Clause 29 - Defendant neither convicted nor acquitted

Proceeds of Crime Bill – in a Public Bill Committee am 6:15 pm ar 27 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

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

I do not wish to repeat what I said earlier, but there seems to be an issue here. It would be helpful if the Minister could take me through the procedure under clause 29 so that the Committee can understand how it differs from other procedures. If I have understood it correctly, there is a mechanism for confiscating the assets of someone who has not stood trial and who might not otherwise fall within the criteria for confiscation. If that is correct, why are we retaining it when we have a civil power to do exactly that to unconvicted criminals?

As these provisions cast the net so much wider by focusing not on offences or the proceeds linked to an offence, but on the whole criminal life and general criminal conduct, is there not a risk of injustice? After all, it is perfectly possible to bring civil proceedings in someone's absence and it is usually quite easy to prove one's case. Most of us who have been in the civil courts have had to go to court to prove our case in the absence of a defendant. It is not unusual. In those circumstances I seek the Committee's opinion as to whether it is correct to keep that power and extend it across a wide variety of offences and circumstances when an alternative is available.

Photo of Stephen Hesford Stephen Hesford Llafur, Wirral West

I am obliged to the hon. Gentleman for giving way. Subsection (3)(b) contains the appropriateness provision. Does he not accept that if a defendant deliberately absconds, and has done so for a substantial period, it might be more difficult to go after him under the civil procedure? There should be a residuary element under this procedure if the judge, on examining the full circumstances of the deliberate absconding, decides that it could apply.

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

I accept that that the hon. Gentleman may have a point. We have not had a chance to look at the civil procedure. From what I have read of it, it will apparently be a powerful tool in the hands of the director for recovering money from individuals who have not been convicted of offences. There may be—[Interruption.]

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

Order. Just because the hon. Member for Glasgow, Pollok is in his dinner suit and looks like he is moonlighting for the Refreshment Department, other members should not discuss it while the hon. Gentleman makes his case.

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

The civil recovery procedure may create problems in relation to legal proceedings being brought against an absentee. In my opinion, it is perfectly possible to cure that by amending the procedure. In my experience, civil proceedings can be brought against someone who has absconded by serving notice at their last known address in this country. There are a number of other provisions that can be used if necessary, but we should not get away from the underlying principle.

The confiscation regime has now been greatly strengthened—we supported that in principle—for the purpose of targeting assets linked to crime over a specified period, and those resulting from a criminal lifestyle. However, it depends on someone having a criminal lifestyle and the building blocks that lead up to it. If those blocks are not there because a person has not been convicted, should we use the procedure against that person?

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

My hon. Friend's argument reinforces the point raised by the previous amendments, which attempted to delete the references to clause 11 in clauses 28 and 29. It seems odd that we have an exact parallel of the provisions, including the reference to clause 11, in clause 28, where it might be less exceptionable when the defendant has been convicted or acquitted, and in clause 29 where, as the hon. Gentleman says, the defendant will not have been convicted or acquitted particularly as there will have been no conviction—is very odd indeed.

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

I agree with my hon. Friend. The best thing that I can do now is to listen to other Committee members and, in particular, to the Minister. If we find that there is a point to be made, perhaps we can have a more developed debate on the subject.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I find myself in some sympathy with the argument of the hon. Member for Beaconsfield, which I urge the Minister to consider. It strikes me that we are in danger of dealing with a provision that is a relic of previous legislation and does not take sufficient account of later provisions that provide for recovery through the civil courts without the need to obtain a criminal conviction first.

I remind the Minister that part of this concern was raised on Second Reading. The Bill should include a clearly defined hierarchy of the different options that are open to the authorities when seeking to confiscate assets. If that were included, many of the hon. Gentleman's concerns, which I share, may be answered.

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

The hon. Gentleman, with whom I agree, will recognise that we tabled amendment No. 115, which seeks to delete clause 29. It was not selected because it would amount to a clause stand part debate and I understand the reason for that. Does the hon. Gentleman agree that we should delete the clause altogether?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

No. I am not yet sufficiently persuaded. I chose the words ``some sympathy with'' quite deliberately. I wait to hear what the Minister has to say, but it is appropriate that the concern has been raised, and will perhaps be addressed later.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

Order. Before I call the Minister, may I clarify that the amendment was not selected because, as the hon. Member for Surrey Heath rightly said, it is a wrecking amendment and the same result could be achieved by dealing with the clause?

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

I wish to make a point, which I hope will not provoke the hon. Member for Beaconsfield or the Chair. We are considering an substantial issue and it is a great shame—I will put it no more strongly than that—that, having agreed a programme motion, and having adjusted it to accommodate issues as we were requested, we have come to consider this matter only now, after we have debated subjects such as whether to replace the definite article with the indefinite article, and whether to replace three words with one, when there is no discernible difference between the alternatives. I hope that that was not the intention behind some of our previous debates.

Clause 29 enables the court to make a confiscation order in absentia, when criminal proceedings have been started against a person who absconds before conviction. The clause's key change is to extend the power to make a confiscation order in absentia: that used to apply only to absconding drug offenders but will now also apply to people who have been charged with other crimes. The provision exists in legislation relating to drug offences, but we are broadening it—so the provision broadens with the legislation. The justification for the power is the same as in clause 28: no defendant should escape confiscation by absconding.

If a person flees justice, it would not be right for them to be able to frustrate a confiscation order in its entirety. I appreciate that there are good reasons why our criminal justice system does not generally allow proceedings to take place in absentia, but that does not mean that such proceedings should be prohibited when there are good reasons for them.

There are several safeguards: the main one is that of legal representation for the absconder, and I can confirm that such representation will always be provided in the form of amicus curiae— a term with which hon. Members who are lawyers and barristers will be more familiar than I am. Moreover, third parties are allowed representation at an absconder's confiscation hearing, even though that is not possible at an ordinary confiscation hearing. That is because, at an ordinary confiscation hearing, the defendant can call witnesses who might be third parties.

In the absence of the defendant, a wider right of representation should be permitted. In addition, an absconder who returns and is acquitted, or who is not proceeded against, can have that confiscation order cancelled, and there is special provision for compensation under such circumstances.

The hon. Member for Orkney and Shetland said that he had some sympathy with the point that was raised by the hon. Member for Beaconsfield. He said that he would feel more comfortable if there were a hierarchy in respect of the use of the procedure. One of the main points made in that regard was that civil recovery is appropriate, and that in certain circumstances it should be used rather than confiscation.

I do not know whether the hon. Gentleman is objecting to the fact that the hierarchy is not written into the Bill, but I assure him that there is intended to be a hierarchy. I believe that I have distributed the guidance that will be given for the use of these powers to all Committee members, and that hierarchy clearly states that the pursuit of the criminal through normal criminal proceedings should come first and foremost; that confiscation—under part 2 as it applies to England and Wales, and under part 3 as it applies to Scotland—should come second; and that only in cases in which those are not being considered should we consider civil recovery under part 5.

That hierarchy does exist. Part may be usable in principle, but I invite the hon. Gentleman to consider when such circumstances may arise. Proceedings have already commenced. The charge has been made. In all probability—although not necessarily—a restraint order has been placed on the defendant. Let us suppose that the defendant absconds in the middle of the proceedings. If he reappears, he has the ability to challenge the confiscation order, and as I have said, he can knock it down and receive compensation in such circumstances, too.

Is it right that, in those circumstances, we oblige the law and order authorities to abandon the case and to pick up with a wholly separate civil recovery procedure to pursue the assets? I recognise that that point is substantial and important.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 6:45, 27 Tachwedd 2001

We shall no doubt debate in detail the civil recovery procedure when we reach part 5. As drafted, part of the conditions precedent and the trigger of subsection (2)(c) is that the person should have absconded for two years before such a procedure can start. Is not the great likelihood that the part 5 procedure will be much preferable in such circumstances when there has not been a criminal conviction, because the authorities can go through the part 5 civil recovery procedure? Unless I have misunderstood matters, they do not have to wait for two years. There is no delay mechanism. The Government have inserted the safeguard of a two-year delay procedure under subsection (2)(c). I am sure that all members of the Committee will understand why we want to hit the Mr. Bigs, but will they not be hit by the civil recovery procedure if they have absconded because that would be preferable to waiting for two years?

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

That may well be the position. I accept the point that the legislation applies only to drug traffickers. By way of information, a confiscation order has never been proceeded with in absentia against an absconder in England and Wales. I am not sure of the position in Scotland, but it is not something that is entered into lightly.

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

Is such a provision on the statute book?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Does that not suggest that it would be more appropriate to proceed under the provisions in part 5?

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

As I have said, there could be such circumstances. I am asking the Committee to consider whether we should review that ability. Part 5 is intended for use only when, for various reasons, a person cannot be pursued through the criminal courts. Part 2 is meant to be the appropriate and main method of confiscation. When anyone is pursued under criminal procedures, the defendant has probably been charged and we have restrained the goods, although that is not done on every occasion, after which time he absconds. Do we want to remove that ability from the legislation and render it not possible to confiscate the proceeds in such circumstances?

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

The Minister has gone some way towards answering his own question. I am grateful to him, because he has been willing to share his understanding of the difficulty. He said that, as far as he is aware, the power has never been used. That highlights its unusual nature in relation to someone who has not been convicted. I understand why it existed in the past, but we are introducing a part 5 recovery procedure, which we all support in principle, yet we are retaining a procedure that has been shown, by its non-use, to pose uncertainties, problems and probably some anxieties about its potential unfairness and the problems that could flow from it. Is that not a compelling reason why we should hesitate about retaining it when an alternative is available? After all, if the goods are under restraint, they will not disappear while the civil proceedings are brought into play.

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

Let me say that I am worried about one aspect of removing it, about which I am not sure that the hon. Gentleman has thought. Despite the fact that part 5 may be available, the defendant may know his circumstances, and, in all probability, knows them far better than anyone else. He may know the potential for civil recovery, and he may have sufficient legal advice to give him an idea of the potential for that to be successful compared with a process of criminal confiscation that has already been started. If we remove the provision from the legislation, might we not be encouraging people to abscond? I ask the hon. Gentleman to reflect on that. It may not have been used, but as I heard my hon. Friend the Member for Redcar say from a sedentary position, that may be because people have not managed to abscond or stay away for a period of two years. Removing the provision from the legislation has potential consequences. It is not a provision that should be used lightly, but the hon. Gentleman should reflect that, in certain circumstances or with certain advice, it may be not be as practical to pursue the proceeds of crime when confiscation proceedings have already been started under part 5. By removing the provision in its entirety, we may give people an incentive to abscond in order to keep their ill-gotten gains.

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

I am listening carefully to the Minister, and I understand his argument. At the same as time as we are considering his points, will he consider with his officials whether, if a provision such as clause 29 remains part of the legislation, it may be appropriate, given the existence of fresh provisions and the extension of the whole regime, to delete the reference to clause 11 in clause 29(5)(d). That relates to the point made by my hon. Friend the Member for Beaconsfield, which I re-emphasised. The Minister has conceded that it is an extended regime, and we need to think about that. Including it in clause 29, which relates to circumstances in which the defendant has not been convicted, is different from including it in clause 28.

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

The hon. Gentleman has misunderstood. If we removed the reference to clause 11, we would also be allowing the assumptions procedure to be used when the defendant had absconded. With regard to clause 28 as well as clause 29, many Committee members, with the exception of my hon. Friend the Member for Glasgow, Pollok, believe that the legislation is tough. We are not proposing to use the assumptions procedure in absentia to mount a confiscation order against an individual's general proceeds when he is not there to rebut the case. I do not think that the hon. Member for Surrey Heath wants me to do what he is suggesting, which could bring the assumptions back into the proceedings in absentia. The assumptions should be used only in the particular criminal case in the court at the time that the defendant absconded, and not in general cases.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I guess that defendants do not abscond because it is close to conviction and they do not have the option open to them—they are in a situation of restricted liberty. If the provisions of part 5 were in place, it would come to the same end for the defendants. I do not see why they would be encouraged to abscond if that gave rise to civil rather than criminal recovery. A further merit is that there is a certain neatness and cleanness in leaving the criminal proceedings in limbo and untainted by the recovery procedure, which could be done separately under the civil procedures in part 5.

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

I accept that there would be a certain neatness. Equally, the hon. Gentleman must accept that I am not satisfied that using part 5 would be as effective in all circumstances. As he rightly pointed out, we are talking about circumstances in which the defendant has either broken out of custody or is in complete breach of bail. In most cases, we are talking about the former. It would be a retrograde step to remove from the legislation the provision to continue to hold property that has already been restrained after someone has broken out of custody. It could weaken the provisions that we already have for drug offenders, although I accept that we are widening the legislation.

I accept that that is an important issue, but for the reasons that I have mentioned, I urge the Committee to accept clause 29 and maintain the provision in the legislation.

Question put and agreed to.

Clause 29 ordered to stand part of the Bill.