benches, but I cannot allow private conversations to take place in the Committee.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

As I was saying, the existing structure is controlled by the nature of the offence. I accept that it is possible-and desirable-for the court to go back and look at many other assets, but ultimately, the lack of connection with the offence for which the person is being convicted will mean that those assets are unlikely to be seized.

However, the Minister wants to provide a much wider structure. He does not want merely to look at the assets that are in some way connected with the offence for which the person has been convicted-as happens now. The convictions are merely a trigger mechanism for a much wider confiscatory framework that will enable a person to be branded as having a criminal lifestyle, at which point all his assets, irrespective of whether they appear to have an immediate causal link with the offence for which he has been convicted, can be removed. The Minister has never disagreed with the idea that it would therefore be possible, when a serious criminal had escaped all convictions except minor ones, to use those minor convictions, which appeared totally unrelated to his assets, as the trigger to get to those assets. I have no disagreement with that, but that is the prospect that we are dealing with.

Given how wide-ranging the power will be, there appears to be a serious danger that an injustice could be committed. The Minister may say that he does not really mind if an injustice is committed, because somebody who has been labelled as criminal is of no concern to him. [Hon. Members: ``Shame.''] The tone of some of the comments during this debate has suggested that once one has passed the threshold of being branded for one's criminal lifestyle, one is a lower form of life, which should be stamped on. I am all in favour of stamping on some people, but even lower forms of animal life are entitled to some form of safeguard, and I do not think that those who drafted the Bill intended to confiscate assets other than those that were criminally acquired.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

But then the draftsman has included provisions such as subsection (3), which, given the nature of the evidence available and the reverse burden of proof, must make it extremely likely that exactly that will happen. The Minister, and one or two other hon. Members, say that solicitors and accountants will be involved, but with the reverse burden of proof, proving or showing where an asset that may have been given to him or legitimately acquired 20 years ago, came from, will be astonishingly difficult for the person on whom that burden has been placed-[Interruption.] If the hon. Member for Birmingham, Hall Green has something to say, I shall give way to him.

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Hall Green

I was simply making the point that if the article in question is of value, why should it be so difficult to prove where it came from? Does everybody have a succession of hidden aunties, who disappear off the face of the globe after distributing their largesse? That is extremely unlikely. Someone who has an article of real value should be able to give a reasonable plausible explanation of how they acquired it. Why is that an outrageous assumption?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Let us take two examples. The first is a chattel-a valuable item such as a painting or silver, which I accept are much used for money laundering. If somebody asked me for the proof of how and where I acquired a valuable item 15 years ago, I might be able to say where I got it from, but I would have great difficulty providing documentary evidence of the transaction to support what I said. The receipt is likely to have gone into the bin some time ago. The other problem that would arise is that the person from whom I purchased it, who would be the next point of reference, would also be unlikely to have supporting documentary evidence. My loft is already overburdened with stashes of tax papers from every year that I practised as a barrister, and I cannot describe the moment of happiness when, the seven years having expired, I take a year's papers outside and put them in the bin. Each one is labelled year by year, because otherwise, the loft would be full of mounds of paper that were used as the basis for my tax return in any given year. People do get rid of their papers legitimately.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

It might not be only my hon. Friend's loft that was full after for seven, eight or nine years: the contents of my loft would fall through to the ground floor if I did not clear it out.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Indeed. People do not keep documents indefinitely. Yet, the provision places a burden on someone to show that assets were inherited or given to them 25 or 30 years earlier.

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Hall Green

Unless I have misread the Bill, there is no requirement to produce a receipt, merely to provide a plausible explanation of when the goods were received. Let us suppose that the hon. Gentleman brought a painting 20 years ago. Even if he could not produce the relevant receipt because he had chucked it out, it would be possible to contact the reputable dealer who had sold the painting to him.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

That is not necessarily so. I have been involved in family law cases and tried to find out from where various assets came. I know from such experiences how difficult it is to obtain the material to prove the origin of certain assets. That is a fact of human life. If the assets were obtained six months ago, there would be no problem, but if they were obtained eight, nine or 10 years ago people would be at a disadvantage. The records of such transactions are not always easily obtainable.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I shall cite an example that may assist my hon. Friend, and might even convince the hon. Member for Birmingham, Hall Green of our argument. Members of Parliament are often asked by their constituents to take a matter up on their behalf. We ask them whether they have the paperwork to support their case, and even if it goes back only six months or a year, the constituents often reply, ``I'm terribly sorry, but I don't keep anything like that.'' I am referring to matters that are important enough to be brought to the attention of a Member of Parliament.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Let us suppose that a person has £20,000 in a bank account-a nest egg built up as a result of income from employment. He has received his P45s, and the salary has been going into his account, but the last time a payment was made was 12 or 15 years ago. From my knowledge of banks, that person is likely to have considerable difficulty obtaining the bank statements from 15 years ago to show that the money was legitimately paid into his bank by his employer. Unless he had kept the statements, he would have great difficulty in proving his case.

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Hall Green

I am sorry to keep arguing the point, but the hon. Gentleman is being absurd. No one expects the individual to produce a receipt. It would be possible to contact the employer, who could say that the money was paid legitimately. Why is so difficult for the hon. Gentleman to accept that what is required is a reasonable level of proof?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The employer would not have the slightest idea whether that money was the money he had paid to the employee.

Photo of Tom Harris Tom Harris Llafur, Glasgow Cathcart

I accept that the hon. Gentleman is outlining his genuine concerns, and I know that Opposition Members do not support such criminals or want to protect them. However, many drug barons-Mr. Bigs-have benefited from the proceeds of crime for 20 or 30 years and have built up a stockpile of wealth. Does the hon. Gentleman want to do something about that accumulated wealth? If he is against the clause, can he suggest an alternative?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 9:30, 22 Tachwedd 2001

The hon. Gentleman makes a good point. I hope that he will forgive me for saying that this is exactly the type of dialogue that members of the Committee should have. I accept the Minister's point that the demerit of the amendment might be that it could shift the goalposts too far in the other direction, so that the clause might not allow the seizure of long-standing assets, and someone who had conducted 20 or 30 years of criminal activity would escape.

Is there a further option? The Minister said that there was a provision in subsection (6) that the court need not make assumptions if there were a serious risk of injustice. I shall put myself in a judicial capacity, and say that it will be difficult for a court to seize any assets that can be shown to predate a seven-year acquisition period, because if a person says, ``These were legitimately acquired, but I haven't got the records'', any court will have difficulty unless-to pick up what the hon. Member for Glasgow, Cathcart (Mr. Harris) said-the assets are disproportionate to the person's lifestyle compared with his career history. That is what we are trying to flag up.

The Minister may be ingenious and identify a third way-to use the Labour party's usual mantra-that may help us, but we tabled the amendment to highlight potential difficulty and injustice. That is why I wish that the Minister would engage in constructive dialogue, rather than telling us that we are weakening the powers that can be used against criminals.

Photo of Mark Field Mark Field Ceidwadwyr, Cities of London and Westminster

I have taken on board the suggestions of the hon. Members for Glasgow, Cathcart and for Birmingham, Hall Green. I fully appreciate what my hon. Friend the Member for Beaconsfield said about wanting a structure that will ensure that criminals have their money swept up. Subsection (3) is a sweeping-up provision for use when we know that people have done wrong but we cannot get hold of all the assets. There is suspicion that assets have been salted away, even over the previous six years, so there is a draconian sweeping-up provision. Many libertarians are worried about whether it is right to go down that road. If the Bill is enacted in its current form, such provisions will be regarded as normal practice. There will be a reverse burden of proof, and it will be implied that all individuals should be entirely happy to make clear all their transactions to the state. If people do not do that, there will be immediate reverse suspicion, as it were. Conservative Members-and, I hope, Labour Members-have deep concerns about the law moving in such a direction.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I agree with my hon. Friend. We are not examining the confiscation mechanism in isolation because later-I am not sure when-we will consider civil recovery. That is a sensible way for the state to recover a person's ill-gotten gains that stretch back over years. We will want to examine the civil recovery proposals in greater detail, but I find them interesting.

The confiscation provisions are onerous for the defendant, and can be triggered by several events-by a series of offences stretching over a period, or by a single offence. It would be difficult to administer the system fairly when examining assets that the evidence suggested first appeared a long time ago. That is a problem.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

The hon. Gentleman makes an interesting case, and is trying to persuade the Minister to look for a third way. Why does he think that the way outlined in the Bill is wrong? The evidential burden is placed on the criminal for two good reasons: first, because he is a criminal, and secondly, because if it is hard for the criminal to prove the origin of his goods, it is inevitably harder for the state to do so-after all, it is the criminal who receives, imports, or inherits the goods.

We have a backstop in the discretion vested in the court by subsection (6), which allows courts not to make the assumption if

``(a) the assumption is shown to be incorrect, or

(b) there would be a serious risk of injustice''.

What is wrong with that structure?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I accept that there is a welcome safeguard in subsection (6), and I am glad of it. Nevertheless, it is pointless for Parliament to set up a structure that is always in danger of falling into the ``serious risk of injustice'' category because of the way in which it is defined. We are not intended to set up such structures; nor is the Minister.

There are difficulties with a reverse burden of proof. It requires a defendant to prove the legitimate acquisition of assets that were gained before the period in which he is under a legal obligation to keep records about those assets. I am not saying that the amendment provides the solution. Perhaps, as a result of our discussion, we shall think again and return to the subject on Report. I welcome this discussion, and it would be helpful if the Minister were either to persuade me that there is no problem, or to acknowledge that there is, and say that he will think about it.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I have heard one or two things that cause me concern. The hon. Member for Wellingborough (Mr. Stinchcombe) argued that once it became impossible for the state to prove something, the state would make the assumption that the defendant was guilty. I should be very worried by such a precedent.

I was also concerned when the Minister said that he thought that we were arguing for an amnesty, as though anyone who argues for an amnesty is wrong. Some of us made that point about convicted criminals in Northern Ireland. Sometimes amnesties seem a good thing to the Minister, and sometimes they seem bad. We should put aside his argument, as it seems to be a subjective judgment and not a matter of fact.

Perhaps the Minister, like my hon. Friend the Member for Beaconsfield, is so locked into consideration of the Bill that events elsewhere in this Palace have escaped his notice, but this is a week for striking a balance, and that is relevant to the amendment. We have heard the Secretary of State for Transport, Local Government and the Regions say that we must strike a balance between the interests of the aviation industry and local people in connection with terminal 5-I see the look on your face, Mr. Gale, so I shall not pursue the subject any further, except to say that it gives us an example of striking a balance from earlier this week.

I listened yesterday to the Home Secretary arguing at some length that a balance had to be struck between protecting British people against terrorism and protecting those who might be guilty of terrorism although the state could not prove it. We have to strike a balance-that look is coming over your face again, Mr. Gale, so I shall not speak further about the anti-terrorism legislation. I shall speak instead about the need to strike a balance in the Bill.

Even someone who has been convicted of criminal activity-they may or may not be a lesser form of life; I do not want to enter that debate-is a human being who is entitled to the same fundamental rights as the rest of us, irrespective of what he has done. If we follow the doctrine that if one offends against society, one loses one's rights, we will build a society in which I would not wish to live, and in which I would not wish to condemn other people to live. We must find a balance. I accept and support the Government's objective of finding a mechanism for capturing the huge amounts of money being made from dealing in drugs, but that must not be pursued to the point at which we trample on individual's rights.

There comes a point at which one can no longer reasonably say, ``You are guilty until you prove yourself innocent. We will assume that you made this money illegally, unless you can show us otherwise.'' Various people have tried to explain that. I, too, have run small businesses over the years, and if the Government wanted to sweep up all the profit that I had ever made, it would not dent the national debt by more than a fraction of a millipenny. Nevertheless, the amount of paperwork generated over those years had to be got rid of. There is no point in anyone saying to me, ``What profit did you make 15 years ago? Where did you acquire the goods from? Who did you sell them to?'' I will no longer have the slightest notion, and the law has never required me to.

I shall suggest some examples that show why there must come such a point-six years seems sensible. My examples are small beer, but they can be scaled up. My father, who died 34 years ago, left me some shares. I probably can no longer tell you exactly what they were-I could have a stab at it, but I cannot say how many there were. Over subsequent years, some of them have made a profit and been sold, and the money has been reinvested. However, I cannot not say how much profit was made. During those years, there have been occasions when I have earned enough in a year to buy shares of my own. I can no longer say exactly which shares those were, either. Some of them have made a profit, and I have taken that profit and reinvested it. I have no doubt-although I cannot prove it, and nobody else can prove it-that there will have been occasions during those 34 years when I have taken some profit from shares that I was given, and some from shares that I have bought, and used the joint money to buy something else.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

Yes, I shall sell some shares before next week and try to humour the hon. Gentleman if I can. Even with the Government's confiscatory regime, I may have some assets left, but not for long.

To return to my point, I will now have in my possession, or will have had and sold, some assets that came from my father, and some that I acquired myself. There is no way on this earth that I will be able to say which are which. If one scales that up to the example of drug money, some of which came from here and some from there a long time ago-some of which was innocent and some guilty, some legitimate and some not-I defy somebody to be able to demonstrate, 34 years later, which came from where, and what was acquired how. If that cannot be done, and the Government therefore say, ``We'll take the lot,'' we will have committed an injustice to somebody who has a right to justice.

Photo of Ian Lucas Ian Lucas Llafur, Wrecsam

Does the hon. Gentleman not accept that if, in the extremely unlikely event of his conviction, he gave a judge the description of the purchase and sale of shares that he has just given, the judge would agree that it was more likely than not-

Photo of Ian Lucas Ian Lucas Llafur, Wrecsam

-that those shares and that money had been lawfully obtained.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

If we take my example of one element of criminality-one asset from an innocent source and one from a guilty source-one of those two would have been obtained through criminal activity and the other would not. Therefore, the judge could not say that the whole lot had been obtained through criminal activity, because there would be an admission that part of it was criminal and part of it was innocent. If I understand the Bill correctly, in the absence of a restriction on that blanket power, the court will say, ``Sorry, it is up to you to prove which bit has come from an innocent source, and you cannot do that, so we will assume that the whole lot is from a guilty source''. The court will take everything; that is what worries me. If that is not what the Bill proposes, the amendment-or a similar one-would make sense.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

Thank you, Mr. Gale.

My mother died a few weeks ago. My father died about 30 years ago, and there is much that I do not know about the intervening period. I am now dealing with my mother's assets, and the property that she acquired. I know where some things came from; I can remember, even though I might not have seen them for 30 years. However, I am also discovering that I have no idea about where other items-such as, interestingly, a couple of pictures-came from. It would be ridiculous to suggest that I could find out where she bought one of those pictures. How many art dealers are there in London, or in the rest of the United Kingdom, or in the world? If I cannot find the paperwork, how do I know where to go? How do I know where any of those things came from? I cannot ask my mother, and her papers are in such a disorganised state that it is not possible to go through them to discover the sources.

Photo of Mark Lazarowicz Mark Lazarowicz Labour/Co-operative, Edinburgh North and Leith

The hon. Gentleman is outlining a complex set of possibilities that might lead to the provisions of the Bill being applied to him. However, he has ignored an overriding criterion: they would apply to him only if he were a convicted criminal. Is he a criminal?

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I am using a personal family situation as an example. I am not a lawyer, so I need to start with something I understand, such as my complex family arrangements. I will explain shortly how my example highlights some of my concerns about the Bill.

Photo of Stephen Hesford Stephen Hesford Llafur, Wirral West

The provision is not targeted at the hon. Gentleman's family. It is intended to deal with criminals, and people choose to be criminals. I could reverse the example. In my experience, drug barons know very well where their assets come from. They keep copious records of their drugs and their money. The only problem is that they refuse to tell the prosecution authorities about them. If criminals want their legitimate and their criminal assets to be separated, they can bring their records to court.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

Some drug barons who are arrested and taken to court might have copious notes about where their assets came from, but I can also imagine that some drug dealers might not. It appears that the doctrine now is not only ``You must prove where you got it from or you are guilty'', but ``We will assume that you do have paperwork, even though you cannot find it and will not produce it. If you did produce it you could provide an answer, but because you do not have it and you will not produce it, we will assume that you are guilty''. If that is the case, a further step is being taken down the track of abusing human rights.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

The provision is not only targeted at drug barons. Laws already exist that are targeted at them. The provision is much broader; it will catch a huge swathe of people. Although a criminal obtains the proceeds of his crimes, that does not mean that all his property has been criminally obtained-but the legislation will deal with him as if it were.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I agree.

Before I was diverted, I was talking about people other than drug barons: I was talking about my mother, and I wish to return to that subject. I am sure that if she were listening, she would understand that some grannies are criminals. [Interruption.] I mean nothing personal.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

We shall ignore that.

Let us take my personal example of what I cannot, after 30 years, understand or explain in the case of one of my relatives. If the person's relationship to me were a formal, legal business partnership, at the moment of that person's death I would stand in the direct line of the entire partnership as far as the law, debts and property were concerned. In such circumstances, I might or might not be a criminal, but six, 10 or 30 years later I would suddenly find myself in the direct firing line for a whole set of transactions and bits and pieces of property, money and other things that I could not explain. I would be at risk of being branded as a party to criminal activity, because a partnership acts jointly.

The Minister shakes his head, but the phrase ``partners in crime'' can have a legal as well as a jargon meaning. Surely a time must come when natural justice suggests that if the benefit of the doubt is involved, we should not continue giving the state the benefit of that doubt for ever. Each of us in the Room could, if we thought about it, understand the problem clearly. I clutch a date from the air. Let us take 17 June this year. There is no reason why that date slips into my mind, but I defy anyone in the Room to write down in detail what they did throughout 17 June, even this year. If anyone wants to accept that challenge, I shall be fascinated.

Photo of Ian Lucas Ian Lucas Llafur, Wrecsam

Labour Members were celebrating Labour's glorious election victory.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

That illustrates my point, because the hon. Gentleman's recollection will have been so hazy, following the previous night's celebrations, that unless he is a teetotaller, his chance of remembering anything would be small. It had not even occurred to me that that was the relevance of 17 June; perhaps it is engraved on my mind.

Whatever the Government are trying to do, and however much I want to support them, a time must come when natural justice suggests that enough is enough. I hope that my hon. Friend the Member for Beaconsfield does not mind, but I readily accept that six years may not be the most accurate period to choose. The principle that we are driving at is that a point must come at which we can no longer make an assumption and say, ``We'll have the lot unless you can stop us.'' A point is reached at which the issue is not an amnesty but natural justice. On those grounds, I ask the Minister to reconsider and find out whether a better way of achieving what he wants might be found without trampling all over people.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I shall speak again at this stage, because issues that I did not deal with in my initial remarks were raised in interventions on my hon. Friend the Member for Beaconsfield, and it would have taken me too long to deal with them in a further intervention. I have something to say to the Minister, and other Labour Members, because it is important for the Minister to understand. Since 1997, Opposition Members have become familiar with a new authoritarian tendency in Labour Back Benchers and Ministers. It is especially prevalent in connection with provisions such as this.

The attitude seems to relate to any sort of wrongdoer-as my hon. Friend the Member for Spelthorne (Mr. Wilshire) said, we are not talking about drug barons alone. The provision can catch lots of other criminals. We all want to hit the Mr. Bigs and ensure that criminals have their criminal assets seized. We are not trying to undermine that, but even those with a criminal record are entitled to a minimum standard of justice. I hope that if the Minister comments further on the matter before we reach the end of the debate he will finally understand that we are not-

Mr. Foulkes rose-

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I shall give way to the Minister when I have finished my general point.

Those of us who were in the 1992-97 Parliament, which many members of the Committee were not, and in earlier Parliaments-my hon. Friend the Member for Spelthorne has longer experience than I, Mr. Gale, and so do you-got used to the fact that when we were in government, Labour Back Benchers, then in opposition, constantly attacked us, saying that the Tory party was far too authoritarian and wanted to lock up criminals and throw away the key. Suddenly, now that we have a Labour Government, that attitude seems to have been reversed. With this Home Office legislation, Labour Back Benchers are behaving as if we are in the realm of the trial of Joseph K, and once someone is a criminal anything could happen. The burden will be put on the defendant, even if he has no possible chance of demonstrating that some of his property is legitimate.

Mr. Foulkes rose-

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

Before I give way to the Minister, I shall cite one further example. A person may have turned to crime in later life. He may have spent 10 or 15 years in perfectly legitimate employment and acquired some assets. The employer may have gone bust and the wage slips may have long since gone into oblivion on both the employee's and the employer's side. Twenty or 30 years later, long after that legitimate employment, that person may fall within the remit of the Bill, and the evidential and the legal burden of proof will be on him to establish that the property is legitimate. He may say that he brought the property legitimately, but cannot produce the evidence.

If there were no documentary record of the transactions, how could he establish on the balance of probabilities that the property was legitimate? It is not good enough for Labour Members to say that Mr. Bigs keep records. They may keep records of their drug dealings, but they will not necessarily keep records of what they were doing legitimately 30 years ago, before they took to crime. I appreciate that some people have a lifetime of crime, but not everyone does. The Bill should ensure that the minimum civil rights even of those who have become criminals and fall within its purview are protected. It is extraordinary that so many Labour Members now seem to believe that the minute someone becomes a criminal, he has no rights and everything goes out of the window- [Interruption.] I shall give way to the Minister now.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I almost lost the will to live while the hon. Gentleman was speaking just then. His line seemed to be, ``Suddenly, there was a Labour Government''-but that is not what happened; I suffered under a Tory Government for 18 years. The hon. Members for Spelthorne and for Surrey Heath have both said that convicted criminals do not lose their rights. However, certain convicted criminals lose their right to vote. Some of them even lose their right to sit in the House of Commons-although sadly, criminals do not lose their right to sit in the House of Lords.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I realise that the Minister had to make his cheap political crack. I sometimes think better of the hon. Gentleman, and I know that he makes serious points, but that was one of his less serious.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

Despite the levity that is a part of Committee proceedings which we enjoy, I hope that my serious point will cause at least some Labour Members to reconsider. The hon. Member for Glasgow, Cathcart is not in the Room at the moment, but earlier he made one of the few serious interventions, and acknowledged the basis of the argument of my hon. Friend the Member for Beaconsfield. I hope that both Ministers, and particularly those who advise them, do that, too. We are not saying that the amendment is perfect. As my hon. Friend said, it may go too far the other way. I want Ministers to realise that their initial drafting goes too far against even the minimum civil rights. I hope that they will be willing to consider a third way.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 10:00, 22 Tachwedd 2001

Perhaps we can return to Bill and the effect of the amendment, and get away from the hon. Member for Spelthorne and his mum, and people being required to prove, seemingly beyond all reasonable doubt, that a particular transaction took place 30 years ago. [Interruption.] I will take interventions, but first, in order to move away from the fantasy and fiction that the Opposition have portrayed for the past few minutes, I will tell the Committee what the situation and procedure will be.

First, we are dealing with criminals. They are not a lower form of life and nobody is branding them as such-unless Conservative Members are, because they tend to be more disparaging about other human beings than I do. Criminals would stand in court following conviction. The assumptions deal with a criminal who has committed the offences or pattern of offences mentioned in clause 75, which show a criminal lifestyle-other hon. Members may want to change that phrase. As my hon. Friend the Member for Wirral, West (Stephen Hesford) said, we are not dealing with the general population, but with convicted criminals or criminals with a background of cases that justify the assumptions. We will also have a statement from the prosecutor or the director that details assets held by the criminal, not by his mum.

That is the starting point. With an earlier amendment, hon. Members tried, for reasons best know to themselves, to change the burden of proof. The convicted criminal will have to show the court, on the balance of probabilities, that the assets are not the proceeds of crime, but he will not have to show proof of a particular transaction from 25 years ago. Hon. Members say that we are trying to remove the discretion of the court. We are not doing that, because that is the court's purpose. We are reversing the burden of proof because the man or woman will have been convicted. A further reason for reversing the burden is that the defendant is the only person who knows the origin of the property, even if he cannot prove it.

Mr. Grieve rose-

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Hold on. I shall give way in a moment.

If the criminal can show that, on the balance of probabilities, it would be a serious injustice if was assumed that his property was the proceeds of crime-or show that, again on the balance of probabilities, it is not the proceeds of crime, the property will not be removed. If the hon. Member for Spelthorne had serious legitimate income, he would state that. That would be taken into account against convictions that showed that he had a criminal lifestyle. That is the procedure that will be followed, and it should not be suggested that we are trying to remove the court's discretion or to introduce an unreasonable test.

The Opposition's proposal would put any property that was gained over six years ago beyond reach. That would be an amnesty. The hon. Member for Spelthorne may be hurt about my use of that word because of the line that he has taken on other matters, but that is what the effect of the amendment would be.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The Minister's remarks were telling, because he implied that sometimes a criminal would know, but could not prove, where his legitimately acquired assets came from. That was the clear implication of his phraseology. I appreciate the Minister's point, but it therefore seems that sometimes injustice will occur because a person will know that he has a legitimate asset, but will not be able to prove that on the balance of probabilities. In such circumstances, money will be taken away. That is the direct result of reversing the burden of proof.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman knows that a criminal will not have to prove the facts about an asset beyond reasonable doubt. The hon. Member for Spelthorne suggested that proof beyond reasonable doubt would be required for an asset that was purchased with legitimate income 30 years ago, and the paperwork to show that would have to be kept. That is complete nonsense. I know that some hon. Gentlemen are disparaging about my ability to understand the concepts that they put before the Committee, but they know that the suggestion is nonsense. A person will have to show that property currently held is not the proceeds of crime. That is not an unreasonable request if a person has been convicted of a crime or a pattern of offences that suggests a criminal lifestyle. If that were reversed, the legislation would be rendered unworkable, and confiscation of substantial assets, about which the hon. Member for Beaconsfield wishes to rejoice, would not occur.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I originally wanted to intervene when the Minister said that only one person-the criminal-``does know'' where his assets come from, and he told my hon. Friend the Member for Beaconsfield that a criminal ``will know'' that. I think that Hansard will show that. I cannot accept what the Minister said. This weekend, I invite him to look at everything in his house and say, ``Do I know exactly where that came from? Do I know exactly who purchased it? Do I know exactly how much it cost?'' If he does not know that, he will understand my point.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman has inserted the word ``exactly'' and made reference to individual items. I know the origin of my income and how I pay for my assets. I know that, and I think that he does, too. A prosecutor would have great difficulty knowing that-he would find it practically impossible to know-as the hon. Gentleman will be aware.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

May I try to explain to the Minister? In order to make a case, even on the balance of probabilities, no Conservative Member has suggested that the defendant will be asked to prove the matter beyond reasonable doubt.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

No one implied it.

The court requires evidence, rather than mere assertion, to demonstrate the matter, even on the balance of probabilities. The Minister seems to fail to understand that. It is almost inconceivable that there would be evidence about property from years ago to raise even the balance of probabilities.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

We are discussing an amendment that would effectively put proceeds of crime that were attained prior to six years ago beyond the reach of the prosecuting authorities. I am not prepared to accept that. The amendment would cause serious damage. Appropriate safeguards are present that leave decisions in the hands of the court and, yes, the burden will be on the convicted criminal to show where his assets came from. I am not minded to accept the amendment.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I listened with care to the Minister's comments about the previous group of amendments and he convinced me that it was appropriate not to insist on them. However, I listened to his comments about this amendment and I am more convinced than ever that he failed to address a serious matter. That is beyond reasonable doubt, or even the balance of probabilities.

The hon. Member for Spelthorne mentioned balance, which is a matter on which the Committee agrees. Every member of the Committee wants to nail criminals and, I hope, is happy with the concept of seizing the proceeds of crime. I also hope that we all have a common cause to avoid injustice, such as innocent people being caught by the Bill and property that is not the proceeds of crime being seized. I hope that we all agree with that general concept. The issue is whether the wording in the Bill achieves those ends.

Hon. Members have referred to the Government's authoritarian tendency, which worries me, although Conservative Governments also had such a tendency-

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

The last Liberal Government in 1906 was a radical and forward-looking Administration, which introduced old-age pensions, top-rate tax, trade union rights-

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

Those, too. I am happy to concede that all Governments have a tendency to become more authoritarian. I do not understand why that happens, but it seems to be a natural occurrence. It is certainly happening in connection with this Bill. I hear plenty of voices clamouring to nail the criminal-there is nothing wrong with that-but I have not heard a single Government Member saying that we must ensure that injustice does not happen. I would be grateful to hear that from the Minister or some of his colleagues when they make their points in the round.

I am worried that the Bill may steamroller those people who are in receipt of the proceeds of crime, and stigmatise them in a way that may not be entirely justified. Yes, they are criminals, and they have proceeds of crime that should be seized, but that does not necessarily mean that all their property is the proceeds of crime. It will be difficult for a convicted criminal, who is probably a shady type and has proceeds of crime, to demonstrate that other property that he may have is not the proceeds of crime.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

He will not necessarily have to do that. He will have to present to the court evidence of legitimate income. How on earth can the hon. Gentleman say that we are not interested in whether serious injustice is done when that is exactly what the Bill says it wants to avoid?

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

The Minister will recall that I asked why the adjective ``serious'' had to be used, instead of simply referring to a risk of injustice, but I never received an explanation. However, I will let that pass.

I do not know how the Minister organises his financial affairs, but I tend to work on the basis that I keep what may be required by the Inland Revenue. I have therefore kept records going back seven years. I do not know whether that is accurate, but I believe that seven years is the Inland Revenue's requirement. If the Bill becomes law this year, it will contain a provision that goes back a long way into the past, although, because of the current understanding, people will not have kept records for more than seven years. The Bill is therefore retrospective in expecting people to have records that they will not have had to keep until now.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

The hon. Gentleman prefaced his remarks by saying that he wanted to confiscate property that was the proceeds of crime. Under the amendment, how could such property that was acquired more than six years ago be confiscated?

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I will come on to that, but I would be grateful if Labour Members would explain how they would avoid injustice and ensure that they do not confiscate property that is not the proceeds of crime. The Government need to address that point.

On Second Reading, I referred to the experience in the Republic of Ireland, where the Irish equivalent of the Assets Recovery Agency has great difficulty because of the offloading of the proceeds of crime. The proceeds of crime in Ireland tend to be lap dancing clubs, racehorses and other property of that kind. People are involved in activities such as gambling, and someone who has a criminal lifestyle-or, to suggest an alternative phrase to the Minister, someone who has a history of recurrent criminal behaviour-and who has received proceeds of crime and acted illegally, may also have legitimately placed a bet and won money on a horse. That is not beyond the bounds of possibility-it is sometimes difficult to beat the bookmaker, but it happens occasionally. How can one prove that many years later? It will be almost impossible.

In relation to the balance of probabilities, which is the test under subsection (6)(a) to which the Minister referred, I do not have a problem with reversing the burden of proof when someone has been convicted. However, I do have a problem with asking people to prove something from the mists of time. It becomes more difficult for the state to prove, which is why the onus is put on the criminal. It is unfair for the criminal to have to prove his innocence in respect of property acquired back in the mists of time. Such a provision goes too far.

The point that I and other Opposition Members are making is: where does one draw the line? Someone who has a history of recurrent criminal behaviour may also have legitimate aspects to his behaviour. As the hon. Member for Surrey Heath said, someone may have turned to crime in the recent past-in the past six or seven years-but may have had made legitimate acquisitions before then. The Minister has said nothing to convince me that there is an acceptable method of differentiating.

Let us say, for example, that a criminal has been convicted of an offence, and his assets are to be seized. Some of those assets are clearly the proceeds of crime, but there is also a picture that the criminal claims is a family heirloom, and £15,000 that he says he won on Red Rum. Will the court, on the balance of probabilities-not on a ``plausible explanation'', as the hon. Member for Birmingham, Hall Green said earlier-believe a criminal who has committed offences, has proceeds of crime and is probably a shady character? Will it believe that he could have acquired something legitimately, perhaps by an implausible method like winning a lot of money on a horse? How will he prove that? He cannot. The Minister, who has a legitimate, understandable and laudable desire to nail criminals and seize the proceeds of crime, seems to be saying that, if, in the process, property is swept up that is not the proceeds of crime, that is a price worth paying.

Photo of Stephen Hesford Stephen Hesford Llafur, Wirral West 10:15, 22 Tachwedd 2001

Does the hon. Gentleman not appreciate the fallacy in his argument? One is equally unlikely to be able to prove that one won money on a bet, whether it was three or 15 years ago. The time element does not apply in relation to the betting example.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I do not accept that. I accept that it may be difficult to prove, even when the bet was three years ago, but I am prepared to live with that. A process must be in place that does not let the criminal off the hook too easily.

Photo of Stephen Hesford Stephen Hesford Llafur, Wirral West

So it is not an issue of principle.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

It is an issue of trying to get the balance right. It is about trying to make sure that criminals do not escape the net, which is what the Bill is designed to do, while, on the other hand, making sure that injustices do not occur. It is a question of where to draw the line. The Minister is drawing the line in the wrong place if people are allowed to go back into the mists of time and say, ``If you can't prove how and where you got this asset 25 years ago, we're having it.'' That is not right. I am a muesli-eating, organic food-eating, Guardian-reading-

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

Will the hon. Gentleman take some care? After I spoke so firmly in favour of his amendment, he should consider not trying to switch me off.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I was trying to switch Labour Members on, who may also be Guardian readers. The Home Secretary singularly failed to accept my challenge as to whether he reads The Guardian. I think that he prefers The Times these days.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I am also a Scotsman, so I appeal to the Minister. The line has not been drawn in the right place. There is a risk of injustice. It is all very well to say that subsection (6)(a) and (b) deal with the matter. For the reasons that I have outlined, I do not believe that they do.

What is the alternative and how can we deal with proceeds of crime that were obtained prior to the six-year period? I do not know. I am not a lawyer. I am not a draftsman. It is my job to point out injustices and problems with legislation. It is up to the Government to introduce appropriate measures. A system could be put in place, for example, that would put the onus back on the prosecuting authorities for a period prior to six years. There may be other ways in which to legislate, such as making 10 years the appropriate cut-off point.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

The hon. Gentleman's suggestion is interesting. At the outset, he accepts that the burden of proof should be on the convict, who is in the best position to prove where his assets came from, but when that becomes even harder to prove, the hon. Gentleman switches the burden back to the prosecutor.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

That is right. If it becomes harder for the criminal to demonstrate that his property may have been obtained legitimately, it is an unfair test. That is why I want the onus put back on the prosecutor.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I strongly agree with the way in which the hon. Gentleman is putting his case. Is not part of the answer to the point made by the hon. Member for Wellingborough (Mr. Stinchcombe) that we want to limit any possible injustice and that even criminals should not be subject to unjust draconian laws?

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

That is exactly right. In another context, the Government are considering that it would be legitimate for juries to have access to information about previous convictions. In this country, we have tended not to make people aware of previous convictions so that the jury is not prejudiced. However, the courts may be prejudiced against such people, first because they are convicted criminals and secondly because they will have the proceeds of crime.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I hope that the hon. Gentleman will forgive me for raising an issue that has not been raised before in Committee. At present, the only burden on the prosecutor is to identify the assets held by the defendant at any time after the conviction. However, under the amendment, extrapolating which assets were transferred and which were not could be a difficult task for the defendant as well as for the prosecutor. Does the hon. Gentleman see any way in which to get round that problem, or should it be thrown back to the Government?

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

The onus is always on the Government and their civil servants to draft a Bill that works. It is the role of Opposition parties and Labour Back Benchers to point out to Ministers problems in legislation, so that it works effectively, does not have loopholes and everyone is happy with it. That is how the process should work. Working with the sparse resources of the Liberal Democrats-we are not sure what the Conservatives have-we concluded that a time limit different from six years could be set. There may be a reversal of the requirement for the burden of proof from the criminal to the prosecuting authorities before six years.

There could be other ways in which to deal with the problem-I am open to suggestions-but the current provision is not fair. I do not believe that there are sufficient safeguards to prevent injustice from occurring. That is genuinely how I feel. Nothing that the Minister has said today has convinced me otherwise. For the first time in this Committee, I shall press the amendment to a Division.

Question put, That the amendment be made:-

The Committee divided: Ayes 7, Noes 12.

Rhif adran 4 Adults Abused in Childhood — New clause 2 - Ministerial guidance as respects

Ie: 7 MPs

Na: 12 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Amendment proposed: No. 34, in page 6, line 13, leave out paragraph (a) and insert-

`(a) the defendant adduces evidence which is sufficient to raise an issue with respect to the matter and the prosecution fails to prove its case on the matter.'.-[Mr. Hawkins.]

Question put, That the amendment be made:-

The Committee divided: Ayes 5, Noes 14.

Rhif adran 5 Adults Abused in Childhood — New clause 2 - Ministerial guidance as respects

Ie: 5 MPs

Na: 14 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Amendment proposed: No. 76, in page 6, line 14, at end insert-

`(c) there is no rational connection between the facts proved in proceedings leading to the trigger convictions and the facts adduced for consideration of the assumptions.'.-[Mr. Grieve.]

Question put, That the amendment be made:-

The Committee divided: Ayes 5, Noes 14.

Rhif adran 6 Adults Abused in Childhood — New clause 2 - Ministerial guidance as respects

Ie: 5 MPs

Na: 14 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

On a point of order, Mr. Gale. My hon. Friend the Member for Beaconsfield and I might have misunderstood something. Is it the case that, if amendments Nos. 51 to 59 were all linked to amendment No. 24, they fell if the hon. Member for Lewes did not move them? My hon. Friend and I were hoping to have a separate vote on amendments Nos. 51 to 59-although a debate on amendment No. 51 would have been sufficient, as the others are consequential.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

The hon. Member for Lewes had an opportunity to endeavour to put amendment No. 51 to a vote, and chose not to do so.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 11 ordered to stand part of the Bill.