Clause 11 - Assumptions to be made in case of criminal lifestyle
Proceeds of Crime Bill
5:30 pm
Mr Norman Baker (Lewes, Liberal Democrat)
Thank you, Mr. McWilliam. Sometimes, it is difficult to separate the amendments out.
There are different ways of securing safeguards—we are discussing them one at a time, but there are other ways.
As is stated in the helpful notes that the Minister and his colleagues have provided, clause 11
``applies where the court has decided that the defendant has a criminal lifestyle and it is, accordingly, considering the defendant's benefit from general criminal conduct.''
The clause states that the court assessing the defendant's benefits of crime must make four assumptions unless one of two safeguards—such as they are—apply. The first safeguard is if
``an assumption is shown to be incorrect''.
The burden of proof for that lies with the defendant. The second safeguard is if
``there would be a serious risk of injustice''.
When the Committee discusses amendment No. 26, I will argue that those are high tests to meet. That is one reason why I have tabled amendment No. 24, which would give flexibility to the judicial process by replacing ``must'' with ``may''.
It could be argued that the Bill, in common with the legislation that it replaces, makes it possible to impose confiscation orders on defendants whose levels of criminality differ widely, particularly when the prosecution relies on accusations of criminal conduct or criminal lifestyle.
Given the wider nature of the Bill, I wonder whether the Minister and his colleagues have considered whether the requirement of proportionality is likely to be met in all cases that do not involve drug trafficking, and in which there would be a duty to make a confiscation order. It is important that that question is asked in advance, and it is germane to the amendment. That is a wider issue than it was previously, so it is legitimate to ask whether the mechanisms in place are as valid and appropriate for current legislation as they were when they were framed.
With regard to assumptions, the inherent danger is that the court might deem it necessary to grant confiscation orders when the evidence might not be sufficient to support that. That might lead to property being confiscated that might have been acquired innocently.
I support the intention of clause 11. However, although I understand why it has been framed in the way that it has, and I am open to persuasion that the amendment is not appropriate, I felt that it was important to have a debate on the flexibility that the court has to see whether it strikes the right balance between ensuring that those who are guilty of inappropriately receiving the proceeds of crime are dealt with appropriately and ensuring that those who are innocent are not caught up in the process. Inserting ``may'' instead of ``must'' would give the court the necessary flexibility to consider that more carefully and, in extreme circumstances, show the flexibility that the clause would not allow. I will be interested to hear the Minister's comments.