Clause 28 - Defendant convicted or committed

Proceeds of Crime Bill – in a Public Bill Committee am 6:00 pm ar 27 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 6:00, 27 Tachwedd 2001

I beg to move amendment No. 111, in page 18, line 20, leave out `appropriate' and insert `just and reasonable'.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

With this it will be convenient to discuss amendment No. 113, in page 19, line 12, leave out `appropriate' and insert `just and reasonable'.

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

This is slightly more than a textual amendment.

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

Yes, it does. I must tell the Minister that one does not want to make lengthy points on clauses that not only appear to be innocuous but on which there is likely to be agreement. Nevertheless, although it is easy to tick off clauses because they look all right in the generality, it is often those clauses that later cause so much trouble. I am simply trying to do my job properly.

Clause 28 deals with defendants who are convicted or committed who have absconded. Subsection (2) sets out the circumstances in which the defendant is convicted or committed. Subsection (3) states:

``The second condition is that—

(a) the prosecutor or the Director applies to the Crown Court to proceed under this section, and

(b) the court believes it is appropriate for it to do so.''

I hope that the Minister will forgive me for saying so, but in my career at the Bar I have discovered that the word that features most frequently in a barrister's vocabulary is ``appropriate''. Indeed, to such an extent is that so that I have known wagers to be taken between barristers—first, on who will be the first to use the word ``appropriate'' or sometimes the word ``inappropriate'', and secondly on whether a barrister can get through a speech or submission without using either of those words.

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

I had not heard of that wager, but it occurs to me that it is rather similar to the word ``sustainable'' in new Labour's vocabulary. [Mr. Stephen McCabe in the Chair]

[Mr. Stephen McCabe in the Chair]

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

I suspect that my hon. Friend may have struck a sensitive spot. Other similar words feature in the vocabulary and become overused.

What does ``appropriate'' mean? The amendment suggests that we are asking the court to make an evaluation as to whether it is just and reasonable to proceed. The appropriateness or inappropriateness of a case is not a proper definition; it can refer to almost anything. What is its derivation, and why is it used? It may simply have featured in earlier legislation. Even if it does, that is not necessarily a reason to retain it if another phrase better meets the need.

A more fundamental concern is that proceedings when defendants abscond should take place only when it is just and reasonable that they should do so. That means that it would be in the interests of justice, if it is reasonable, and if the court has made an evaluation that, in so far as the defendant may be disadvantaged, it is justifiable that he should be so because of his conduct.

[Mr. John McWilliam in the Chair]

I am not sure that the word ``appropriate'' meets the case. If the Minister disagrees with me, I should like to know in what way he thinks that the word ``appropriate'' is better than the words ``just and reasonable'', because the issue does have an impact.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 6:15, 27 Tachwedd 2001

I listen carefully to what the hon. Gentleman says, because although on the face of it many of his amendments seem to have little merit, when he explains them, there is a germ behind them. However, I do not understand where he is coming from with this amendment. Will he explain when it would not be ``appropriate'' for a court to act in a way that was ``just and reasonable''? Why must the amendment include both ``just'' and ``reasonable''? How could a court act reasonably if it did not act justly, or justly if not reasonably?

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

The hon. Gentleman has made a good point. When I considered my draft, I wondered whether I should have put only the word ``just'' or only the word ``reasonable''. I decided to use both, first, because I was satisfied that the Minister was unlikely to leap up and accept the amendment on the spot, and secondly, because I wanted to offer an alternative. I am content to use either of those two words. I am not anxious about either the word ``just'' or the word ``reasonable'', but I am concerned about the word ``appropriate''. If we are going to use that word, I should like to know what are the criteria of appropriateness and inappropriateness. It would be better to use the words ``reasonable'' or ``just''. One way or the other, the matter should be considered further.

Amendment No. 113 does exactly the same as amendment No. 111, but to clause 29. I do not want to repeat myself, as the issues are identical. The amendments are more than just an exercise in semantics. I am not satisfied about what is meant by the word ``appropriate''. I should like examples from the Minister of when it would be inappropriate to proceed under clauses 28(3)(b) or 29(3)(b).

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

The hon. Gentleman will be hugely relieved to know that my example does not refer to the Bill. Opposition Members are not responsible for the word ``appropriate'', no matter how often he uses it in court, and no matter how many times he makes wagers about how many times other people use it.

The Bill gives the court the general discretion to decide whether to make an order. We are at a loss to understand what the hon. Gentleman wants to achieve through his amendment. The court will consider that it is appropriate to proceed under the clauses only if it is just and reasonable, or just, or reasonable, to do so. We are giving the court the discretion to consider whether it is just, reasonable, just and reasonable or appropriate to proceed. He seems to be trying to replace one word with three for no reason.

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

I am not. If the Minister can satisfy me that the word ``appropriate'' has been judicially considered and defined to give it a meaning of ``just and reasonable'' I will not have the smallest quibble with him. I will withdraw the amendment and stop worrying about it.

The word ``reasonable'', and the term ``just and reasonable'' have been considered. I would, however, like clarification that the word ``appropriate'' has been considered, to give it the construction that the Minister has now most helpfully told the Committee that it should have. The hon. Member for Redcar (Vera Baird) may provide him with immediate advice on that subject, in which case, he can tell me.

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

I cannot tell the hon. Gentleman the exact origins, nor who first thought of the appropriateness of the word ``appropriate''—as opposed to ``just and reasonable''—or any other combination of those words. ``Appropriate'' is a word that is well understood, as the hon. Gentleman quite rightly pointed out, and is used more than frequently in the courts. We see absolutely no reason for, or advantage in, changing the word, at least not to the configuration that he suggests. I cannot say any more than that. I am trying not to disparage his efforts to improve the Bill, but we have been unable to fathom any change whatever that would result from the amendment.

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

I am really disappointed with the Minister's answer. I hoped that the hon. Member for Redcar would whisper in his ear and say that she had an immediate knowledge of appropriateness and inappropriateness.

I raise this issue because ``appropriate'' is an abused term. I still maintain that the word ``reasonable'' would be a better term to use. I am disappointed that the Minister has not provided a concrete explanation based on any legal precedent. I expected him to say that it had been used in other legislation, that it had been considered and found to be equivalent, but he has not. He may wish to make some inquiries, and perhaps he would drop me a line about it. We can then consider whether to revisit this issue on Report.

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

Is it appropriate for the hon. Gentleman to be as disappointed as he is?

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

I am grateful to the Minister for his comments. I am not satisfied that the provision is as well worded as it should be. It is about justice and reasonableness, and while all those words may be—as he said—subsumed into the word ``appropriate'', it is capable of having a different meaning. The phrase ``reasonable and just'' has a clear meaning that is well understood. I am half tempted to press the amendment to a Division. However, in order to give the Minister time to inform me of the basis for using the word ``reasonable'', I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 112, in page 18, line 34, leave out `11'.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

With this it will be convenient to take amendment No. 114, in clause 29, page 19, line 26, leave out `11'.

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

Subsection (5) states that if the court proceeds

``under section 6 as applied by this section, this Part has effect with these modifications''.

Subsection (5)(d) states that:

``sections 11, 17(4), 18 and 19 must be ignored''.

As the Minister will know, clause 11 concerns assumptions to be made in the case of a criminal lifestyle. Unless I have misunderstood, it must follow that the assumptions are jettisoned completely in the case of a defendant who absconds. That applies to both clause 28 and clause 29, where the defendant has been neither convicted nor acquitted.

Will the Minister confirm my interpretation that clause 11 is disapplied? The system in operation is that where the defendant absconds after conviction, or even if he has been neither convicted nor acquitted, the process undertaken—I hesitate to use the term ``rubber-stamped''—is that the assets are seized. It is as simple as that, because the assumptions do not have to be made.

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

The assumptions cannot be made because they cannot be rebutted. The assumptions procedure requires a reversal of evidence, so it does not have the effect to which the hon. Gentleman referred.

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

I am grateful for that clarification. I understand that in those circumstances it is, in a sense, a one-way street because the defendant is not in a position to rebut the assumptions. The inevitable consequence of a system in which assumptions have to be made is that there is no exit for the defendant.

The reason for tabling the amendments dovetails with the provisions under clause 29, and part of the argument might be better made under the debate on clause stand part. However, I will touch on it now and alert the Minister to my point. We will then return to it in the stand part debate on clause 29.

There is a system of civil recovery under the new provisions. As I read the legislation, I started to consider the particular problem of the defendant who has absconded without being convicted or acquitted. One may argue that because he has absconded, he has forfeited all his rights, and confiscation will take place under clause 29. As the Minister explained at some length, one reason why the confiscation procedure is so draconian, and properly so, is that someone has been convicted of offences. However, we retain the principle in this country that the person is not guilty until he has been found guilty.

There is no principle of trial in absentia, except in the case of corporations. Individuals are not tried in their absence, so if they happen to have absconded, they can be treated as innocent of any offence until such time as they are recovered and brought to court. On top of anything else that they may have done, or independently of it, they may be guilty of the offence of having failed to answer their bail. Nevertheless, they are not guilty of the offence for which they have been charged.

Given the way in which the confiscation mechanism is designed to work in the case of a person who has absconded, the question arises whether in those circumstances there is an argument that with the new provisions for civil recovery we should not have clause 29 and related clauses at all. That is a fundamental issue, and I am aware that the Minister will argue that that would result in a diminution of the power of the Bill. It is, however, a curiosity, and I suspect that it is also a relic of a system in which we did not have the civil recovery procedure as an alternative. It just troubles me a little that someone who absconds without having been tried does not fall within the criteria of clause 6. In those circumstances I wonder whether we need to keep the power at all.

6.30 pm

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

It may be more appropriate for us to have that substantive discussion on clause 29. I thank the hon. Gentleman for clarifying his reason for tabling the amendments. For one minute I thought that he was trying to toughen up the legislation quite considerably and get us to apply the assumptions procedure to an offender who had absconded. Now that he has effectively said that that is not is his intention and I have explained that it is not our intention simply to apply the confiscation procedure, but that the assumptions will not be applied in the absence of such an offender, it might be helpful if he withdraws his amendment and we move on to consider the substantive issue on clause 29.

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

I am happy to do that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 ordered to stand part of the Bill.