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Clause 11 - Assumptions to be made in case of criminal lifestyle

Proceeds of Crime Bill – in a Public Bill Committee at 5:30 pm on 20th November 2001.

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Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs) 5:30 pm, 20th November 2001

I beg to move amendment No. 24, in page 5, line 37, leave out `must' and insert `may'.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

With this it will be convenient to take the following amendments: No. 51, in page 5, line 37, leave out

`make the following four assumptions'

and insert

`follow the following four criteria'.

No. 52, in page 5, line 41, leave out `assumption' and insert `criterion'.

No. 53, page 6, line 1, leave out `assumption' and insert `criterion'.

No. 54, page 6, line 5, leave out `assumption' and insert `criterion'.

No. 55, page 6, line 8, leave out `assumption' and insert `criterion'.

No. 56, page 6, line 11, leave out `make a required assumption' and insert `follow any such criterion'.

No. 57, page 6, line 13, leave out

`assumption is shown to be incorrect' and insert

`criterion is shown to be inapplicable'.

No. 58, page 6, line 14, leave out `assumption were made' and insert `criterion were followed'.

No. 59, page 6, line 15, leave out from `not' to `it' and insert

`follow one or more of such criteria'.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

As the hon. Member for Beaconsfield said earlier, it is difficult to predict how Committees will go. I imagined that we might get to clause 11 earlier, but in the event we had a useful discussion on clause 10.

Clause 11 is one of the most important clauses, along with clauses 6 and 75. The amendment in my name, in those of my colleagues and in those of the Conservatives, raises important issues. Yet again, we have an amendment that would replace ``must'' with ``may'' and would build in some discretion for the judicial process. No doubt the Minister will characterise that as weakening the Bill. That charge can unconsciously be made, but there is always a balance to be struck between ensuring that legislation is effective and attains the aims that the Government wish and that Members of all parties share, and ensuring that sufficient safeguards are in place to prevent miscarriages of justice or inappropriate behaviour that cannot be challenged. The Committee will frequently discuss that key balance. It is dealt with in the amendment, although there are alternative places in the clause—and in the Bill—where it would be possible to build in safeguards.

Photo of Mark Lazarowicz Mark Lazarowicz Labour/Co-operative, Edinburgh North and Leith

The hon. Gentleman said that the clause allows no discretion to the court, but subsection (6)(b) states that the court is allowed not to make an acquired assumption if

``there would be a serious risk of injustice if the assumption were made.''

Does that not offer the court the type of discretion that the hon. Gentleman seeks?

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

For the record, I did not say that there was no discretion. I said that a balance needed to be struck.

That subsection is, in many ways, the nub of the clause, and I will remark on it later. However, I have tabled an amendment to that subsection, which will be considered later on this afternoon, and I do not wish to be ruled out of order by discussing the issue now.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

The amendments are grouped, so hon. Members can be relaxed about such matters. However, amendment No. 26 is in the last group, and we will address the point that has been raised when we discuss that group. The hon. Gentleman is right not to try to persuade other hon. Members into territory that is intended to be discussed in a different debate.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

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.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 5:45 pm, 20th November 2001

As the hon. Gentleman rightly said, we on the Conservative Benches wish to associate ourselves with amendment No. 24 and amendments Nos. 51 to 59. I want to expand a little on his comments because serious points have been put to my hon. Friend the Member for Beaconsfield and me by Liberty, which is an organisation that has always had all-party support. Indeed, it has support from several Government Members in the Committee, although not all of them are in the Room this afternoon.

Before anyone is accused of trying to tear out the heart of the Bill or protect the Mr. Bigs, let me say that Liberty does not want to undermine the legislation, but still has substantial concerns. It believes that the Government have not got the balance right. It provided some helpful international comparisons with the way in which the provisions operate in other jurisdictions. Without wanting to bore Committee members with legal cases, which I know would be dismissed by Government Members as lawyers trying to find loopholes, I want to draw attention to ways in which foreign jurisdictions have been used in the most serious recent cases in our courts.

One of Liberty's points is that bad law can lead to greater problems if the courts strain to criticise legislation that Parliament has enacted. That may lead to the exact consequences that worry Government Members such as the hon. Member for Glasgow, Pollok: that the courts' unhappiness about Parliament's drafting will lead to loopholes being created in the courts. He and I share the aim of not wanting the Mr. Bigs to escape, so we must ensure that the law is balanced and proportionate, which is what Ministers have claimed since Second Reading.

Lord Woolf, one of our most serious judges, and hardly one of the airy-fairy civil libertarians whom the Home Secretary has recently criticised, referred in a 1993 case to American cases on how the balance should be struck. I will set out what Lord Woolf has said, and I apologise to Committee members for the technicality, as they may not be familiar with the way in which such matters are set out in court.

Both Liberty and Lord Woolf are concerned that the application of the statutory assumptions in the Bill would create a mandatory forensic exercise in which there is potentially no rational connection between the facts proved by way of the trigger convictions and the ultimate facts presumed. Various jurisdictions have already considered in other cases what safeguard tests should be applied to determine when it is appropriate for reverse burden assumptions to be permitted.

In other words, courts in other countries, which are sometimes the highest courts in those lands, have considered the safeguards that are required to make the law work properly and ensure that civil liberties are not completely trampled over. The test has been expressed in different terms, but the requirements are similar. They are to make the initial application of assumptions by a court devoid of arbitrariness.

Lord Woolf discussed a case in the United States that he applied in connection with a case in this country. He said that there was a

``substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.''

That was the case of Leary v. the United States in 1969. In 1993, Lord Woolf said that that was the minimum safeguard without which it would be difficult to justify a reverse-burden provision. Lord Woolf is one of the most senior judges in the land, and he wants the laws to work and he, like us, wants to ensure that the Mr. Bigs are hit. He regards the phraseology used in the American case as the minimum safeguard. Liberty and the Conservatives are worried because the Government's proposals do not provide even the minimal safeguard that one of our senior judges regards as essential.

Liberty has identified many cases in Hong Kong, Italy, South Africa and Canada, but I shall not bore the Committee with those. There is little point in going though those cases in detail, although if the Minister mentions them, I may return to them at a later stage. That is the way in which the matter has been set out to us.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

Can the hon. Gentleman refer to any case in British law that has examined the assumptions that have been part of our law for a long time?

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

Yes. The case that received Lord Woolf's judgment was the case of the Attorney-General of Hong Kong v. Lee Kwong-Kut.

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

The case came to the Privy Council, which, as the hon. Gentleman knows, decides cases that fall for decision by our judges as a matter for our courts. The case was brought to the House of Lords, which is why Lord Woolf heard it.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

The hon. Gentleman knows that, strictly speaking, such cases are not part of our law, although they may be cited, and may be persuasive. Can the hon. Gentleman cite a British case that was decided in British courts?

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

The hon. Gentleman may not understand. Our Judicial Committee of the Privy Council, which consists of our judges, took the decision. The judges are those that sit in the House of Lords and they use our principles of jurisprudence. As a sensible lawyer, the hon. Gentleman is surely not suggesting that when Lord Woolf sits on a case that starts in England, that is authoritative, but if he sits—in this building—on the Judicial Committee of the Privy Council and uses all the principles of English jurisprudence to hear a case that started in Hong Kong before our responsibility there ended, his remarks are not part of English jurisprudence. I know that the hon. Gentleman would not suggest that. The principle is exactly the same: although the case started in Hong Kong, it is English jurisprudence.

After examining the minimum safeguards to which Lord Woolf referred, Liberty suggested that we needed to replace the word ``assumption'' with the word ``criterion''. Liberty set that out by reference to much case law, which it would not be helpful for me to go through in detail. Again, however, if the Minister refers to it, I may need to respond. This time, however, I hope that when Ministers respond to the amendment sensibly and moderately tabled by the hon. Member for Lewes, which we support, they will not indulge in party political knockabout, and will not accuse us of trying to undermine the principles of the Bill. We should be moving beyond that. We should be looking at serious minimum safeguards. Whether it is the Minister of State, who is proud of not being a lawyer, or the Under-Secretary who responds, I hope that whoever does so will not make the mistake of trying to attack our genuine concerns, which are based on the advice of Lord Woolf.

Photo of Mark Lazarowicz Mark Lazarowicz Labour/Co-operative, Edinburgh North and Leith

I had hoped to intervene during the hon. Gentleman's speech, and I hope that this point will be dealt with in due course. Does the hon. Gentleman believe that the application of the tests that he suggests, which would replace assumptions by criteria, would have any practical effect on the prospect of a court's reaching a different decision in a practical case? Does he not accept that the tests that he applied are likely to achieve a similar result when applied in an actual case? Rather than making a serious criticism of the line put forward by the Government in the clause, the hon. Gentleman is merely making a debating point.

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

I had not intended to speak, but I shall do so briefly. The distinction between the approach in the clause and the approach suggested by the hon. Member for Lewes and my hon. Friend the Member for Surrey Heath seems clear. One is mandatory, whereas the other is a series of discretionary provisions, thereby allowing a measure of judicial discretion, when, currently, no such discretion is allowed—we have had this debate previously. That ties in, to an extent, with the different regime that we thought would exist between England and Wales and Scotland, but which will now, apparently, be disposed of in order to satisfy the Government's desire for uniformity, notwithstanding the arrival of devolution.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

Does the hon. Gentleman accept that any change is designed not to create uniformity but to improve the Scottish position?

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. Before we chase down that road, that matter can be discussed under a later clause. It would not be in order to discuss it now.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 6:00 pm, 20th November 2001

I shall not be drawn to a detailed examination of the Scottish position. However, the intention is simply to highlight the fact that there are differences in the Bill between the regime for England and Wales and that for Scotland. Judging by the comments of the hon. Member for Edinburgh, North and Leith (Mr. Lazarowicz), he seemed to be gently putting the same point that I had put earlier, which was to ask whether it will really make a difference. The Committee will recollect that when we were considering clause 6, I said that it might make a difference but probably not an enormous one. It is a safeguard provision. I preferred the Scottish approach, and in the same way, I prefer the approach of the hon. Member for Lewes and my hon. Friend the Member for Surrey Heath. It provides a measure of flexibility, whereas so much of the Bill has an inbuilt inflexibility, which is apparently designed to ensure that the Government's aims and objectives are achieved, and are not deflected by the problems of poor grocer creditors living round the corner, who have provided services to an individual whose money is to be confiscated, or, in this case, by a wishy-washy—perhaps I should use the word ``airy-fairy''—judiciary, which might get it into their heads that the assumptions that they are required to make are clearly not meeting the interests of justice in a particular case. In a nutshell, that is what this is about.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

Has the hon. Gentleman considered the effect of subsection (6), which gives considerable discretion to the court?

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

The hon. Gentleman makes a good point, and I accept that subsection (6) provides a let-out clause. That is as far as the Government have been willing to go.

In response to the comment by the hon. Member for Edinburgh, North and Leith, let me say that we are not driving a coach and horses through the principle. We are asking for a small extension of the principle so that, in addition to the provision in subsection (6), the judge is allowed to exercise discretion throughout the process. It would make for better drafting, which would better meet the needs of justice. This is not an enormous issue—issues in Committees are often not—but it may have telling consequences.

Photo of Mark Lazarowicz Mark Lazarowicz Labour/Co-operative, Edinburgh North and Leith

Does the hon. Gentleman accept the important principle of legal certainty, as well as the principle of allowing courts discretion? Does he accept that substituting assumptions with criteria could lead to different courts applying the tests in different ways? That could lead to injustice, whereas the provision for assumptions—with the qualification in subsection (6)(b), which allows the court not to make the required assumption if

``a serious risk of injustice'' is shown—would achieve legal certainty in a way that his formula would not.

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

I accept the hon. Gentleman's point, but the risk of that happening is not significant enough to make the amendments objectionable. They may lead to a slightly greater degree of variation, but that is not something that I would necessarily worry about, as all cases turn on their own merits. I am concerned that the Bill's attempt to impose uniformity may not meet the interests of justice. Ultimately, we must consider that.

I also accept that we must consider the desirability in terms of public policy of laying our hands on the assets of criminals—albeit not just any old assets. It is worth the Committee remembering that. Listening to the debate, I sometimes think that the measure is punitive and designed simply to remove criminals' assets. [Interruption.] The Minister shakes his head in disapproval and says, ``No, it isn't.'' I am glad to hear that. However, listening to some of the Back Bench contributions—although not that of the hon. Member for Edinburgh, North and Leith—one gets the impression that that is what the Bill is about. If it is not, we must ensure that, once a criminal lifestyle has been assumed, the system set up includes criteria that allow a greater degree of judicial flexibility than the measure provides. At the risk of repeating myself, that is especially necessary because we are widening the categories of individuals and offences that will be dealt with under the measure so much.

I may be wrong about that. In practice, given the discretion of the director and the prosecutor, exactly the same old category of offender may be targeted. If so, the Minister would simply have to say that the legislation had not worked, because it is clear that he wants to cast the net much wider. Those are also compelling reasons for widening some of the safeguards and judicial discretion to ensure that justice is done.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

I accept that this is an important point, but I am having difficulty in grasping the circumstances in which the hon. Gentleman wants the provision to be exercised. Changing the word ``must'' to ``may'' would imply that there were circumstances in which the provision might not apply. Will he clarify the circumstances in which he would look to a judge not to proceed down the road set out in the Bill?

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

I can envisage circumstances in which the judge might decide that in the interests of justice, the public need to confiscate assets should not be proceeded with. It is difficult to pick out individual instances, but let us take one possible example. Someone who has, or has had, a criminal lifestyle may, as a result, have an illness or have suffered a head injury that makes it difficult for him to rebut the assumptions.

I believe that in those circumstances, a judge would be entitled to have the discretion at an early stage to say that justice simply cannot be done in this case. He might say that the way in which the system works, with the reversal of the burden of proof, makes it impossible for him, in the light of the evidence before him, to reach a conclusion when the defendant is at a serious disadvantage in rebutting the assumptions. This sensible measure would allow the judge to do just that.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

As I understand it, that was the Saunders defence. Ernest Saunders was not proceeded against, because he was alleged to have Alzheimer's disease, but once he was released from the court, he miraculously recovered. Does the hon. Gentleman not see that we do not want a device to enable people to escape in such circumstances? The defendant would not be unrepresented he would presumably have lawyers defending him by the score, who could articulate his case on his behalf.

Mr. Grieve rose—

Mr. Mark Field rose—

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. Hon. Members must not intervene on an intervention. I call Mr. Grieve.

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

The example of Mr. Saunders is an exceptionally bad one. I am sure that the hon. Member for Glasgow, Pollok would not wish to be unfair, because Mr. Saunders was subsequently completely exonerated through the appeal process.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

Indeed. As I am sure my hon. Friend was about to continue, the Saunders case is a particularly bad example, because he was found guilty and convicted. The defence of Alzheimer's disease came later, to get him out of prison after his conviction. There was no question of its being used during the trial. As I am sure my hon. Friend will point out, there are other reasons why the Saunders case is not the best example to use.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

May I return the hon. Gentleman to subsection (6) and the example that he gave? I suspect that that is slightly unfair of me, because he provided the example when he was on his feet, but would this not fall squarely within subsection (6)(b)? The Bill gives the court discretion to deal with the case to which my hon. Friend referred.

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

It is not unfair to require me to think on my feet. That is what I have been paid to do for a number of years. If I cannot do that, I had better not come before the Committee. On the point made by the hon. Gentleman, I accept that that could happen under subsection (6). As I understand the subsection, the judge must go through the whole exercise before reaching the conclusion, rather than being able to make it at the outset, which is when one should be able to make it. That may be the full difference that lies between us, so that the issue is not as big as it appears. Nevertheless, the wording that we propose is better than the existing wording.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

Can the hon. Gentleman imagine any circumstance in which he would want the judge to exercise discretion other than where the assumption was incorrect, or where there was a serious risk of injustice?

Mr. Grieve rose—

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

I am not trying to think on my feet for a moment.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. Hon. Members must not heckle, particularly Ministers.

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

I had those criteria in mind as the sort of criteria in relation to which the amendments have an advantage. I do not want to say that there are no others.

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

I think that my hon. Friend would agree that one difficulty in addressing some of the concerns that are being expressed from the Government Back Benches is that we do not want to offend you, Mr. McWilliam, and stray on to the third group of amendments. However, amendment No. 76 in the third group deals with the extra provisions that we, and organisations such as Liberty, feel should be added to subsection (6). That will help us to deal with the point when we come to it.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. Because of where the amendment is placed, it may help Members to have a clause stand part debate on it if they wish, because it covers the whole clause. I am, therefore, quite relaxed about it.

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

I am grateful for that, Mr. McWilliam. The lack of a rational connection between the facts proved leading to the trigger convictions and the facts produced for consideration under the assumptions could be something else that the judge considered to be ridiculous. That is another area in which there would be a judicial safeguard. That falls within the injustice category that I described earlier, although I accept that I took the example of a defendant who was at a grave disadvantage to rebut the assumptions, for some justified and bona fide reason.

In those circumstances, and on the basis of our amendments, it would be easier to do justice. Where is the downside? When considering such matters, one should always be minimalistic when interfering with established principles of justice. One should start to give greater powers, especially to prosecutors and directors, to reverse burdens of proof, and to bring in assumptions, only if there is some compelling necessity to do so.

In the comments made by the hon. Member for Edinburgh, North and Leith, there did not seem to be many downsides. I trust the judiciary to do justice in such circumstances. It is a fantasy, however, to feel that that will somehow open a door, through which a torrent of people will escape the process of confiscation. The amendments have merit on that basis alone.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

On a point of order, Mr. McWilliam. I should like your guidance on how we are to proceed with the amendment and the clause. In my opening remarks, I studiously stuck to amendment No. 24, as I did not wish to be ruled out of order, to the extent that I did not give as full a reply as I would have liked to an intervention by an Opposition Member on amendment No. 26. I should be happy for a safeguard to be inserted in either amendment No. 24 or amendment No. 26, but I have not yet argued the merits of amendment No. 26.

Would it be helpful if amendments Nos. 24 and 26 were debated together, and I moved amendment No. 26 formally, or shall we first conclude our discussion on amendment No. 24, and deal with amendment No. 26 subsequently?

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. The hon. Gentleman has come to the nub of the matter. It is clear that the original grouping was too tight. I now intend to group the two sets of amendments together, so that any of them may be debated.

With the group already under discussion it will therefore be convenient to discuss the following amendments:

No. 26, in page 6, line 13, leave out paragraph (a) and insert—

`(a) The Director does not lead sufficient evidence to establish the assumption on the balance of probabilities; or

(aa) The defendant leads evidence to entitle the court to refuse to make the assumption; or'.

No. 34, in page 6, line 13, leave out paragraph (a) and insert—

`(a) the defendant adduces evidence which is sufficient to raise an issue with respect to the matter and the prosecution fails to prove its case on the matter.'.

No. 76, in page 6, line 14, at end insert—

`(c) there is no rational connection between the facts proved in proceedings leading to the trigger convictions and the facts adduced for consideration of the assumptions.'.

Any hon. Member who wishes to press an amendment to the vote formally at a later stage should tell me, and he or she can do so when we reach that amendment's place in the Bill and on the amendment paper. Given the way that the debate has gone so far, it would be fairer to hon. Members and we would be better able to explore the cause if we proceeded in that way.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs) 6:15 pm, 20th November 2001

Thank you, Mr. McWilliam. That is helpful to the Committee, because the amendments should be considered in parallel. I shall move amendment No. 26 formally, to enable us to widen the discussion.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. Amendment No. 26 does not need to be moved, as we have grouped it with lead amendment No. 24. The hon. Gentleman may speak to it.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

And the others, but I shall pay particular attention to amendment No. 26.

Hon. Members have suggested that the discretion that amendment No. 24 would give to the judiciary is unnecessary because of the two safeguards included in subsection 6, which states that

``the court must not make a required assumption . . . if—

(a) the assumption is shown to be incorrect, or

(b) there would be a serious risk of injustice if the assumption were made.''

So far as they go, those provisions act as safeguards, but I do not think that they are sufficient. As my hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) has asked me, why is the adjective ``serious'' included in subsection (6)(b)? Does it mean that a court will not take into account a risk of injustice that is not serious but is present none the less? That is a high hurdle. Does a ``serious'' risk of injustice refer to the likelihood or the nature of the injustice?

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

The hon. Gentleman and the hon. Member for Mid-Dorset and North Poole have misread the passage. The word ``serious'' does not apply to injustice; it applies to the quantifiable level of risk.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

That is how I read subsection (6)(b), but I think that it would be helpful to put my point on the record. Even if that interpretation is correct, a ``serious risk of injustice'' nevertheless suggests that a lesser risk of injustice is tolerable, and I think that that is questionable. The risk of injustice may be quantified according to how severe the injustice is. I accept that ``serious'' must relate to the word ``risk'', but the nature of the injustice may offset that.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

With respect, ``serious'' does not mean that the risk must be of a great injustice; the word refers only to likelihood. It has nothing to do with the level of injustice.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

We shall have to differ on the subject. Although I believe the hon. Gentleman's interpretation, I have given my reasons why I doubt that subsection (6)(b) will be interpreted in that way. Even though I accept his definition of the passage, a ``serious risk of injustice'' precludes a court from concluding that there is a risk of injustice that may be less serious. That is an important point.

Subsection (6)(a) says that the assumption must not be made if

``the assumption is shown to be incorrect''.

That is an extremely difficult test. It may be impossible to conclude that the assumption is incorrect even if there are serious doubts about it. That is a test that requires 100 per cent. certainty. That is inappropriate, and that is why amendment No. 26 sets a different test that I hope Committee members will support.

The amendment has two parts. The first states:

``The Director does not lead sufficient evidence to establish the assumption on the balance of probabilities''.

The balance of probabilities is a test that Ministers have been happy to include so far in the Bill. In paragraph (a) of the amendment, we ask that the director should be able to produce sufficient evidence to establish the assumption on the balance of probabilities. That is not an especially high test, as legal tests go, and I should have thought it perfectly reasonable.

The second part of the amendment states:

``The defendant leads evidence to entitle the court to refuse to make the assumption''.

In other words, the person at the wrong end of the process will have the opportunity to produce evidence that leads the court to conclude that the assumption should not be made.

Those seem to me to be perfectly normal legal tests—and rather safer in law than the absolute wording of subsection (6)(a), which refers to when

``the assumption is shown to be incorrect'', which is a 100 per cent. test, and

``a serious risk of injustice'', which is close to it.

I hope that the Minister will not argue that the amendment would weaken the Bill. It is an attempt to get the balance right between not impeding the pursuit of justice and ensuring that proper safeguards are in place. Safeguards are an essential part of our criminal statute. I am merely trying to ensure that they are provided in the clause.

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

I shall try to help the hon. Gentleman, who is clearly worried that the thresholds for triggering the safeguards provided are too high. The safeguards in subsection (6)(a) will be decided on the balance of probabilities. That will be the test for whether the condition in subsection (6)(a) is met.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I confess that my reading of the Bill had not uncovered that, which is apparently a comment on my reading of the Bill rather than on the Bill itself. I am grateful for the Minister's clarification, which eases my mind about subsection (6)(a).

Amendments Nos. 24 and 26 are grouped. I am worried that the Government are, not only in the Bill but generally, as was evident in yesterday's consideration of the Anti-Terrorism, Crime and Security Bill, approaching the view that the judiciary cannot be trusted and needs to be put in its place, that Parliament's legislative powers are more important and that the historical balance between Parliament and the judiciary is wrong. That may be true, although I do not share that view. It is a perfectly legitimate view, and I believe that it is probably the view of the hon. Member for Glasgow, Pollok, who has been clear about his views on the judiciary.

I do not defend the judiciary; a lot is wrong with it, not least the background of many of those who comprise it. Nevertheless, democracy requires essential bulwarks and centres of power spread around, whether by devolution or alternative centres—between Parliament, the Executive and the judiciary. If we do not have that essential balance and one element of our constitution predominates, that is dangerous.

I cannot tell you, Mr. McWilliam, how the Bill might go wrong, but I know instinctively that we should not undermine one element of our constitution greatly and give excess power to another, because doing so can lead to unforeseen difficulties.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Does the hon. Gentleman not understand that one reason why Labour Members are impatient with the judiciary is that even under existing legislation, the judiciary time and again refuses to make confiscation orders when it is entitled to do so? The hon. Gentleman mentions the democratic principle. Does he not accept that the democratic will of the House of Commons should take precedence over the decisions of the judiciary?

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

The House of Commons should not take precedence over the judiciary. That would be wrong. Parliament can review the legal position and propose changes to the law if it believes that the law is impractical or ineffective. The hon. Gentleman referred to the unhappiness of Labour Members with the present judicial set up, and that hat is at the root of some of the problems that have led to the Bill and the worries of some hon. Members about the direction in which the judiciary is going.

The judicial system is not perfect. Some people should not be in certain positions; perhaps they do not have the correct background. However, the answer is not to curtail their power and change the democratic base of the country, but to give them proper training and guidance and to deal with them in a democratic way that preserves the essential constitutional balance. I am worried that judges will be sidelined because the Government may not like what they are doing. Amendments Nos. 24 and 26 are meant to flag up issues and make sure that they are taken on board so that essential safeguards exist.

I was grateful for the Minister's intervention. It was extremely helpful. However, I ask him to consider the wording of subsection (6)(b) and question why it contains the word ``serious''.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. I am anxious not to do the hon. Member for Lewes an injustice, but I wish the Committee to be clear about the grouping of the amendments. Amendment No. 25 deals with a separate point and stands on its own to be debated at a later stage.

Secondly, I have a duty to uphold the rights of the House. I remind members of the Committee that this is the High Court of Parliament.

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

Thank you, Mr. McWilliam, for your guidance. I had originally misunderstood you and thought that we were debating all the amendments, including amendment No. 25. I shall return to that amendment because Opposition Members have some important points to make about it, but for now I want to speak about amendment No. 76 because it goes some way towards dealing with one of the points that was made in an earlier intervention.

We must remind ourselves constantly of the pre-eminent principle of the separation of powers. The courts have a role in our constitution, as does Parliament. Neither role is predominant, which is why the hon. Member for Lewes was right to respond as he did to the intervention from the hon. Member for Glasgow, Cathcart (Mr. Harris). Parliament enacts the law, but it is for the judiciary to interpret it. If Parliament decides that the judiciary has completely misunderstood its intentions, it can—because no Parliament can bind its successor—return to the issue, as we are doing now.

As Ministers have said repeatedly, the Bill will take the previous regime further. It would be wrong for anyone in the House to say that Parliament is always superior to the judiciary. The judiciary has a separate role in our constitutional settlement and it is important that Members of Parliament should not pretend to be in the business of telling judges what to do. We must keep that constantly in mind.

In amendment No. 76, we have sought to add an extra safeguard in the form of paragraph (c). We are worried that there should always be a rational connection between the facts that are proved by the trigger convictions and the result.

I shall refer to Liberty's helpful briefing and I explain why we share its view. Our object is to ensure that, when the assumptions apply to any property in the first place, the courts should be satisfied that there is a sufficiently rational connection between the facts proven by way of the trigger conviction and the property in question. Why is that important? If there were no rational basis to conclude that the property in question was acquired from unlawful conduct, we should not be doing what the Minister has made it clear that the Government do not wish to do, but what the hon. Member for Glasgow, Pollok may wish to do.

As my hon. Friend the Member for Beaconsfield pointed out, there seems to be a difference between Ministers and one or two Government Back Benchers, who seem to be saying that if somebody is a criminal we should take all of their property regardless. The Minister made it clear, in response to my hon. Friend the Member for Beaconsfield, that that was not what the Government were saying. They say that there must be some link between the seized assets and the criminal conduct concerned. That can only be safeguarded if we add paragraph (c) to clause 11(6).

Government Back Benchers also questioned my hon. Friend, while he was thinking on his feet, about ways in which the avoidance of injustice would not be a sufficient safeguard by itself. I was thinking—sitting down, rather than on my feet, at that stage—that another example might be helpful to Government Members. If there were a case in which some of the property that the court might think about seizing was being used for the medical care of a handicapped child of the defendant, one would not be able to argue that taking away that property would cause injustice to the defendant, but one might be able to argue that it would not be appropriate to prevent the handicapped child, who had committed no offence, from being cared for. The court might want to consider applying criteria rather than blanket assumptions from which there is no escape.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Hall Green 6:30 pm, 20th November 2001

I am interested to hear about the handicapped child. However, if the child concerned were able-bodied and happened to have expensive dancing lessons, a string of ponies, a stable, skiing holidays and a yacht in the Caribbean, would the hon. Gentleman take the same view?

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

The hon. Gentleman has been helpful. When one considers amendments that move us away from blanket assumptions that the court must make and from which there is no escape to criteria, one must rely on those who make the decisions in individual court cases to use the criteria sensibly to rule out the protection of expensive dancing lessons and so on, and to use only criteria that introduce a discretion. That is what the hon. Member for Lewes and I are saying. We are worried about any question of judicial discretion being taken away completely and wholesale. It is not only the Opposition who have those concerns but Liberty, which is supported by many Government Members, including the hon. Member for Wrexham (Ian Lucas).

Photo of Ian Lucas Ian Lucas Labour, Wrexham

If I may return to the example of the handicapped child, it is perfectly clear that clause 16 refers to a serious risk of injustice, but that is not particularised to the defendant. The court would therefore have discretion to, for instance, prevent a house from being sold.

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

I am not sure that that is right. The hon. Gentleman and I may take a different view of the way in which judges might interpret the matter. As my hon. Friend the Member for Beaconsfield rightly said, we can differ honestly as professionals on how we anticipate that the courts may interpret it. As a skilled and experienced lawyer, the hon. Gentleman will accept that there is a big difference between mandatory assumptions, which the Government currently propose, and giving the courts discretionary criteria, which give clear guidance, and set out, under Pepper v. Hart, how the Government intend them to be used.

We do not want the Mr. Bigs or their associates to escape. There should be clear criteria but at least a measure of judicial discretion to enable judges to use their common sense. That is the difference between the hon. Gentleman and me. As the exceptions in clause 11(6) are currently drafted, I suspect that the courts would consider the injustice to the defendant. Everything else in the clause relates to the defendant. It would be wiser to maintain that element of judicial discretion. I am strengthened in that view by the fact that, with all-party support, an organisation such as Liberty, which the Minister knows considers these matters carefully, shares our concern.

The hon. Member for Wirral, West asked me whether there was any authority in English law for our concerns. There quite clearly is such authority on the point covered by amendment No. 34, and it is R v. Lambert, which is another case in the House of Lords Judicial Committee. In a moment, I shall quote from Lord Steyn, but I should first like to ensure that the Committee is clear that we are talking about amendment No. 34. Instead of the current wording we suggest inserting:

``the defendant adduces evidence which is sufficient to raise an issue with respect to the matter and the prosecution fails to prove its case on the matter.''

That would impose an explanatory or evidential burden of proof on the defendant rather than a legal burden of proof. Before we are accused of trying to make things easier for the defendant, I stress that we still put the burden on the defendant. It may be pretty onerous but that is the principle that the Government are pursuing and we do not challenge it. However, if the defendant comes up with something convincing that the prosecution cannot meet, these provisions should not bite. That is surely a clear principle of English law.The ultimate burden of proof goes back to the prosecutor only after an explanation is forthcoming. When no explanation is forthcoming or the quality of the explanation given by the defendant is such as to defy belief, the assumptions or criteria will apply in favour of the prosecution.

In Volume 3 of the Weekly Law Reports, on page 206, Lord Steyn says:

``The principle of proportionality requires the House to consider whether there was a pressing necessity to impose a legal rather than evidential burden on the accused. The effect of section 28 is that in a prosecution for possession of controlled drugs with intent to supply, although the prosecution must establish that prohibited drugs were in the possession of the defendant, and that he or she knew that the package contained something, the accused must prove on a balance of probabilities that he did not know that the package contained controlled drugs. If the jury is in doubt on this issue, they must convict him. This may occur when an accused adduces sufficient evidence to raise a doubt about his guilt but the jury is not convinced on a balance or probabilities that his account is true. Indeed it obliges the court to convict if the version of the accused is as likely to be true as not. This is a far-reaching consequence: a guilty verdict may be returned in respect of an offence punishable by life imprisonment even though the jury may consider that it is reasonably possible that the accused had been duped. It would be unprincipled to brush aside such possibilities as unlikely to happen in practice. Moreover, as Justice has pointed out in its valuable intervention, there may be real difficulties in determining the real facts upon which the sentencer must act in such cases. In any event, the burden of showing that only a reverse legal burden can overcome the difficulties of the prosecution in drugs cases is a heavy one.''

I shall quote at no more length from the judgment, although Liberty sent us a longer passage.

I must be careful not to offend the sub judice rules. Liberty referred us to a further case that has gone on appeal to the House of Lords, which is R v. Benjafield; R v. Rezvi. Although the House of Lords has heard the case, a verdict has not been delivered. The Minister may tell me otherwise but I have not seen a verdict. Section 4 of the Drug Trafficking Act 1994, the provisions of which the Government wish to use the Bill to extend, and section 72 of the Criminal Justice Act 1988 are the subject of the further appeal. Therefore, we cannot discuss that matter, although the House of Lords may give a judgment before the end of the Committee stage, which would provide further guidance. However, the Government would be wise to keep an open mind on the matter while a case concerning evidential burden on the defence is pending before the House of Lords, which the superior court of the land.

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

The hon. Gentleman started his contribution by suggesting that he was keeping to the spirit of the Bill because the amendment would mean that the onus would still be on the defendant to establish proof. His explanation does not stand up to that. He suggests that as soon as the defendant comes up with new evidence, the onus is on the prosecuting authorities.

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

Liberty makes it clear that the ultimate burden of proof will remain with the defendant because he must start the process by producing convincing facts. Therefore, there will be an evidential burden on the defence. However, if the defendant comes up with compelling facts to which the prosecution must respond, that is a sensible safeguard in English law. There should not be a situation in which the defendant produces convincing facts and, although the prosecution says nothing, the defendant still loses. That is an essential safeguard.

I have said all that I need to say about the widened group of amendments. I will be interested to hear the Minister's comments, because I noticed that he nodded when I referred to the case that is sub judice.

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

I shall try to deal with both sets of amendments and to be objective in my response to the hon. Member for Lewes, although the hon. Member for Surrey Heath made similar comments. I shall try not to characterise the amendments as simply weakening the Bill, although since that is what they would do, I have a duty to point it out.

Amendments Nos. 24 and 51 to 59 would have a twofold effect. Amendment No. 24 would make assumptions discretionary. The remaining amendments in the original group would change the wording of the Bill to include the word ``criterion''. The amendments would give the court calculating a lifestyle criminal's benefit the discretion to have regard to certain criteria. The Government believe firmly that mandatory assumptions are a key element in the process of recovering the proceeds of crime from those offenders who have a criminal lifestyle.

We are opposed to the amendments for several reasons. I refer first to amendment No. 24, in isolation from the others. History teaches us that discretionary assumptions are ineffective. The Conservative Government changed discretionary assumptions to mandatory assumptions in certain instances. Opposition Members asked whether the Scottish system was more acceptable because it was discretionary and said that the English and Welsh system was less effective because it was mandatory. There are about 1,200 confiscations a year in the English and Welsh jurisdictions. About 1,000 concern drugs and are mandatory. Only 200 are for other categories of crime, which are discretionary. That points to the fact that mandatory arrangements are being used more widely. They are certainly more effective at the moment in confiscating the proceeds of crime.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs) 6:45 pm, 20th November 2001

That is an interesting point. The statistics to which the Minister referred are worrying. I should be interested to know whether the Government attempted to deal with that position before the Bill was introduced. Has guidance been issued, for example, to show the importance of existing assumptions? In that case, why have there not been more instances of assumptions being applied?

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

The hon. Gentleman, who said that we should be mindful that we do not overrule the courts and rescind the paramountcy of Parliament, now suggests that we can solve such problems by giving guidance to the courts. We have all the Hansard reports on all the Acts concerning the proceeds of crime going back to 1986. When I read those reports, the really worrying aspect was that they all said the same thing, and they go back a generation. We have failed repeatedly to put an effective system into place to confiscate the proceeds of crime.

Various Under-Secretaries at the Home Department have told us how a particular refinement will make the difference and how that will suddenly be seen on the streets of our constituencies. We have been told how they will tackle crime and bring us back to the point where crime does not pay, yet Parliament has failed to do so. After all my years in the Whips office, I still have enough idealism to believe that we were elected to this place to make a difference. I want us to put us above point scoring. I accept that debating small points is what discussing a Bill in Committee is all about, but we must keep our eye on the big picture. Unless we make a step change in the way in which such legislation is drafted, we shall not make a difference. When we are in our dotage, another Under-Secretary of State at the Home Office will be saying on the radio that he now has the solution to the problem.

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

I am certainly trying to keep my eye on the big picture. Before giving way to the hon. Member for Lewes, the Minister came up with statistics that cannot be allowed to pass without challenge. Without knowing how many different cases were brought forward and how many applications were made under the current provisions, we cannot—on the basis of 1,200 confiscations, of which 1,000 were of one type of case and 200 of another type—draw conclusions about the merits or otherwise of discretionary or mandatory systems. One often hears people say in this place that there are lies, damned lies and statistics, but the Minister knows perfectly well that one cannot extrapolate the conclusions that he has drawn on the basis of raw statistics. It is a false premise.

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

The hon. Gentleman claims to have read some of the old Hansard reports and a speech by the now Lord Corbett. From my speed reading, I am not sure about that or about whether Lord Corbett made the points that the hon. Gentleman claims. None the less, the hon. Gentleman will know that previous Conservative Governments changed the legislation from discretionary to mandatory because the powers were not being used. I remind the Committee that the assumptions in the Drug Trafficking Offences Act 1986 were discretionary. The Government of the day found it necessary to replace them with mandatory assumptions because discretionary assumptions were not being used by the courts.

Amendment No. 24 would make assumptions discretionary. I will not say that it would weaken the Bill, since that would offend the hon. Member for Lewes, but it would return us to a situation that was deemed to be wholly unsatisfactory. The discretionary regime would allow the courts to disregard assumptions for any reason, including the general aversion to the process of particular judges, or for no reason at all. That is not acceptable. With many criminal lifestyle offenders, we are dealing with the top bracket of serious and organised crime. Moreover, there must be some consistency in the handling of criminal lifestyle cases across the jurisdiction.

Part 2 is in many respects a consolidation measure. In England and Wales, we have a drug trafficking regime with mandatory assumptions and a non-drug regime with discretionary assumptions. The hon. Member for Surrey Heath said that we are making mandatory assumptions for offences other than just drug trafficking. That is right. The hon. Member for Beaconsfield said that if the legislation is not used far more widely, it will be seen as a failure. I have made it clear that the measure of success will be when we are effectively confiscating the proceeds of crime. We should be examining effectiveness rather than width.

Hon Members repeatedly propose amendments that would have beneficial effects in some circumstances but would allow people great loopholes through which they would inevitably and rapidly climb. That would render the legislation much less effective. Our task is to draw together the two strands into a single regime that is either mandatory or discretionary. Given the historic lessons, we have decided in favour of a scheme that is mandatory throughout.

We have introduced a further safeguard to allow for the fact that assumptions are now mandatory in non-drug cases. The trigger offences have been raised from two qualifying offences in the current proceedings to four, or one in the current proceedings plus two others in separate trials in the past six years instead of just one other. There is also the general safeguard that the court must not make an assumption if there is a serious risk of injustice. I intervened on the hon. Member for Lewes to try to reassure him, because he thought that that hurdle was far too high. The assumption in clause 11(6)(a) can be shown by the defendant to be incorrect on the balance of probabilities. That measure will apply to the defendants' need to show that the assumption is incorrect.

The hon. Member for Surrey Heath quoted extensively from case law that goes back to 1983. I am beginning to get the measure of the hon. Gentleman; he goes back to 1983 to quote Lord Woolf's comments on an American case—

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

On a point of order, Mr. McWilliam. The Minister may have misheard me or I may have used the wrong date. Whichever it was, the case from which I quoted Lord Woolf was in 1993, not 1983.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. That is not a point of order.

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

I apologise. I think that the hon. Gentleman said 1983, but if he meant 1993, all well and good. None the less, it was some time ago, and Lord Woolf was referring to a case in American jurisdiction. The hon. Gentleman also quoted a case in Hong Kong jurisdiction, and told us that the principles were exactly the same because it was under the UK criminal justice system. In discussing the second set of amendments, he then quoted the Lambert case. He said that the principles were exactly the same, but he did not tell us that the Lambert case had nothing to do with confiscation. If the hon. Gentleman's research into case law was so extensive, why on earth did he not quote recent case law on assumptions in cases of confiscation? There is plenty of it. Why did he have to cite Hong Kong, America, and Lord Woolf from 1993? Why did he not quote Lord Woolf on Benjafield?

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

The Minister needs to be very careful. I believe that the Benjafield case, which was dealt with by Lord Woolf as Master of the Rolls, is on further appeal in the House of Lords and has yet to be decided. Lord Woolf is no longer a law lord: he is now presiding judge in the Court of Appeal. The Minister will doubtless clarify the position in a moment.

The two cases that I quoted, both of which, as I made clear, involved legal principles that are applicable today, were supplied to us by Liberty, a reputable organisation that is supported by all parties. Both cases referred to the law relating to evidential burdens, which is what we are talking about in this context.

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

Those evidential burdens have nothing to do with confiscation. The hon. Gentleman could have cited recent case law dealing with confiscation, but he chose not to do so.

On proportionality and the question of whether the hurdle was too high, which was raised by the hon. Member for Lewes, the Court of Appeal said of the Benjafield case that serious risk of injustice enabled the court to take full account of the requirement for proportionality under the European convention on human rights. That related to assumptions made under previous legislation, so the Benjafield case dealt with the precise issue that we are discussing. According to the ruling, the safeguard in this Bill, which is exactly the same as that in existing legislation, meets the ECHR requirement for proportionality.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I am grateful to the Minister, whose reply was very helpful. I wanted to question the use of the word ``serious'' but I think that he has dealt with that issue.

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

By replacing the word ``assumption'' with the word ``criterion'', amendments Nos. 51 to 59 would, in effect, abolish the assumptions procedure altogether. Instead, the court would have the discretion to regard the holding, receipt or expenditure of property by the defendant as a criterion by which to calculate benefit.

The hon. Gentleman knows that the assumptions impose, and are intended to impose, a reverse burden of proof so far as specific property that is shown to have been in the defendant's possession is concerned. As I have said, they start from the basis that a lifestyle criminal's property constitutes the proceeds of crime unless the offender proves the contrary on the balance of probabilities. Let us not run away from that; it is what we are suggesting, and I do not want anyone to be under any illusions. When someone has been convicted in terms that identify him as a lifestyle criminal, the burden of proof reverses and it is up to the person to show, on the balance of probabilities, that his assets are not the proceeds of crime. Opposition Members keep on, for whatever reason, trying to weaken that, and put the burden back in some cases—we shall discuss that when we come to the second set of amendments—on to the prosecutor.

Photo of Boris Johnson Boris Johnson Conservative, Henley 7:00 pm, 20th November 2001

Surely the point is not whether he is a lifestyle criminal, but whether he has a criminal lifestyle. I am not aware of the phrase ``lifestyle criminal''. The Minister seems to be changing the formulation to suit his case. To be accused of being a lifestyle criminal is very different from being accused of having a criminal lifestyle.

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

Good gracious me, we are getting tangled up with the wordsmith of The Spectator, a very dangerous road down which to travel. I assure the hon. Gentleman that I am not trying to change meaning. When someone is shown, on the assumptions and criteria in the Bill, to be a lifestyle criminal and to have a criminal lifestyle, then, yes, we reverse the burden and it is for them to show that their assets, gains and moneys spent over a period of time were not the proceeds of crime.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I would like to be absolutely clear. Is the Minister taking the two terms—lifestyle criminal and having a criminal lifestyle—to be coincidental, synonymous and mutually substitutable?

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

I shall try to think on my feet, as the hon. Member for Beaconsfield showed such ability in doing. I do not necessarily see a huge difference between the two terms, and I am at the moment using them like that, turning the words round the other way. If the hon. Member for Henley (Mr. Johnson) can show me a substantive difference, I will happily refrain from doing so and instead use one order of the words rather than the other on each and every occasion.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I thought that we had established the other day that there was a clear semantic difference between being a criminal and having a criminal lifestyle. The Minister says that people who are lifestyle criminals should have their assets expropriated on the balance of probabilities. That is different from saying that that should happen to someone who has a criminal lifestyle.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. We are getting into semantics, but we must take matters in context their and in the context of the Bill, that does not really make any difference.

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

There was a lot of confusion the other day about whether the phrase referred to style of dress. We accepted that a better phraseology could be found, and Committee members were challenged with coming up with one, and we will try to do that. That is what I thought that we had established the other day.

In practical terms, the assumptions are an essential means of identifying the value of a criminal's benefits from crime. Only the criminal knows the true origin of his or her property, so it is vital that the criminal should have to account for the legitimacy of those assets. Given the difficulty in most cases of establishing a paper-trail link from the property now held by the criminal to the underlying criminality, it is unrealistic to expect the authorities to prove the criminal origin of the property owned by the defendant.

The hon. Member for Surrey Heath said that either I or my hon. Friend the Minister of State—I do not know which of us he was referring to—had said that there needed to be a linkage between the property and the crime concerned. I cannot recall ever saying that about criminal lifestyle cases. That is absolutely not so—it is exactly what we are trying to avoid, because it is almost impossible to prove.

I contend that amendments Nos. 24 and 51 to 59 would render the legislation ineffective, leaving the proceeds of crime in the hands of lifestyle criminals—or people with criminal lifestyles, if the hon. Member for Henley prefers that turn of phrase. The Government are opposed to those amendments, and I hope that they will not be pressed to a vote.

The first limb of amendment No. 26 would require the director to lead evidence as to the validity of a particular assumption before the assumption is made. The second limb would permit the court to refuse to make the assumptions when the defendant leads evidence that entitles it to do so.

Amendment No. 34 is more straightforward. It would replace the persuasive burden applicable to the confiscation proceedings with an evidential burden.

Amendment No. 76 is a variation on amendment No. 24. It would require the court not to make the assumptions if ``the facts adduced''—to quote from the amendment—for the consideration of the assumptions were not rationally connected with the facts leading to the triggering conviction.

As currently drafted, the Bill states that the defendant must show that the assumption is incorrect if it is not to be made, or there must be a serious risk of injustice if the assumption is made. If the defendant fails to prove that the assumption is incorrect, the court will make the assumption. The defendant will need to show that the assumption is wrong that a particular property was obtained as a result of criminal conduct. That is what the Government intend the legislation to do in cases that involve lifestyle criminals.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

What will happen in circumstances in which assets are held in joint names—for example, a home that is owned jointly by a criminal and his or her spouse, or a joint bank account? Will the Minister clarify that now, or on the next occasion when the Committee meets?

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

I hope that my hon. Friend will forgive me, but if I go down that road, a lengthy explanation will need to be given. I will address his point at a later stage of the scrutiny of the Bill. The Bill clearly show how the separation of associated property is to be achieved to ensure that innocent people's property that is tied up with the proceeds of crime is not confiscated, while the proceeds of crime and tainted gifts are confiscated, and while huge loopholes that criminals can use are not provided.

I return to amendments Nos. 26, 34 and 76. Their effects would not be quite the same. The reason for having an assumptions procedure is that criminals are adept at concealing paper trails between their offending and their property. In many cases, that makes it impossible for the director or the prosecutor to lead any evidence as to the criminal origins of the defendant's property. That is why an assumptions procedure is contained in the Bill. If the first limb of amendment No. 26 were accepted, it would mean that, for example, the director would not only have to prove that a particular item of expenditure was made by the defendant but to produce evidence that that expenditure was the proceeds of crime, and only when that evidence had been led would the assumption apply.

By that time, the assumption would be meaningless, as the whole point of the assumption is to make it unnecessary for the director to prove a link between the expenditure and a particular crime. On amendment No. 34, it is not entirely clear what sort of procedure is envisaged. Amendment No. 26 would delete subsection (6)(a). We can assume that the intention is that the defendant would not be required to disprove an assumption on the balance of probabilities. Rather, it would be possible for the court to refuse to make an assumption if evidence was brought that fell short of rebutting the assumption. If that is the case, the amendment would severely undermine the assumptions procedure. Once again, the proceeds would remain in the hands of the criminals.

Amendment No. 34 would put an evidential rather than persuasive burden of proof on the defendant in the assumptions procedure. The Government think that the persuasive burden is fully justified in that situation. If an evidential burden of proof were applied in confiscation proceedings, and the defendant led some evidence that contradicted the assumption, the burden would fall back on the prosecutor to prove on the balance of probabilities the matter to which the assumption related. For example, if the director or prosecutor pointed out that an unexplained transaction for £10,000 was in the defendant's bank account and the defendant produced evidence that he was a gambler, the onus would be on the director or the prosecutor to prove the origins of the money.

As I have previously explained, we are dealing with criminals who conceal any paper trail between their offending and their property. In many cases, there may have been no paper trail in the first place. It is simply not feasible to place that burden on the director or prosecutor.

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

Does the Minister think that it is wrong in principle that if someone can advance a prima facie rebuttal of the assumption, it should not be for the director or prosecutor to show on the balance of probabilities that the rebuttal is not valid and to establish his case?

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

No, I do not accept that. We are dealing with people who have been convicted of a criminal offence and who have a pattern of offences that display a criminal lifestyle, and we are giving them the opportunity, on the balance of probabilities, to prove that their property or their expenditure was not the proceeds of crime. The hon. Gentleman is simply expecting us to allow them merely to present evidence that the property might not be the proceeds of crime, and to reverse the whole burden on to the prosecutor to prove that the property is the proceeds of crime.

I suggest to the hon. Gentleman that that will not be possible in the overwhelming majority of cases. This is the hon. Gentleman who said that he would rejoice if he saw the legislation bringing in large sums of money. If it is his intention to make sure that those large sums do not come in, he should urge me to accept that we reverse the whole burden of proof and lose the possibility of confiscating the proceeds of crime, even in cases in which evidence presented is well below the balance of probabilities that he said was a low threshold.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I do not seek to undermine the Bill in the way in which the Minister paints. However, I introduced paragraph (aa) into amendment No. 26, which states:

``The defendant leads evidence to entitle the court to refuse to make the assumption; or''.

That is not the same as saying, ``I am a gambler, so it is up to you to do something about it.'' If the defendant can show, to use my example, that a payment of £10,000 into his bank account coincided exactly with a national lottery win, would that not be evidence, on the balance of probabilities, that that £10,000 was not the proceeds of crime and therefore not confiscatable? Surely that is already covered in the Bill. On the balance of probabilities, the defendant would show that the £10,000 was not the proceeds of crime, and the court would be under an instruction not to confiscate that money. The amendment could lead to a lesser burden of proof. The person would simply have to present evidence that it may not be the proceeds of crime, which is different from what he was saying.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs) 7:15 pm, 20th November 2001

I was grateful for the Minister's earlier clarification in relation to subsection (6)(a), and I am happy to accept that the balance of probabilities test is in place. That makes my mind much calmer than it was when the amendment was tabled. However, I dispute that the words in the second part of amendment No. 26 have the construction that he seeks to apply to them.

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

I am advised that they have that construction, and that if the amendment were accepted—I am not trying to play party politics—a much lower level of evidence would be required. Simply presenting evidence would lead to a double reversal on the prosecution who would have to prove the origins of the property in question. Before the hon. Gentleman decides whether to press the amendment to a vote, I ask him to consider it seriously that in the overwhelming majority of cases that would not be provable, and the proceeds of crime would not be confiscated. That is the advice that I have received about how the amendment would impact on the Bill. The application of an evidential burden would make the assumptions procedure ineffective.

In relation to amendment No. 76, the facts adduced for the consideration of assumptions are the details of the property held, received or spent by the defendant, as set out by the director in the prosecutor's statement. The process begins with a description of the defendant's property, and the defendant must then account for its lawful origin. As I explained, the procedure is designed to absolve the director and the prosecutor of the need to lead evidence as to the criminal origin of the property, and nor should any such requirement be imposed on them.

The amendment is flawed in another respect—it implies that there must be some connection between the offences on the charge sheet and the conduct the proceeds of which the assumptions are designed to expose. If, for example, a defendant had been convicted of fraud, the assumptions could not be made if no link was proved between the defendant's property and fraud. That approach is misguided. The purpose of the assumptions is to lay bare the proceeds of the defendant's entire past criminal career, regardless of the conduct involved.

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

I apologise for not being present for the start of the Minister's speech. My various jobs led me out of the Room, then back in. That will cease at the end of this week.

The Minister's argument fills me with gloom. He has so neatly encapsulated the potential central flaw in this legislation: the complete lack of connection between the wonderful nebulous concept of ``general criminal conduct'' and the offences. He glories in it. It is a confiscatory mechanism designed to be targeted against people when the state has decided that it does not like the cut of their jib. Is that not why the safeguards that he wishes to dismiss out of hand are needed?

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

If a repeat offender is deemed to have a criminal lifestyle under the assumptions procedure, amendment No. 76 invites us to prove that his property and assets are the proceeds of a specific crime. I do not know how the hon. Gentleman squares that with his desire to rejoice in the confiscation of the proceeds of crime. In current case law under European procedures, defences have been based on the notion that assets are not the proceeds of a drug-related crime.

When the assumptions apply, the burden of proof is reversed and I do not glory or revel in that. I want legislation that will confiscate the proceeds of crime from those with criminal lifestyles and will render their activities non-profitable, in many cases bringing them to an end. That is not revelling.

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

The Minister refers to the proceeds of crime. I am not arguing against the Bill, but to get him off the high ground. The process will not confiscate the proceeds of crime: it will confiscate assets not linked with any particular offence that the defendant cannot prove to be legitimately obtained, which is what the procedure is designed to do. It is important to call a spade a spade. Only when we do so can we logically build the safeguards that justice requires.

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

The safeguards in subsection (6) are appropriate and will prevent the confiscation of property that does not proceed from crime. They are designed to do so in a limited way, which does not allow people to hide the proceeds of crime. The hon. Gentleman has huge misgivings about that, which he has made plain. Without the Bill's assumptions, we will not have an effective confiscation procedure in cases of lifestyle criminals. The safeguards in subsection (6)(a) are adequate because they instruct the court not to make assumptions if a serious injustice will occur, and not to confiscate property if assumptions are shown to be incorrect. We will have to differ on that.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

Is this not another example of the Conservatives demonstrating that they are soft on drugs and drug suppliers? Given the assumptions about ``the relevant day'' in subsection (2)(a), and the ``period of six years'' in subsection (8), will the Minister clarify that he wants to attack the assets acquired throughout the entire criminal career of a particular individual? Can he guarantee that the assets acquisition process can be examined, or has to be defended, back beyond six years?

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. The hon. Gentleman is referring to something that we have not reached yet. We are discussing an earlier amendment.

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

I think that I could satisfy my hon. Friend on that point. If you allowed me to, Mr. McWilliam, I might be able to do exactly that under clause stand part or another amendment.

I come to the conclusion, much though the hon. Member for Lewes may regret it, that all the amendments would seriously weaken the Bill's provisions and prevent the confiscation of the proceeds of crime. They would create unreasonable hurdles for the director and, in some cases, an unreasonably low level of evidence to reverse the burden of proof and put it back on the prosecutor. I ask members of the Committee not to support the amendments unless they want exactly that to occur.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Before the debate is adjourned, it may be convenient for the Committee if, as a consequence of regrouping the amendments, I rule that there will be a Division—or not, as the case may be—first on amendment No. 24. There is a case for a separate vote on amendments Nos. 26, 34 and 76. If hon. Members choose to have such a vote, it will take place after the debate on amendment No. 25.

Debate adjourned.—[Mrs. McGuire.]

Adjourned accordingly at twenty-six minutes past Seven o'clock till Thursday 22 November at five minutes to Nine o'clock.