Clause 349 - Statements

Proceeds of Crime Bill – in a Public Bill Committee am 5:45 pm ar 29 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Norman Baker Norman Baker Democratiaid Rhyddfrydol, Lewes 5:45, 29 Ionawr 2002

I beg to move amendment No. 553, in page 202, line 16, leave out paragraph (d).

I refer to the explanatory notes, which recognise that

As part of the Government's response to the judgment of the European Court of Human Rights in the case of Saunders v. UK, Schedule 3 to the Youth Justice and Criminal Evidence Act 1999 amended a number of compulsory disclosure powers in order to prevent a statement obtained under compulsion from a person from being used to incriminate him.

That is a sensible safeguard, and it is right to include it in the Bill. I tabled this probing amendment because I had been contacted by Liberty, as other Members may have been. The organisation appears to think that this is not a good safeguard. In particular, Liberty takes the view that

the use of answers in the circumstances contemplated by paragraph (d) would open a defendant up to a risk of being convicted on the basis of forced self-incrimination.

Liberty says that subsection (2)(d)

does away with any protections that the rest of clause 349—

including subsection (1), which is very clear—

might seek to give to a respondent.

Liberty also says that, if enacted, the measure

would expose the Government to a finding of a violation of Article 6(2)

of the European convention on human rights.

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

As the hon. Gentleman rightly says, we have also been briefed by Liberty. Because Liberty's briefing was couched in strong terms, I was surprised that he said that his amendment was merely probing, especially given that the Government's own explanatory notes talk about the effects of Saunders v. UK in the European Court of Human Rights. If the Government claim to be dealing with the effects of that important case with their wording, but Liberty does not agree, does that not merit something more serious than a probing amendment?

Photo of Norman Baker Norman Baker Democratiaid Rhyddfrydol, Lewes

It depends on the Minister's response. I am open minded about it, and I hope

that he will respond to the issue in constructive terms. I do not want to take too long, as I am conscious that there is a guillotine in six minutes and I want him to have a chance to respond.

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

Without detracting from the hon. Gentleman's points, I shall try to shorten my reply.

There is nothing sinister about subsection (2)(d). It will allow for the use of a statement in criminal proceedings if a person makes an statement inconsistent with it while giving evidence in other proceedings. However, subsection (3) also provides that that provision should apply only if the person has raised the issue himself. It will therefore apply when a person or his representative makes a statement or asks a question about something in relation to which he has previously said something else in response to a disclosure order.

If a person wants to avoid the information that he gave in relation to the disclosure order being raised, he simply has not to raise it himself. If he does raise it and says something completely different from what he said in response to the disclosure order, it is right that the prosecution should be able to mention the disclosure order. It is, of course, a matter for the court to form a view on the credibility of a witness if he has made two inconsistent statements, even though one was obtained under compulsion.

Furthermore, the prosecutor in such proceedings could not bring his case on the basis of the statement. He could adduce the statement as evidence only if the person made an inconsistent statement during evidence. The statement would therefore not be the principal evidence on which the person was incriminated.

The amendment would prevent the use of information gained under a disclosure order in other criminal proceedings when there is inconsistency. It would mean that a defendant could make statements to the director about the proceeds of crime in the full knowledge that whatever he said in those proceedings could not be used against him if he made contrary statements in other proceedings. I do not think that that can be right, and I am surprised that the Opposition want to provide what I see as a substantial loophole.

I reiterate that if a statement made under compulsion in response to a disclosure order were to be used in another trial, it would be open to the defence to make whatever submissions it deemed appropriate to the court, and the court would have to consider that aspect as part of their other deliberations.

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

As I pointed out in a brief intervention on the hon. Member for Lewes, the explanatory notes mention the Government's response in Saunders v. UK. Does not the Minister have some concern about the fact that Liberty briefed the hon. Gentleman and the Opposition, saying the Government had got it wrong and that we need that additional safeguard? The amendment to delete paragraph (d) is an important human rights matter.

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

I think that I made it clear that I do not. I would find it unacceptable if statements made under coercive powers were usable in other circumstances—without the defendant having effectively contradicted the statement that he made under the disclosure order powers. However, the hon. Gentleman, Liberty and I all making the same argument. We are effectively saying that a person can be obliged to make such a statement and then go to court and completely contradict it, yet still the statement cannot be used to expose that fact. In those circumstances, that would not be a great injustice.

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

The Minister may remember that we had a similar discussion on an earlier clause. I reminded him then that other confidential communications—for instance, signed statements relating to a person's finances—cannot be used as material for cross-examination in a trial, although they appear to show that the statement being made is inconsistent with the previous one. Giving Saunders v. UK its entire force, I would rather have thought that the statement made under compulsion was exactly that, and that it was completely neutralised as an argument. Indeed, it should be completely neutralised for all other purposes.

I wonder why the Government think it right to do that, although I understand the point that the Minister is trying to make. It seems somehow to offend against common sense, but it is also rather offensive to normal judicial principles that someone should have to answer those questions under compulsion in the first place.

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

I was trying to shorten my answer, in view of the—

It being Six o'clock, The Chairman proceeded, pursuant to Sessional Order D [30 October 2001] and the Orders of the Committee [13 November 2001 and 22 January 2002], to put forthwith the Question already proposed from the Chair.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 15.

Rhif adran 34 Adults Abused in Childhood — Clause 349 - Statements

Ie: 7 MPs

Na: 15 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

Clause 349 ordered to stand part of the Bill.

Clauses 350 and 351 ordered to stand part of the Bill.