Clause 248 - Proceedings for recovery orders in England and Wales or Northern Ireland

Proceeds of Crime Bill – in a Public Bill Committee am 2:30 pm ar 13 Rhagfyr 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Amendment proposed [this day]: No. 382, in page 146, line 7, at end insert—

'(1A) All proceedings for a recovery order in the High Court shall take place in chambers.'.—[Mr. Grieve.]

Question again proposed, That the amendment be made.

Photo of Mr Bill O'Brien Mr Bill O'Brien Llafur, Normanton

I remind the Committee that with this we are taking amendment No. 383, in page 146, line 21, at end insert—

'(1A) All proceedings for a recovery order in the Court of Session shall take place in chambers.'.

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

Committee members will be relieved to hear that when the Committee rose at 11.25 this morning, I had formed a characteristically eloquent and well structured submission on the amendment. Unfortunately, I did not take the precaution of making any notes, so my contribution will of necessity be shorter than it might otherwise have been.

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

I do not need a good lunch to forget.

In general terms, I support the amendment, which raises an important point and requires full discussion. It would provide important protection for innocent third parties who may well have substantial business interests brought into question. Mud thrown is mud that sticks.

In an earlier sitting, the Minister of State referred to the difficulties that the hon. Member for Paisley, North (Mrs. Adams) had with drug dealers in her constituency. It was suggested that a security company of doubtful propriety was involved. It is conceivable that many people in her constituency interacted for some time, in good faith, with such ostensibly

respectable companies. They might be brought before the court under proceedings for recovery orders. There must be some protection for people in such circumstances.

The hon. Member for Beaconsfield (Mr. Grieve) made a good point about the personal safety of those who are party to criminal actions. Holding proceedings in chambers would afford third parties a degree of security, so the amendment could be said to strengthen the Bill. I endorse his remarks about the publication of the decision. I see no difficulty with that—publication seems eminently sensible. The amendment offers important protection to innocent third parties, and I urge the Minister to give it serious and careful consideration.

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

The amendment would require that civil recovery proceedings in England, Wales and Northern Ireland take place in chambers. Amendment No. 383 would impose a similar requirement on civil recovery proceedings in Scotland.

Amendment No. 382 would mean that civil recovery proceedings must take place in private rather than in open court—we discussed ''must'' and ''may'' before we adjourned for lunch. We do not accept that such a requirement is necessary or appropriate. The existing rules are sufficient to determine when civil recovery proceedings should be held in private. Under the civil procedure rules, the general rule is that court hearings are held in public. Open justice must be the presumption. That has been our law for a long time and it is now confirmed by our incorporation of the European convention on human rights. There can, of course, be exceptions. Under the rules, any party would be able to apply to the High Court for civil recovery proceedings to be conducted in private. It would be a matter for the court to judge whether that was appropriate in a particular instance.

Although I understand the worries that have been expressed, the argument is that a public hearing is more important because it acts as a safeguard, as it does in criminal cases. The hon. Member for Beaconsfield asked whether we were willing to change ''must'' or ''shall'' to ''may'', but ''may'' is catered for within civil procedures. He suggested that the predisposition should be towards proceedings being taken in private, with an ability to go public. That is not the case. It is the other way round. I accept that that is fundamentally different from his suggestion on how civil proceedings operate. There is a case to be argued for the proceedings to be taken in private.

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

The Minister is approaching such a serious matter in a helpful way. Can he direct me to the facility under which matters can be taken in private? Is he talking about the general civil law or something specific under the Bill?

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

The whole of part 5 is based on civil procedure rules.

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

Is the Minister talking about general civil procedure?

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

Absolutely. There is no difference between what is proposed under the Bill and that which applies to other civil proceedings. I am not suggesting that there is.

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

Even if the Minister is not persuaded by our argument, as I hope he may yet be, will he accept that the presumption should be towards private and that the exception should relate to public? I still stick to that proposal. That would be preferable for all the reasons that have been outlined. It would be helpful to receive clarification under the Bill, given that it explores at length much of the procedure to take account of the revisions that the Government are introducing. Would it not be better to have a reference in the clause to hearings in chambers?

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

We are only recently into part 5. While the hon. Gentleman is absolutely right about parts 2, 3 and 4, he may find a shift of emphasis in part 5 in that there are not generally specific provisions and that it follows the normal procedures. I am told that part 39 of the civil procedure rules covers such issues. He is asking that we make specific provision outside and away from the usual civil procedures. If he is adamant that that remains his view, perhaps we may differ or perhaps we will not.

Serious allegations are made against people in the course of normal civil proceedings. There is no automatic right to privacy. A libel action involving allegations of defamation will nearly always be held in open court. That could potentially be as damaging as, or even more damaging than, anything that might arise in the course of civil recovery proceedings. A civil fraud claim will involve allegations of fraud, but will still normally be held in open court.

As I said, civil recovery does not amount to an accusation that a particular person took part in a particular criminal act. There is no necessary implication that the respondent or a third party in a civil recovery case is guilty of unlawful conduct that generated the original recoverable property. If the case is based on a person having acquired property that is recoverable because of another person's unlawful conduct that will be made explicit in the proceedings, as it will form part of the director's case. Of course, the amendment presupposes that every respondent and third party in a civil recovery case will want anonymity. The hon. Member for Beaconsfield addressed that issue fully in his remarks, and I agree with him that that would not always be the case.

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

I was struck by the Minister's comment a moment ago about the statement on the application that the recovery procedure is against a party who, it has been accepted, has acquired assets innocently. In those circumstances, does he consider that the proceedings should be in chambers if the individual so wishes?

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

No, I would not accept that we should tell the court that proceedings must be in chambers when that condition applies. If the individual concerned wants the proceedings to be in chambers, his representative can make that case and

seek to persuade the court. The court has total discretion and freedom to have private hearings under the civil procedure rules as I understand them. The hon. Gentleman appears to be asking us to say that when the property is being recovered from an innocent third party, the proceedings must be in private. However, the original application will make it absolutely clear that that allegation is being made, and that there is no allegation that the person committed the criminal act, but that they have acquired criminal property.

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

I accept that, but if the decision, against the wishes of the person against whom such an application is being brought, is that the proceedings should take place in public, and the person feels that his business interests will be severely damaged by disclosures and other matters that will have to be aired, the state—which is not another litigant but has responsibilities towards all, including those against whom it is litigating—would see fit to introduce a rule to protect their privacy.

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

The hon. Gentleman is absolutely right, but the rule has already been provided by the state under civil procedure rules. Those rules allow for the court to take that decision having heard representations about the case. The hon. Gentleman is now saying that we should deny the court that discretion, and tell it, in those circumstances, that it must sit in chambers, rather than allowing the same rules to apply that apply in other civil proceedings in which it has the discretion to decide.

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

Let me try to explain to the Minister why my hon. Friends and I feel that a different rule is necessary. Although the Minister has said that parts 2, 3 and 4 may be different, the Assets Recovery Agency is a new creature. The state should strain every sinew to protect those who may turn out to be completely innocent when such a new creature is being created. That is why it would be better for the Bill to provide that such matters should normally be dealt with in private, and that only in exceptional circumstances should they become public. That is why there is a strong case for a different rule to apply from those under standard civil procedures.

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

I am afraid that I do not agree. As I said, normal civil proceedings have the potential to do serious damage to people's or businesses' reputations. Despite the potential for that damage, until now, Parliament has decided that, in general, court decisions should be taken in open court, and that justice should be seen to be done as well as being done. The hon. Gentleman is asking for an exception and a predisposition—at least, when certain issues are exposed—that would allow for private hearings. Such matters are best left to the court; it is perfectly capable of listening to representations and making decisions. We ought not to seek to limit the court's discretion, or to depart from the normal civil procedure rules. The amendment should be withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 2:45, 13 Rhagfyr 2001

I am sorry that the Minister takes that approach. I was prepared to be flexible, although a serious issue is at stake.

In last Tuesday's debate, the hon. Member for Redcar (Vera Baird) highlighted the potentially damaging impact that such a process could have on people. Other hon. Members have made similar points—and some of them are also Government Members.

I accept that the presumption in favour of public hearings is an important principle. I listened carefully to the Minister's arguments, and he has come close to persuading me—for instance, in serious cases in which individuals are accused of personally possessing the proceeds of their own unlawful conduct, I agree that important public policy issues must be taken into account, and that justice should be seen to be done, and that the seriousness of the allegation should be considered. As he knows, I have anxieties about the test that will be applied, and the nature of the proceedings, but I can see the argument for conducting such proceedings in public—unless the court decides that there are compelling reasons not to do so.

However, as the Minister has stated, unusual cases will arise in which proceedings are brought against a person who, it is acknowledged at the outset, is either a bona fide purchaser or the innocent recipient of money. In such circumstances, it would be extraordinary if even the court were left with the discretion to decide whether the proceedings should be public or private. I can see no public policy reasons whatever why that should not be a private process, unless the person being subjected to it wishes otherwise.

Photo of Vera Baird Vera Baird Llafur, Redcar

I understand the cause for concern. I wish to recruit an argument that I made yesterday. An accountant might be a named party in such proceedings, and he might be found to have behaved wholly properly. However, during the proceedings, the publicity that attaches to him could be very damaging to the confidence that his other clients might have in him as an honest accountant.

I also advocated that there should be a code of practice for the director of the Assets Recovery Agency, which I likened to the code of conduct for Crown prosecutors. That code might include a duty for the director, in advance of bringing proceedings that involve an innocent third party, to consider whether he might wish to make an application to the court for the proceedings to be held in private, because, although my hon. Friend the Minister is absolutely right that the court has that discretion, it would be much more likely to exercise it if the application were to come from both sides. Furthermore, the director might be glad to have the duty to consider that. I pray it in aid again as a suggestion that there should be a guide.

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

I am very grateful to the hon. Lady. At lunchtime, when I reread the remarks that she made on Tuesday, they immediately brought to mind her

comment about the code of conduct. That was an unfortunate consequence of not having a chance to reread Hansard before this morning's proceedings, because I would have raised that issue when closing my submissions on the amendment that we were only halfway through discussing. She made an important point. It slipped my mind when I made my closing remarks about the balance of probabilities.

If such a code were offered and details were provided, it would be good grounds for no longer having such an anxiety. I agree entirely with the hon. Lady about the code if it provided that the director must pay due regard to the need for privacy in cases when an individual's interests may be damaged and, included within that, the nature of the director's case against that individual in seeking to recover the particular assets. When such a code was set up, one could easily have a joint application to the court when the director said, ''We fully accept that, although we are seeking to recover money from this particular individual, this is not a case in which he has personally committed unlawful conduct. Although we believe that the assets should still be recovered, we would support his application that the matter be dealt with in chambers, because he falls within the category of an innocent recipient.'' That would go a long way towards solving the problem. I shall give the Minister an opportunity to say that he is minded to go along with our proposal.

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

I am enormously aware of the fact that the hon. Gentleman, as well as my hon. Friend the Member for Redcar, has experience of matters that I do not have, but surely he accepts that there is a code. It is the civil procedure rules. It is our desire that those rules should apply absolutely to the director. They will govern him and everyone else. The hon. Gentleman is suggesting that there should be a separate code, other than the civil procedure rules, that applies specifically to such cases and to no other civil recovery cases. I am stretching for the justification for such an argument.

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

The justification starts with the premise that the proceedings are, by their very nature, unusual. What generally goes on in civil courts is the litigation of individual rights between individuals—claims by one individual or corporation against another. Here, we are talking about a state-sponsored mechanism for recovering assets from an individual. Furthermore, as the Minister has accepted, we are discussing the recovery of assets that need not otherwise be impugned either by the taint of criminality—because no criminal charge has been brought—or by a claim of any other individual. There may be cases when the money has also been claimed by another individual as the assets of crime, but that is not necessarily the case.

In those circumstances, surely we are much closer to the processes that take place before the special commissioners of income tax than to ordinary court procedure. I have serious doubts about importing ordinary civil rules to that procedure under the Bill, because it does not bear much resemblance to the

rules. I am not sure that the discretion under part 39 of the civil procedure rules is helpful, although the courts might starting making use of it.

I do not know about the experience of other members of the Committee who have practised in legal matters, but I have never taken a civil case in which the court sat in chambers unless it was specified in the rules that that was the ordinary practice, as it is in family law work, for example. I have heard of cases in which the court has gone in camera to hear evidence that is particularly difficult or sensitive. I can apply only my own experience, and I have not encountered that, although other hon. Members who are solicitors or barristers with practising certificates may have knowledge that I do not.

I am concerned that, unless the habit develops over time, courts will follow their usual practices and matters will be heard in open court. As the procedure is between the state and a person, the state, through the director of the Assets Recovery Agency, has particular responsibility to act in a totally fair manner and to have regard to the impact that proceedings will have on innocent people. That is different from the adversarial system, which sets one civil litigant against another.

Parliament and the Government could lay down a sensible rule. That rule might not have to be as broad as the one that I suggest, but I urge the Minister to go away and speak to his advisers. He should think about the matter and consider whether he is prepared to return with a concession that could mete out the justice needed in such cases. So far, he has not given an inch, and in light of that I intend to press the amendment to a Division. I will also come back on Report with a slightly different proposal that may commend itself to him more than the broad amendment currently proposed. I regret that, in the absence of any concessions or indications that the Minister will do anything about the matter, I want to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 13.

Rhif adran 16 Adults Abused in Childhood — Clause 248 - Proceedings for recovery orders in England and Wales or Northern Ireland

Ie: 6 MPs

Na: 13 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Mr. Grieve: I beg to move amendment No. 355, in page 146, line 17, at end add—

'(5)The claim form must give details of the criminal offence or unlawful conduct relied upon in accordance with a code issued by the Secretary of State prior to implementation.'.

Photo of Mr Bill O'Brien Mr Bill O'Brien Llafur, Normanton

With this it will be convenient to take amendment No. 353, in page 146, line 26, at end insert—

'(2A)The application must contain details of the criminal offence or unlawful conduct relied upon in accordance with any code that may be made by act of sederunt.'.

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

The clause—apart from clause 249, which deals with Scottish procedure—is the only clause that amplifies the civil procedure rules. We must deal with the question of what information the enforcement authority must supply in a claim form. It is interesting that those who drafted the Bill felt that the matter was one to which they should attend. If the Minister was so confident that the procedure was compatible with civil rules, the matter would not need to be spelled out. Let us examine the Bill. It states:

''If any property which the enforcement authority wishes to be subject to a recovery order is not specified in the claim form it must be described in the form in general terms; and the form must state whether it is alleged to be recoverable property or associated property.

(4) The references above to the claim form include the particulars of claim, where they are served subsequently.''

I tell the Minister, who has been so ready to tell us that the ordinary compliance with the civil procedure rules will be sufficient for these purposes, that I smell a little rat. Subsections (3) and (4) appear to reduce what one would expect in a modern claim form, especially post-Woolf. I would expect modern claim forms to be fairly detailed documents. I have a slight suspicion that subsections (3) and (4) suggest that the form's scope can be limited, because it states that the property should be described in only general terms.

I am mindful that the Minister will say, reasonably, that at the start of proceedings it may be difficult to identify all the property with which we are concerned in detail. Therefore, part of our discussion, before we move to the amendment, is to ask him to elucidate how he sees the clause working in practice. I am worried that the amount of information that must be supplied at the start of a claim may be less than what one might normally expect. I want to ensure that respondents know as much as possible about what is alleged against them.

The amendments would take the matter a little further and provide that the claim form must give details of the criminal offence or unlawful conduct that was relied on in accordance with a code issued by Secretary of State. I have made a nice concession to allow the Secretary of State to come up with a code that meets the director's requirements. I know from the previous discussion that there may be circumstances in which a criminal offence has not been alleged against the person against whom the proceedings are brought, but a criminal offence would be alleged against the person from whom he obtained the property. That should be clearly spelled out in the claim. If that does not happen at that time, it begs the question, at what stage in proceedings will the

particulars be provided? The proceedings are draconian and novel and it is incumbent on the director to spell out the allegations as early as possible.

There are two issues for the Minister to consider. What do subsections (3) and (4) do in practice, and to what extent are they present to mitigate the requirements of the civil procedure rules? The Minister may tell me that the subsections would amplify the rules, but I am not convinced. How would the amendment, which I commend to the Committee, help to ensure that the respondent, at the time of the claim, is fully aware of the nature of the case that the director will make?

Photo of Mark Field Mark Field Ceidwadwyr, Cities of London and Westminster 3:00, 13 Rhagfyr 2001

I must confess that, unlike my hon. Friend, I am not a great civil litigation expert. That was the case before and since the Woolf reforms. However, there are two minor points on which I seek the Minister's guidance. I appreciate, on one hand, the sensitivity about going into great detail about the particulars of a claim, given the nature of confiscation orders and the controversial nature of individuals who are before the courts, especially the Mr. Bigs who have large-scale illicit business empires. However, I share the concern expressed about the broad-brush approach to particulars of claims, and I suspect that a formulation will be used on every form that will subvert the changes brought about under the Woolf reforms. I am also concerned that using a standard form of words will enable fishing expeditions to take place, and justice will not be done in that regard.

I appreciate that my hon. Friend wishes to hear whether the Minister has any further comments, after which we may wish to elaborate on the matter.

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

I have broad sympathy for the end that the hon. Member for Beaconsfield wants to achieve in relation to amendment No. 355. With regard to the provision envisaged under amendment No. 353—the parallel Scottish provision—I presume that it is intended that it should mirror the position south of the border. I have reservations about whether it is an appropriate way of achieving that. Having said that, I do not know what would be an appropriate way of doing it.

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

In formulating the provision, I was having a stab in the dark. I have no pretence at expertise on Scottish law. It was suggested to me that that might be the appropriate way of doing it, and it was the best that I could do.

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

I have every sympathy with the hon. Gentleman. It strikes at one of the difficulties with regard to the Scottish provisions, which I previously identified, inasmuch as the power vested in the Assets Recovery Agency south of the border is vested in the Lord Advocate north of the border. If the Secretary of State or equivalent is to produce a code, the Lord Advocate would produce a code in Scotland, in which case he would be producing a code for himself. He would therefore be trying to direct himself, which is a nonsense. My reservation about using an act of sederunt is that I recollect that that is promulgated by

the Lord President of the Court of Session. Having gone beyond what is effectively a normal procedural point, it is not appropriate for the Lord President to issue instructions to a Minister of the Crown.

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

I understand the hon. Gentleman's point. One of the things that worried me about the Scottish amendment as I drafted it was that it is not mandatory. It almost invites the Scottish judiciary and the Lord President to do something. That was why I hesitated about trespassing on areas of Scots law about which I have no knowledge. Perhaps the hon. Gentleman, or any other Committee member who is qualified in Scots law can come up with a better suggestion, as the principle at which I am aiming is clear.

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

It is a principle with which I have broad sympathy. I cannot see a better way of achieving the aim of the amendment, and it may be a necessary compromise in those circumstances. That is a difficulty with the legislation in its current form, on which I have made my views known to Ministers and hon. Members on both sides of the House privately, without necessarily putting them on the record. This may be a good opportunity to place them on the record. I fear that the continued exercise of such functions by the Lord Advocate will cause problems, and the biggest problem will be instruction and accountability. However, we have been unable to persuade the civil servants of that, so I shall not be tilting at windmills today.

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

There could be any number of reasons why the hon. Member for Beaconsfield anticipates the arguments that I shall throw back at him. Perhaps he is simply good at guessing, or perhaps we have spent so much time together that he can now read my mind. Far and away the most likely is that he is good at taking a brief and is at least as capable of arguing against his amendments as he is of arguing in favour of them. I suspect that, despite his protestations about its being an extremely unusual procedure, he knows that that is true and is advancing an argument for the sake of it. He would be just as capable of arguing the other way.

Amendment No. 355 would require the claim form to give details of the criminal offence or unlawful conduct on the basis of which the property listed or described on the form is alleged to be recoverable. The details would have to be given in accordance with a code issued by the Secretary of State. Amendment No. 353 would make the same provision for Scotland.

Civil recovery procedures, like normal civil proceedings, will begin when the court issues a claim form at the request of the claimant. Requirements on the content of the claim form are specified in the civil procedure rules. For example, the form must contain a concise statement of the nature of the claim, including a concise statement of the facts to be relied on. It must also specify the remedy that the claimant requests.

The claim form will also include particulars of the claim, although they may be served separately. Under the civil procedure rules, they must include a concise

statement of the facts on which the claimant relies. In practice, that is likely to include details of the unlawful conduct that is alleged to have generated the recoverable property. It should not, therefore, be necessary for the Bill to require the claim form to give details of the unlawful conduct. The enforcement authority will in any event have to disclose the details of its case, including documents and witness statements, before the start of the trial, which will give the respondent adequate opportunity to mount a defence.

The amendment would require the Secretary of State to issue a code in respect of the details to be given. It is unclear what advantage that would have over the requirements already specified in the civil procedure rules; nor is it clear what exactly would feature in the code.

The amendment implies a link between a specific criminal offence and the property involved. Although it may be possible to demonstrate such a link, clause 247(2)(b) makes it clear that property obtained through unlawful conduct need not be linked to a specific offence. It is not necessary to show that property was obtained through a particular sort of unlawful conduct as long as it can be shown to have been obtained through some sort of unlawful conduct.

The wording of clause 247(2)(b) is intentional. A requirement to show a link with a specific offence would reduce the effectiveness of civil recovery. Indeed, the difficulty of showing such a link might have been a reason why criminal prosecution was not possible in the first instance.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 3:15, 13 Rhagfyr 2001

I confess that the Minister now worries me slightly. We are discussing a claim in which the burden relating to the balance of probabilities is on the director to establish to the court's satisfaction that, on the balance of probabilities, a particular item constitutes proceeds of unlawful conduct, either on the part of the individual involved, or on the part of another person, and that the individual involved has acquired them in some form. From that, I would have assumed that it was central to the case that the director should at least be able to establish what is the unlawful conduct that he alleges is the centrepiece of the case.

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

That is not necessarily the case. We have discussed widely how criminal proceeds may become dissipated, how they may change and change again. We have discussed how, in the course of his investigations, the director will have to pursue those changes to the end. No doubt, he will know that it is not simply a case of a tree growing from a single point—a particular criminal offence—but that there two ends to those roots. Criminal proceeds may become intermixed in such a way that they cannot possibly be unravelled. They may also be hidden in some complicated process, often by design, to prevent their discovery.

Nothing that I have said—and nothing in the clause—detracts from the necessity for the director to show, on the balance of probabilities, that those proceeds are the proceeds of crime. Nothing can take that away. The hon. Gentleman need not fear that. We have discussed the type of situation in which a gang may have carried out a gold bullion raid, when the bullion subsequently becomes cash, then property, and then cash again. The same gang, or associated gangs, may have pulled off a bank robbery, too. To insert a requirement that makes it necessary to prove that the proceeds came from the gold bullion raid and not the bank robbery would be ridiculous beyond belief.

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

This is an interesting and an important discussion. I accept that, in civil recovery proceedings of the proceeds unlawful conduct, it may be possible to invite the court to draw an inference—from the totality of the evidence—that the only explanation for the origin of assets is unlawful conduct. However, I should also expect that, if the director believes that there are specific assertions to be made in respect of property, he will make those assertions. It worries me that what the Minister has just said sounded very much like the assumptions under the confiscatory procedure, which plainly it is not.

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

No, it is not. It is civil recovery of the proceeds of crime, requiring the director to show, on the balance of probabilities, that the property concerned is the proceeds of crime. It would make life unnecessarily difficult if the director had, in every single case, to show that the proceeds were those of a particular crime. I do not think that the hon. Gentleman believes that to be a necessity, nor that he wishes us to go down that road. I am not saying anything that detracts from the level of proof required by the director to prove his case. I do not accept his point and I certainly do not accept that the director must, in all circumstances, prove the individual criminality that led to the proceeds being generated.

Amendment No. 353 to clause 249 would take the same action in respect of Scotland. The hon. Gentleman asked me specifically to confirm or otherwise why subsections (3) and (4) were drafted and whether they attempt to limit the requirements under the civil procedure rules. The civil procedure rules will apply in full to the claim form procedure. Subsection (3) is intended to clarify one particular aspect of what must go into the claim form under civil procedures. He is absolutely right. We are seeking to amplify, not restrict, what is required under the civil procedure rules. For those reasons, I ask him not to press that amendment.

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

Again, I am slightly disappointed with the Minister's response. The amendment does not seem incompatible with what he says should be possible within the framework of such litigation. The amendment says:

''The claim form must give details of the criminal offence''.

Obviously, if someone knows of a particular criminal offence, one would like to hear about it and learn, for example, that these are the proceeds of the robbery that took place at X bank on Y date.

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

It is my understanding that it is not so much the case that we would like to hear about the offence but that there would be a requirement to disclose such information.

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

There is also the concept of unlawful conduct. It would be worrying if the Minister could launch litigation to recover the proceeds of unlawful conduct without being able to identify—even in general terms—what unlawful conduct the person is alleged to have committed or is connected with by innocently receiving money. That would suggest that proceedings could be launched as fishing expeditions, and that was not the Government's intention in introducing the Bill. If that is the intention, the sooner it is knocked on the head the better. The Minister has not satisfied me about the clause.

Photo of Vera Baird Vera Baird Llafur, Redcar

Is it not plain that the court will not be able to carry out its duty under section 246(3) to

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

(a) that any matters alleged to constitute unlawful conduct have occurred'' unless those matters are specified on the claim form? How can a judge make a finding of that kind if he does not know what the unlawful conduct is?

It has been repeatedly said that the white book, with which the hon. Gentleman is well acquainted, will be part and parcel of the procedure. Any aggrieved respondent will be able to apply for further and better particulars and interrogatories in the normal way. Refinements from proceedings are a great feature of the civil procedure rules. The hon. Gentleman has nothing to worry about.

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

The hon. Lady makes a good point. I was about to say that if the information could not be provided, the case would have no prospect of getting off the ground. I shall reverse the argument—I am prone to doing that, but it is worth doing. If the information must be provided, why should that not be spelled out in the Bill? I am more than 90 per cent. confident that she is correct. If information about the criminal offence cannot be supplied, the action has no chance of success, but why not spell out that it should be supplied?

The amendment was promoted by the Law Society, which expressed anxieties about the issue. It considered the matter and thought that the issue should be further refined. Fortified though I am by the hon. Lady's comments, I do not understand why the provision should not be in the Bill. It should be included because of the unusual powers that may be exercised. I see that the Minister is being handed a note, so I shall give him the opportunity to intervene if he wishes to do so.

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

While my hon. Friend is pausing for the Minister to read the note, perhaps he will accept an intervention from me.

My hon. Friend is right to say that the Law Society shares our concerns. I draw the attention of the hon. Lady and the Minister to the fact that the Law Society expressed its concerns in the following way:

''Vague assertions should not be sufficient to allow the appointment of interim receivers and/or recovery proceedings or orders to be made''.

If criminal conduct is alleged, as much detail as possible should be supplied about it. I accept what she says about the white book, with which I, too, am reasonably familiar, or was some years ago. If the Law Society of England and Wales shares our concerns, that should be put in the Bill.

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

I am grateful to my hon. Friend for those remarks. However, I will not respond to them, as the Minister wishes to say something.

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

I have very little to say, I am afraid. I have received some information. With regard to our earlier discussion, there is no need to spell out that it should be supplied, because of the civil procedure rules. I doubt that the hon. Gentleman finds that exciting, and it is a great shame that he is, repeatedly, so disappointed in me.

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

Although I am grateful to the Minister, Timeo Danaos et dona ferentes. I wish to press the amendment to a Division.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 10.

Rhif adran 17 Adults Abused in Childhood — Clause 248 - Proceedings for recovery orders in England and Wales or Northern Ireland

Ie: 4 MPs

Na: 10 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

On a point of order, Mr. O'Brien. For the benefit of the ignoramuses—such as me—who are present, can it be arranged for Hansard to include a translation of the Latin phrase that was quoted?

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

Further to that point of order, Mr. O'Brien. I am sure that the staff of Hansard are familiar with the expression, ''Beware Greeks bearing gifts.''

Photo of Mr Bill O'Brien Mr Bill O'Brien Llafur, Normanton

That is not a point of order for the Chair.

Clause 248 ordered to stand part of the Bill.

Clause 249 ordered to stand part of the Bill.