Clause 41 - Conditions for exercise of powers

Proceeds of Crime Bill – in a Public Bill Committee am 8:55 am ar 29 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon 8:55, 29 Tachwedd 2001

Good morning. As no Liberal Democrat Member is here, would one of the other hon. Members in whose name amendment No. 67 stands like to move it?

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

I beg to move amendment No. 67, in page 26, line 43, leave out `Crown' and insert `High'.

Unexpected though this may be, I am happy to move the amendment—and to make a follow-up speech.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

You do not look as if you are.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

Order. I am not making a speech.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I am sorry, Mr. McWilliam—and I should have asked your permission to take my jacket off, too. Shall I put it back on again?

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

No. I give my permission for hon. Gentlemen to remove their jackets.

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

Amendment No. 67 brings us to a topic that we touched on briefly when we discussed clause 6, which is whether the Crown court is a suitable venue for restraint proceedings. As the Minister is aware, although confiscation orders are made in the Crown court, the enforcement power of the confiscation order regime and the restraint orders lies in the High Court. Under the new provisions, it is the Government's intention to ensure that the Crown court is seized of the matter throughout. We can see the attraction of that action with regard to administrative efficiency, and if the entire proceedings are handled within one court, there are advantages. I suspect that the charges or costs of bringing the proceedings to the Crown court may be lower than if they were to be managed as High Court proceedings. Perhaps the Minister will confirm that.

I seek reassurance about whether the Crown court has the training, skills and capacity for such an operation. To put it simply, there is no Crown court tradition of dealing with the complex issues of equitable law that will arise in respect of asset restraint. There is no department of Crown court judges and I believe that most Crown court judges would say that there were completely unqualified to carry out such an exercise. I am sure that the Minister will agree that the clauses that follow on from clause 41 show the complexity of the proceedings, which include the appointment of receivers, their powers, the restrictions on what they may do with restraint orders, and discharge and variation. They are all matters with which the High Court, not the Crown high, is extremely familiar.

As most Crown court judges are barristers or solicitors with practising certificates who have, for the most part, specialised in criminal work, I question whether the expertise exists to use such powers. It is easy for such an exercise to go wrong. If it were not carried out correctly, there would be costly appeals and further time and public money would be spent, which would probably be unnecessary if a proven method through the High Court were used. I also ask how easy it will be to find time in the Crown court to carry out such proceedings. My understanding of the way in which the Crown court works is that it moves from one trial to the next.

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

But because the programme for the court is on the basis of a morning start at 10.30 with a trial, applications—be they bail applications, applications for the discovery of documents, or public interest immunity applications—get slotted in beforehand. How will time be made available for complex applications that require the hearing of detailed argument on equitable principles of law, and about people's rights in respect of property?

Will the Minister explain any discussions he may have had with the Lord Chancellor's Department about the way in which such a procedure will operate? In contrast, the High Court is probably better suited to slotting in applications, estimating time and incorporating the work as part of its mainstream business. Has that been properly thought through? I understand the temptation to say that the Crown court can deal with all this—indeed, that it is better if it does—and I see the theoretical justification for that. However, the High Court and the Crown court are two entirely different animals, and perhaps not all members of the Committee are aware of that.

I have some anxieties, and over the past few weeks I have raised the subject with High Court judges. They expressed their worries about whether the Crown court was capable of doing that type of work. That is anecdotal evidence, but I believe that the last thing High Court judges want is hold on to that type of work. They are already burdened with a huge range of duties and will not, I suspect, be particularly pleased when restraint orders are on their lists. I am worried that we could end up with a system that starts badly. Will Crown court judges be trained in the principles of such activities? They are outside both their judicial work and, almost certainly, the work that they will have practised as solicitors or barristers.

Will the Minister give a detailed explanation of the basis for making that particular decision and tell us how it will work in practice? What contact has there been with the judiciary and the Lord Chancellor's Department about its operation? What view does the Crown court service have about the impact of those applications on the courts' already overloaded casework? Unless those questions can be satisfactorily resolved, we as a Committee—and subsequently, Parliament as a whole—will be passing legislation that is unworkable in practice. If that happens, the whole issue will have to be disentangled. I want it to work and I want the restraint order procedure to work smoothly and efficiently. My experience, and everything that I have heard in conversations, suggests that there may be a problem in that particular area.

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

I apologise for not having been present for the very prompt commencement of business this morning. I assure the Committee that that happened not of any discourtesy but because of an inborn inability to be punctual. Hon. Members may be aware that I was born and brought up in a Gaelic-speaking area of Scotland—and that there is no word in Gaelic that quite expresses as much urgency as ``mañana''. I tender the appropriate apologies.

I shall be brief, because the hon. Member for Beaconsfield (Mr. Grieve) gave a substantial exposition of the thinking behind the amendment, and I associate myself with the broad thrust of his remarks. It seems to me that by taking responsibility for the application of restraint orders from the Crown court to the High Court we would be able to put in place a necessary provision to protect the quality of the Bill's execution.

The hon. Member for Beaconsfield rightly drew attention to the fact that the nature and quality of the work undertaken in the Crown courts is normally different. They are essentially trials courts, whereas in this case we are dealing essentially with civil property litigation. Indeed, clear parallels could be drawn with the law of injunction in England, and certainly with that of interdict in Scotland.

The clarion cry with which Opposition Members are assailed day after day in the Committee is that we are being soft on crime and those who live on the proceeds of crime. After a while, that becomes slightly tedious, but if that were the only tedium with which I had to contend in the course of a working day, I should be quite happy. However, the suggestion that we take matters out of the Crown court and put them into the High Court assures us that on this occasion no accusation could be made of our being soft on anyone. In my experience—and, I am sure, that of the hon. Member for Beaconsfield and others—superior courts routinely take a much more severe and, dare I say, occasionally draconian approach to criminal and criminal-related work than is often taken in the lower courts.

As the hon. Member for Beaconsfield may have already made clear, this is a probing amendment. I am interested to hear about the Minister's thinking. I am not minded to ask for the amendment to be pressed at this stage, although I do not want to give any hostages to fortune as to how I may feel when I hear the Minister's explanation. It is important for the appropriate level for the determination of restraint orders to be fully explored at this stage. I look forward to the Minister's response.

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

The hon. Member for Beaconsfield was good enough to say that he saw some advantages in the proposal in the Bill. I am sorry that the hon. Member for Orkney and Shetland (Mr. Carmichael) feels that, sitting on the Opposition Benches, he suffers such tedium when we continue to throw such allegations at him. I ask him during the rest of the proceedings to imagine the tedium of being on the Government Benches when the hon. Member for Spelthorne (Mr. Wilshire) is going through the Bill trying to burn up the Committee's time.

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


The amendment would require restraint proceedings to be held in the High Court, as at present. As we have said previously, it is our deliberate intention to transfer such proceedings to the Crown court. The amendment would therefore reverse one of the key changes that the Government are making to the current confiscation procedures.

The subject was discussed in some detail in the report of the performance and innovation unit, to which I have already referred. In the Government's view, the transfer of restraint from the High Court to the Crown court is fully justified. Our starting point is the number of restraint orders currently made. The performance and innovation unit report stated that only 252 orders were made in 1997, and 247 in 1998.

The Government's aim in part 2 is to increase greatly the use of confiscation as a tool against acquisitive crime, and we make no apologies for that. Effective and early restraint of the proceeds of crime is a critical element in the process. Due to the ease and speed with which cash and assets can be transferred to the safety of foreign jurisdictions, assets must be frozen as an emergency measure to prevent that from happening. The Government consider the transfer of restraint to the Crown court unavoidable, given the anticipated growth in the number of asset recovery proceedings.

The administrative court could not cope with a heavier workload. The Crown Office of the High Court is the only forum authorised to hear such cases. It has just 20 judges, who sit mainly in London, and it deals with a huge range of work, not just restraint proceedings. It is vital that restraint orders are available routinely and locally, to support the greater number of confiscations that we anticipate. The hon. Member for Beaconsfield is right to say that the Crown court does not deal with restraint matters, but it has dealt with complex property issues in confiscation cases for many years.

We need to ensure that there is expertise in the Crown court judiciary. The Home Office and the Lord Chancellor's Department are in discussion with the Judicial Studies Board about what support and training is required to underpin the transfer of restraint to the Crown court, and about other changes in the Bill. We have discussed and are still discussing those matters with the Lord Chancellor's Department, which is fully involved in the matter.

The hon. Member for Beaconsfield is good at taking a brief, but I suspect that he has a little more sympathy for the proposition than he would allow us to see. I am sure that he accepts that if we did not make the transfer, our ability to increase the number of cases would be restricted.

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

I am not unsympathetic to what the Minister is trying to achieve with subsection (1), but I am a little worried and shall press him further. The Minister says that he is in discussion with the Lord Chancellor's Department. Those discussions should have taken place some time ago, and the Minister should be in a position to tell the Committee what will be done to provide the Crown court with the extra resources needed to handle such work.

The Minister says that only 252 orders were made in 1997, and 247 in 1998. Does he have any statistical evidence about how much court time is taken up with such cases in a 12-month period? As the Minister says that we shall multiply the number of cases that are brought to court—indeed, we want that to happen—that information would be useful. It would give an idea of what resources are needed to handle the transfer.

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

No, I do not have that information at my fingertips. The hon. Gentleman should not try to misrepresent what I said. Discussions have been under way for some time. As the hon. Gentleman well knows, representations have been made against the Bill. I have had discussions with interested parties who expressed concern about the move. We have considered the matter and do not believe that it is possible to handle the anticipated increased volume of cases unless we change the venue, and unless we have the support of the Lord Chancellor's Department in believing that the transfer is feasible if appropriate training is provided.

The discussions to identify what is needed will continue. We hope to make absolutely sure that the necessary expertise is provided.

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

I associate myself with the remarks of the hon. Member for Beaconsfield about resource increases, which will be crucial for the successful operation of the provisions. Will extra resources be required that cannot be given as easily to the High Court as to the Crown court?

The Minister drew attention to work done in the Crown court on confiscation orders. I have glanced at clause 42 and I have not found the answer to one question, although it may be staring me in the face. What standard of proof will be required to make a restraint order? Earlier, I mentioned a parallel with injunction in England and Wales, and interdict in Scotland. In Scotland, the standard for obtaining an interdict, at least ad interim, is on the balance of convenience. That is much lower and raises a significant potential for injustice in terms of interference with an individual's property rights. The distinction between confiscation and restraint—

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon 9:15, 29 Tachwedd 2001

Order. Restraint may be in order, because that was a very long intervention. The Minister must now continue his speech.

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

Costs are not our concern. In theory, additional resources could be thrown at the High Court rather than the Crown court, but that is not the way to achieve the required accessibility.

The hon. Gentleman and the hon. Member for Beaconsfield made valid points about providing an analysis of the costs of current cases to give us that information during the passage of the Bill. I shall do that if I can. However, our main concern is not costs but accessibility, and the ability to use the powers more widely.

The hon. Gentleman asked what standard of proof will be required. The court must ask whether there is reasonable cause to believe that an offender has benefited from the proceeds of crime. Such a case must be made when obtaining the original restraining order. In view of my assurance to try to find out the cost—in terms of time—of current cases so that hon. Members can examine it, I ask for the amendment to be withdrawn.

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

Will the Minister consider an amendment that I might have drafted if I had been clever enough to think of it at the time? If he is not minded to accept the present amendment, will he consider tabling an amendment at a later stage to allow the power to be used by either the Crown court or the High Court? There will be several immensely complicated cases that it could be appropriate for the director or prosecutor to take to the High Court in the first instance.

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

I am not minded to do that. We discussed the matter for some time, and discussed the different representations that were made to us. There would be huge advantages in concentrating the expertise in the Crown court. We would not do that if we split responsibilities and took complicated cases to the High Court. I am not dreadfully sympathetic to the hon. Gentleman's suggestion. I have heard the argument that more routine cases should be dealt with in the Crown court and more complex cases in the High Court. The Crown court is more than capable of dealing with the all cases provided that it receives appropriate resources and training, the requirement for which we must discuss.

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

I appreciate what the Minister has said, but I continue to have worries about the matter. The answers that he has given the Committee worry me; indeed, I am a bit more worried now than I was when I first spoke.

The Bill will pass on to the other place in February, and I assume that the Government intend to have it on the statute book by the summer. I am unsure of the start date—the Minister might already know it—but I assume that we want to set the system up as quickly as possible. However, it is not possible to magic up new Crown court judges in 24 hours—or, indeed, in six months—or to identify swiftly where to find the expertise to deal with this kind of application.

The best point that the Minister made was that the current resources of the Crown Office appear to be insufficient to deal with the likely rise in workload. However, I believe that the resources of the Crown courts, too, are inadequate. Perhaps I am a suspicious man, but, at some point in the near future we shall consider the Auld report, and I hope that when that happens, we will not be told that Crown court judges are so busy dealing with restraint orders under confiscation proceedings that that is a justification for reducing the incidence of jury trial by relegating such trials to a new, lower court. In my view, all those matters are, potentially, intimately linked together, and I am not satisfied with the Government's apparent approach to them.

I appreciate that it would have been difficult, as it takes time to sort such things out, but I would have been reassured if the Minister had offered us an outline that said, ``We've discussed the matter with the Lord Chancellor and his Department, and he has already agreed that there is likely to be a need for, say, 20 more Crown court judges, and in view of the change in the Crown court judges' workload, the Lord Chancellor is going to try to recruit practitioners who have experience of this type of work. All that is well on the way to being organised.'' However, the Minister has not offered us such an outline. Instead, one gets the distinct impression that there have been some preliminary discussions, and anxieties have been flagged up, but the Government have gone ahead, and they are convinced that the matter will sort itself out.

A major change is being proposed—cases will be transferred from the High Court to the Crown court. Perhaps that is justified, but I am a conservative with a small ``c'': if someone wishes to win my support for changing an existing system, they must persuade me that the new system will work, and I have not been persuaded that that will be the case.

I am therefore minded to press the amendment to a Division. That will register the fact that Opposition Members hold to the view—I believe it has cross-party support—that until we are persuaded that something is going to work better, and the detail has been provided to persuade us of that, we should stick to the original system. A Division will also serve as a marker when the matter is considered in the other place; at that time, the Government might have further developed their ideas, in which case they will be able to explain in greater detail how the system will operate in practice—and many of their lordships have considerable experience of how the High Court and the Crown court work.

I acknowledge that it is difficult to predict how many applications there will be, but this is a major change, and the Minister has not reassured me that the Government have got to grips with its implications. I am also worried about the possible knock-on consequences, in view of the Government's other projects that will affect what the Crown court will be doing in two, three or five years.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 13.

Rhif adran 8 Adults Abused in Childhood — Clause 41 - Conditions for exercise of powers

Ie: 6 MPs

Na: 13 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

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

Mr. Wilshire rose—

Hon. Members:


Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I am sorry to disappoint Labour Members, but I wanted to make sure that I had not lost my voice. My contribution will be brief. I am always worried when I notice words like ``undue''. Subsections (7) and (8) refer to ``undue delay'', and I wonder whether there is a legal definition of what ``undue'' means. I can see a danger of somebody being involved in this sort of procedure, and the thing dragging on and on. With the greatest of respect to those who simply want to browbeat the accused, it is necessary to ensure that justice applies to them. The stress and strain of dragging it out in what many people would think was an unreasonable way—[Laughter.] The Minister of State is taking the wrong point. I hasten to add that I refer to things being dragged out in court. If there is a definition of ``undue'', it would be helpful to know what it is. Will the Minister also explain how the accused, or the person involved in the process, could avail himself of the provision? Does someone have to go to the court and argue that the delay is undue, or would a court automatically say that the delay was unreasonable and act on its own accord?

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

There is no definition of ``undue''. It is at the discretion of the court to decide whether undue delay has occurred. There are provisions in the Bill for any of the parties affected by the measures to make representations to the court on them.

Question put and agreed to.

Clause 41 ordered to stand part of the Bill.