Clause 246 - ''Unlawful conduct''

Proceeds of Crime Bill – in a Public Bill Committee am 6:00 pm ar 11 Rhagfyr 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 6:00, 11 Rhagfyr 2001

I beg to move amendment No. 308, in page 145, line 26, after 'court', insert 'or sheriff'.

This is a minor amendment that will remedy a defect in the drafting of subsection (3). The clause applies to both civil recovery and cash forfeiture schemes. Under subsection (3),

''The court must decide on a balance of probabilities whether it is proved—

(a) that any matters alleged to constitute unlawful conduct have occurred, or

(b) that any person intended to use any cash in unlawful conduct.''

In the case of civil recovery proceedings, under chapter 2 of part 5, a court will decide whether the proceedings take place in England, Wales, Northern Ireland or Scotland. Proceedings will take place in the High Court or the Court of Session. However, in the case of cash forfeiture, proceedings in Scotland will take place before a sheriff. The decision as to whether it is proved on the balance of probabilities that any person intended to use any cash in unlawful conduct will therefore be taken not by a court in England, Wales or Northern Ireland, but by a sheriff in Scotland.

The amendment will ensure that the clause establishes that the requirement to reach a decision on the balance of probabilities is applied to both types of proceedings in all parts of the United Kingdom. It simply remedies a defect in the original drafting.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 6:15, 11 Rhagfyr 2001

I am a bit puzzled. I thought that the sheriff sat in court. I did not expect him to sit in some other forum. The need to insert 'or sheriff' struck me as odd, but perhaps that is something that I do not understand correctly about Scottish legal procedure. It did not occur to me that the decision would be taken by a sheriff sitting in his room or his bath.

Why do we need to say ''court or sheriff''? Why does ''court'' not cover a sheriff's court? Being a man with a suspicious mind, it immediately occurred to me that the decision could be an arbitrary administrative act, done in the sheriff's bath.

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

My hon. Friend expresses surprise, but he should remember that things such as ex parte injunctions can be granted by judges in their baths—indeed, that has been done.

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

I have been involved in cases in which injunctions have been granted by judges over the telephone, as is now normally done. I know that, in the past, injunctions have been granted by judges in their sitting rooms, and by passing notes out from their bathrooms.

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

I am convinced that this is just a matter of terminology. Elsewhere, the Bill refers to a sheriff, and the amendment simply brings the provision in line with the rest of the Bill. If there is anything more sinister or far-reaching about the amendment, I promise that I shall report back to the hon. Gentleman and the rest of the Committee.

Amendment agreed to.

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

I beg to move amendment No. 366, in page 145, line 26, leave out

'on a balance of probabilities',

and insert

'to the standard applicable in civil proceedings.'.

The amendment brings us to one of the nub issues about civil recovery proceedings. We touched on this matter previously in relation to confiscation, but it needs to be considered afresh, because this is a separate recovery system. The balance of probabilities is proposed as the test for proving whether matters that are alleged to constitute unlawful conduct have occurred. I would prefer the test to be the standard applicable in civil proceedings. As has been discussed by the Committee, a balance of probabilities is exactly what it says: it defines a particular test. However, it is common knowledge that over time—and in particular over the past 30 years—the test in civil proceedings has been varied to cater for the gravity of the proceedings and their consequences. Therefore, whereas in ordinary litigation between individuals for, let us say, negligence, the test is the balance of probabilities and nothing else, in cases where allegations of criminality are made, or where there are proceedings for contempt, the test will be higher, and the judge will have to be satisfied, within the civil standard, that it is right for him to reach a particular decision.

I want that flexibility to be preserved. This is a serious matter. The state, as represented by the director, will be given the power to bring proceedings that lead to the restraining of an individual's assets, regardless of the fact that there will have been no civil tort or contractual dispute between the state and the individual. That is draconian legislation, and it will be discussed again.

The state will also be able to bring proceedings that will ultimately lead to the confiscation, or removal, of those assets—the word ''confiscation'' is not used, but that is what we are talking about. The state will also be able to force an individual to go through a very public process, that will reveal his personal finances to the public—unless we do something about preventing that

from happening, and I will refer to that later—and may ruin his reputation in the process, because the proceedings contain the implication that he has obtained property through unlawful conduct. We should not underestimate the effect on an individual's reputation: it will be wholly different from the effect of losing a negligence action or a contractual dispute, as those are matters of routine. Such matters do not usually touch on an individual's integrity, unless the judge has to decide whether one of the parties is lying.

I am unhappy that the proposed test is the balance of probabilities. The test should be the civil standard, and as the procedure develops, the judiciary should be allowed the flexibility to ensure that justice can be done. I urge the Committee to consider the amendment carefully, because it will not prevent recovery from taking place in cases where it should, but it might prevent recovery from taking place in borderline cases, where a judge is worried that, although there might be strong evidence, there might also be a risk of injustice. The civil test allows him that flexibility and margin, which will ensure that confiscations or recoveries that take place under the civil procedure are accepted and that there is not a growing clamour from individuals saying that they have been unfairly treated.

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

I want to reinforce what my hon. Friend ably argued. It is important that whenever these issues are dealt with by fresh legislation we use the most appropriate and most recently judicially approved method of setting things out. For reasons that my hon. Friend the Member for Beaconsfield set out, if we kept the Government's original wording, there may be problems. It would be better if we used the wording in the amendment for the reasons that he gave.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

I am slightly concerned about the attitude of the loyal Opposition that is displayed through the amendment. When it suits them, they seem to argue for discretion to be exercised and vested in the High Court and judges. However, on numerous other occasions—in Committee and at other stages—they want Parliament to assert its sovereign right to establish thresholds that are considered appropriate. In this amendment, they say that the court should establish the threshold of evidential proof that is appropriate to meet the case. The range would be wide. As I understand it, it would range from the balance of probabilities all the way up to the criminal standard in certain circumstances. Is that abdication of our sovereign rights, as politicians with a mandate, appropriate? In circumstances such as this, when we commit ourselves to legislation that will allow civil recovery of the proceeds of unlawful conduct, should we not decide for ourselves and tell the court the appropriate standard to which we wish to work? We would make a choice—a simple election.

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

I understand entirely the hon. Gentleman's point. I cannot remember whether he served on Bill Committees in the last Parliament that

related to criminal justice and civil justice, but I know that he and I have served together on various Bill Committees. He may recall that his Government used the phrase in the amendment in various Bills that were introduced during the 1997-2001 Parliament.

My brief contribution was to point out that the phrase

''the standard applicable in civil proceedings'', which gives the court flexibility, has been used by his Government in recent Bills that have been enacted, so the problem was not as large in those Acts as the hon. Gentleman suggests that it is in this one.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

Order. I have told people off all afternoon for long interventions, and that was another good—or bad—example.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

I accept what the hon. Gentleman said. I am sure that he is right that the terminology was invoked by Parliament in certain legislation and that it would have the impact that was ascribed to it.

I served on the Committee that considered the Bill that was enacted as the Crime and Disorder Act 1998. I asked the other week whether hearsay evidence is admissible, and the parliamentary answer was that it is. The civil standard of proof is a flexible standard, so the front, side and indeed back doors can be used. We should decide where the door should be and how it should be opened for provisions in every Bill that we consider on its merits. When we assume that prerogative, we must face up to the hard question of which threshold we want in a Bill.

I ascribe fundamental importance to this Bill, and I would use the lower threshold at this juncture. I say that for reasons of principle. It is flagship legislation, significant for the reasons stated by many hon. Members, and not least for those stated by my hon. Friend the Member for Glasgow, Pollok: in our country today, communities have been completely destroyed or gravely damaged by criminals who flaunt the proceeds of their wealth in ways that we can no longer tolerate but are currently largely powerless to affect. I recall talking to an hon. Gentleman who described a conversation with someone on an estate in his constituency. He told that person to give up crime because he had talent and could make something of his life. The individual responded that he would need a job that would pay for Gucci shoes and a Boss suit in an afternoon, because that was what his current activities could provide.

That is the position that we face and the threat we must confront. We are entitled and right to choose the lowest level of proof in this instance. I am mindful of the civil liberties implications of such decisions, but this is an introductory chapter to part 5, which includes discretions. Clause 245 has an enabling provision that introduces that chapter, so it is proper to have a low threshold, knowing that the appropriate authority has the chance to exercise discretion in many cases. Other clauses ensure that appropriate discretions and protections are contained in the legislation.

It is right that we, as legislators, make our choice. It is right to choose the lower burden, but we must also diligently take care in considering the main provisions to ensure that appropriate protections prevent injustice.

Photo of Vera Baird Vera Baird Llafur, Redcar 6:30, 11 Rhagfyr 2001

The way in which a judge considers such issues raises serious questions. I have to differ from my hon. Friend. He cited an example of inner-city criminals—there are plenty in Redcar and I do not like them one bit. I do not think that the graver the crime, the lower the standard of proof required. I do not agree that if the public mischief is great, we cannot afford to give people the benefit of the doubt. I worry about such a line of thinking.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

I am not saying that. When we deal with those serious matters, we should not be afraid to have a low level of proof applied in triggering provisions. Different protections can meet the needs of a particular case.

Photo of Vera Baird Vera Baird Llafur, Redcar

I accept that my hon. Friend has a point. Several steps must be taken before the full process of finding against the individual is complete. However, the very commencement of proceedings against an individual is capable of having a draconian effect. It makes available much private information, such as financial particulars. It sets out in the public theatre details of how such individuals live their lives.

It seems to me that one has to be careful, even at this initial stage, not to bind the judiciary to a precise standard of proof that is more usually applicable between equal parties in the civil courts, which is not the case here. It follows from what the Minister said that such proceedings are likely only to be brought against somebody who is not guilty—that is, cannot be proved to be guilty—and who will never be proved guilty. Therefore, the individual will, for all forensic purposes, be not guilty at the outset. When earlier provisions were debated, the people under discussion were those who had already been found guilty of a crime. Consequently, the shift was less exceptionable. The advantage of a more flexible standard is that it builds in a sliding scale, which is not a discretion exercised in an undisciplined way but an appreciation, in a sense, that—contrary to what, perhaps wrongly, I alleged that my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) was saying—the graver the allegation, the more serious will be the consequences, not least to reputation, Certainly, the practical consequences will be more serious, so a more serious cast of mind will need to be applied to those grave allegations than to lesser ones.

In ordinary cases, the balance of probabilities—which is just what that phrase implies—is the appropriate test. I repeat that such cases are frequently between relatively well matched individuals. However, even in such a situation, in which the issue between the two parties—perhaps a bank and a business—may be about recovery of the amount on a cheque, once there is an allegation on one side or the other of fraud, the nature of the judicial process changes: it becomes a stage at which a finding that is quasi-criminal will have to be made. Consequently, the judge will

automatically ratchet up a little the way in which he considers whether the allegation is proved to his satisfaction. I am not talking about the full criminal burden of proof, but a slightly higher test, which is precautionary and cautionary in the judge's mind.

That also works in ways that I do not like—I am trying to make a balanced contribution to the debate—and it applies, too, in domestic violence injunction cases. As a feminist, I am wholly on the side of readily finding that men are prepared to be violent. However, in that situation, judges will say that it is a civil proceeding, which is usually, of course, brought by a woman against a man, and the allegation may be only psychological damage, bad behaviour or harassment, and not quite criminal. However, if it becomes an allegation of serious violence, the judge will ratchet up his approach, step back and say that, in another situation, this matter would be tried on the criminal burden of proof by a jury of 12 people, so he will take it a little more seriously because he has to make an analogous decision to the one that the jury would make, although the consequences are different.

The problem is also presented in cases that concern contact with abusive parents—not parents who swear, but those who have committed abusive acts against a child, which are also fairly appalling allegations to level. A judge in civil proceedings will take a step back and will look with more care at the evidence about those allegations. Frequently, such evidence is difficult to bring because a child is not a satisfactory witness. Women's Aid and other organisations that support children and wives in such situations would say that the trouble is that once we bring in a dangerous allegation, the judge is far less likely to stop contact because he will apply a higher standard of proof. That is a source of difficulty, so contact goes on. It has implicit difficulties, for both the good and the bad.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

I thank my hon. Friend for her interesting and thought-provoking contribution, and ask a question for clarification. Is she arguing for a higher but consistent evidential threshold to be applied on any kind of unlawful conduct that triggers the provision, or for a differential threshold that depends on the type and seriousness of the unlawful conduct in question?

Photo of Vera Baird Vera Baird Llafur, Redcar

My hon. Friend makes an equally thought-provoking and positive contribution, and it is a good question. Are we looking for something that is set automatically a step above the balance of probabilities because it will almost always be a decision that involves a finding of criminality? I have taken my hon. Friend's example of somebody else's criminal conduct, but most of the time it will involve a finding of criminal conduct and so appear appropriate for the judge to caution himself against simply relying on the balance of probabilities. The existence of the example that the Minister gave in an earlier debate—that it could be somebody else's property—perhaps suffices to show that there is the flexibility, but my hon. Friend's point was good.

I am less enamoured by the set of words in the amendment than my contribution has so far suggested. The balance of probabilities is a firm phrase, and it would be difficult to get away from applying that officially, unless a judge—the Committee will have to consider whether this will not follow—who, because of his training and practice, will in every other case apply a sliding scale, is unable not to do so in such a case. In which case, perhaps we are all arguing about nothing. However, it is a slightly artificial position to stick in ''the balance of probabilities'', when one understands that that might not be the test that is applied. I can see that I have puzzled the hon. Member for Spectator, South (Mr. Johnson), and I apologise.

Photo of Boris Johnson Boris Johnson Ceidwadwyr, Henley

I am puzzled, but perhaps not as puzzled as some on the Government Front Bench. It has been a pleasure to look at the marmoreal impassiveness of the Whip and the sterling impression that the Minister has given of being in deep slumber while the hon. Lady has rebelled from the text of the Bill and then found a snaking and labyrinthine way back towards supporting it. I do not know where she will end up, but I thought for a minute that she was going to agree with my hon. Friend the Member for Beaconsfield in his comment that it would be good not to fetter the judiciary. I thought that she was on the verge of agreeing, which is why a momentary frown of puzzlement crossed my brow. If she supports the amendment, I would be jolly grateful if she got to the point.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

Order. The hon. Lady might have more chance to get to the point if interventions were kept short.

Photo of Vera Baird Vera Baird Llafur, Redcar

I confess to the hon. Gentleman, who I know in fact represents Henley, that I did not think that his puzzled look had arisen at that point in my

contribution. I accept the snaking back allegation, but it is not yet complete and the hon. Gentleman must wait a while. I thought that what was puzzling him was my assertion that it might be difficult for judges to keep the law. If that was not it, I will not amplify it further.

Photo of Boris Johnson Boris Johnson Ceidwadwyr, Henley 6:45, 11 Rhagfyr 2001

My puzzlement extends to that point, too. If the hon. Lady wishes to expand on it, no one will be more grateful than me.

Photo of Vera Baird Vera Baird Llafur, Redcar

I will take up the hon. Gentleman's invitation and briefly add to my comments. The way in which judges are trained now is as I described. The Opposition have set out their stall, as it were. They are now at an earlier stage, in that there would be an automatic application of a graver test as the allegation became graver. Perhaps we should research whether there is as rigid a test as the balance of probabilities in any other recent legislation that sets out quasi-criminal allegations. If there is not, we will have the situation of a judge with embedded experience who, in practice, is required to apply a sliding scale and not a rigid test. The Bill will constitute the only exception. That is a difficult position, and the judiciary are unlikely to accept it readily. That explanation was not as short as I had hoped it would be.

That is the crux of my snaking and labyrinthine comments. I am concerned that we are barring the exercise of judgment in people who, after all, are paid for exactly that. They should be allowed to exercise some judgment within the framework that we will set down clearly for them. If the Minister appreciates that I have a real point and am not just being soft on crime, perhaps he might comment now or later in the debate about the judge's dilemma when faced with the flat test and the balance of probabilities.

Debate adjourned.—[Mrs. McGuire.]

Adjourned accordingly at thirteen minutes to Seven o'clock till Thursday 13 December at five minutes to Nine o'clock.