Clause 331 - Offences of prejudicing investigation

Proceeds of Crime Bill – in a Public Bill Committee am 10:30 am ar 29 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 10:30, 29 Ionawr 2002

I shall keep my remarks brief. We have a marathon sitting to get through, even though the finishing post has been moved to 6 pm. I am grateful to the Minister and the Government Whip for the way in which we have made such adjustments as time has required.

We are now dealing with investigations under part 8. Clause 331 is about offences of prejudicing investigation, and subsection (1) states:

''This section applies if a person knows or suspects that an appropriate officer or . . . a proper person is acting . . . in connection with a confiscation investigation, a civil recovery investigation or a money laundering investigation which is being or is about to be conducted.''

Mr. Paul Stinchcombe (Wellingborough): The hon. Gentleman has just mentioned a civil recovery investigation. Given that that would have to be an investigation into unlawful conduct, not criminal conduct, would there not be a problem with definitions?

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

The hon. Gentleman makes a good point. I shall return to it in a moment. The specific problem that hit me when I first read the provision was that it includes a ''money laundering investigation''. How is that intended to dovetail with the offence of tipping off under clause 325? We are creating two almost identical offences, the only difference being that the scope of the offences that can be committed under clause 331 is slightly wider.

I have sometimes described the Bill as ''draconian'', and its intention certainly seems to be to criminalise anyone who transgresses, right, left and centre. Is there not a little overkill in the clause, in that it refers to two offences, one under the money-laundering provisions and one under the investigations provisions, given that one could be subsumed into the other? It is undesirable for Parliament to pass a plethora of criminal sanctions when only one may be necessary.

The hon. Member for Wellingborough (Mr. Stinchcombe) has made a good point. Perhaps we should also consider whether the attempt at a catch-all provision for all three investigations reads properly. The Minister may wish to take on board that point, which did not occur to me when I first read the clause; it may merit consideration.

I should be grateful if the Minister would explain how the Government intend the clause to work, compared with clause 325. This is a probing amendment; I thought that the best way to facilitate our discussions would be to suggest deleting the reference to money laundering, and it would also enable the Minister to learn a little beforehand about the point that I was trying to raise.

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

As we have said previously, the money-laundering provisions in part 7 consolidate, simplify and expand the existing provisions. Current legislation makes a distinction between laundering the proceeds of drug crime and laundering the proceeds of other crimes. That distinction has now been removed. The money-laundering offences in the Bill bite on the proceeds of all criminal conduct. In bringing about that consolidation, we have taken into account the fact that section 58 of the Drug Trafficking Act 1994, the current legislation, makes it an offence to prejudice an investigation into drug trafficking when an application has been made for a production order or a search and seizure warrant.

Section 53 of the 1994 Act contains a general tipping-off offence for those who know or suspect that a constable is acting, or proposing to act, in an investigation that is, or is about to be, conducted into money laundering. It is also an offence for a person who knows or suspects that a suspicious transaction disclosure has been made to the police to disclose information likely to prejudice an investigation. Section 93D of the Criminal Justice Act 1988 is similar

to section 53 of the 1994 Act. We captured the thrust of those provisions in clause 325, which deals with tipping-off disclosures made under part 7, and for part 8 in clause 331, which deals more generally with prejudicing an investigation.

There is a good reason to have separate offences of prejudicing an investigation and of tipping-off disclosures made under part 7. Tipping off under clause 325 applies only when a disclosure is made that falls under clause 327 or 328. Furthermore, as the offence relates to making a disclosure, that could be before the law enforcement authorities undertake or even contemplate an investigation. The offence of prejudicing an investigation might not be sufficient to cover that situation.

Conversely, the offence of prejudicing an investigation might sometimes cover ground that is not covered by the tipping-off offence. For example, if a person knew that an investigation into money laundering was going on because an account-monitoring order had been made, there would not have been a disclosure under clause 325 and he would not have committed a tipping-off offence by telling the subject of the investigation. The amendment would remove one of the important safeguards for the money-laundering provisions.

The offence of prejudicing a money laundering investigation is a significant support in ensuring the success of an investigation. I hope that I have explained that it would not be possible to rely on only the tipping-off offence in clause 325, because in most cases of applications for the powers specified in part 8, there will have been no disclosure under part 7.

I hope that that shows the hon. Gentleman that there is no deliberate duplication, and that the power is necessary, in addition to those in the tipping-off clause.

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

I am grateful to the Minister for providing that clarification, which wholly satisfies me. I wanted something on the record about the relationship between the offences in the two clauses.

I have had the chance to examine further the point made by the hon. Member for Wellingborough, and his anxiety is probably not well founded. The clause refers to investigations, which could apply to a civil recovery investigation as much as to any other. Did the hon. Gentleman try to raise another aspect that I did not understand?

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

We discussed the unusual case of the different definition of criminal conduct as ''unlawful conduct'' in certain clauses. Clause 330(1) carries that through because it states:

''a confiscation investigation is an investigation into . . . criminal conduct''.

However, subsection (2) mentions property rather than conduct itself. That is an unusual consequence of the unusual approach in the Bill.

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

I agree with the hon. Gentleman. He will remember that we highlighted that matter at length when we discussed the civil recovery provisions, and I expressed my misgivings about the whole approach.

My difficulty is that further discussion would reopen an issue that we debated earlier—although I shall be happy if the Minister continues to think about it.

After hearing the hon. Gentleman's point, I wondered whether I had missed something that made clause 331 unworkable or difficult. However, I do not think that I have, so I did not pursue that point further. I am grateful to him for raising the matter, because I continue to be worried about it. I am not allowed to reopen an old debate, although if those who advise me continue to have disquiet on the subject, we may return to it on Report.

I am grateful to the Minister for explaining the relationship between the two offences and for highlighting the fact that the provision originates from the 1994 legislation. Setting out the different offences in this way is not the healthiest way to proceed, but I see the point of it.

Photo of Vera Baird Vera Baird Llafur, Redcar

Before the hon. Gentleman withdraws the amendment, I seek clarification. The Minister put forward the case for the two offences, but I wish to raise two points.

The tipping-off provisions in clause 325 include the caveat that an offence will be committed if a disclosure is likely to prejudice a subsequent investigation. Will there not inevitably be considerable overlap between the two types of criminality in the case of a disclosure that leads to an investigation? A person could be charged under clause 325 or clause 331.

It is not necessary to pursue my second point straight away, but the offence of prejudicing an investigation under clause 331 seems exactly like a classic case of perverting the course of justice. Consequently that provision is unnecessary, and such duplication should be avoided if possible.

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

Order. The hon. Lady is making an intervention, so I ask her to draw it to a close.

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

Instead, I shall bring my remarks to a close, Mr. O'Brien, and allow the hon. Lady to say a few more words before I formally withdraw the amendment.

Photo of Vera Baird Vera Baird Llafur, Redcar

Much more that than the former, I am sure. Thank you for that assistance with procedure, Mr. O'Brien.

I wonder whether the Government believe that they need the clause in addition to the provisions on perverting the course of justice because the provision applies to a civil recovery investigation, too, which is expressly not intended to involve criminal proceedings, and consequently might not fall so clearly within the ambit of perverting the course of justice. If that is the answer, I understand: the provision in the clause is for the avoidance of doubt. However, if that is not the reason, I suggest that duplication should be avoided if possible, and I ask why we need the clause in addition to the common law offence of perverting the course of justice.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 10:45, 29 Ionawr 2002

I do not deny that there is some overlap between clauses 325 and 331. However, in such cases it is important to cover all eventualities. I shall investigate whether perverting the course of justice would cover all the circumstances now covered in clause 331, and I shall return to my hon. Friend as soon as possible.

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

I am grateful to the hon. Lady. As we have considered the clause, other points have arisen. To pick up the comments of the hon. Member for Wellingborough (Mr. Stinchcombe), I might add that civil recovery has a slightly odd status that clearly does not constitute criminal proceedings—so a person would not prejudice a criminal investigation by his action. However, it is possible to pervert the course of justice in civil investigations. Indeed, a former Member of this House got into considerable difficulty and had to serve a term of imprisonment for doing precisely that. The offence is not confined to criminal investigation.

I hope that the Minister will take on board the points that have been made. For present purposes, and having highlighted those matters, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 547, in page 192, line 39, leave out 'a view to' and insert 'the intention of'.

The clause raises the issue of exemption, and the question of legal professional privilege. A disclosure falls within the clause if it is a disclosure to

''a client of the professional legal adviser in connection with the giving by the adviser of legal advice''

''to any person in connection with legal proceedings or contemplated legal proceedings.''

The clause then uses a phrase that I do not remember having considered previously—

''with a view to furthering a criminal purpose.''

Before I allowed the issue to disappear completely, it occurred to me that although the word ''view'' has appeared previously in the Bill, it is slightly odd. What does ''with a view to'' doing something mean? Is not the word ''intention'' better? I accept that if we were to amend it in this case, for consistency's sake we would have to amend it in earlier instances in the Bill, but it suddenly struck me as I read the clause that I should ask about the phrase ''with a view to''. It troubles me slightly, because I am not 100 per cent. sure of the definition, and what it is designed to mean.

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

As my hon. Friend knows, I agree with him. Does he agree with me that if the Government and their advisers are persuaded by his argument and mine that it would be better to use a clearer phrase than ''with a view to'', nothing would prevent the Government from returning with a set of amendments on Report or in another place to ensure that the terminology is consistent throughout the Bill? Does he also agree that at every point in the Bill it

would be far better to use words that are more familiar to the law, as we have repeatedly said in discussing other issues?

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

As I said, there may be a good reason that I have not understood. However, when I read the Bill I suddenly saw something that struck me as slightly odd, which I may have missed on the several previous occasions that I read it. I just thought that I would highlight it and see what the Minister has to say.

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

I think that I can help the hon. Gentleman. Worryingly, I also agree with the hon. Member for Surrey Heath (Mr. Hawkins). Not only is the amendment acceptable, it is helpful. I ask the Committee to accept the amendment, and I undertake to look through the Bill and amend the wording wherever it arises to ensure consistency and accuracy.

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

I am much obliged to the Minister. If he is happy, so am I.

Amendment agreed to.

Clause 331, as amended, ordered to stand part of the Bill.