Clause 17 - Statement of information

Proceeds of Crime Bill – in a Public Bill Committee at 3:30 pm on 22 November 2001.

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Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 3:30, 22 November 2001

I beg to move amendment No. 78, in page 9, line 21, after `court', insert `and the defendant'.

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

With this we may discuss the following amendments: No. 79, in page 9, line 25, after `it', insert `and the defendant'.

No. 80, in page 10, line 4, at end insert—

`(c) he must give a copy of the further statement to the defendant, within any period that the court orders.'.

No. 81, in page 10, line 38, after `it', insert `and the prosecutor or Director'.

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

It is a pleasure to return to the Committee. I am sorry that I was not present to hear the hon. Member for Glasgow, Pollok explain the cause of his ill health, but it has been communicated to me by my hon. Friend the Member for Surrey Heath.

However, I rejoice in the fact that consideration is to be given to an amendment in which I had an interest but could not move myself, which addressed gobbledegook in draft Bills.

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

An invitation was given to other people—including the hon. Gentleman—to devote their time to seeing whether they could make improvements.

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

I assure the Minister that I will try to give that some attention. If I come up with a better draft, I will allow him—and his civil servants—to use it.

All the amendments concern whether the information should be given to the court alone, or to the defendant as well. I anticipate that the Minister will tell me that if the court is requiring the information, and there is a duty on the director or prosecutor to supply it, that information will be communicated by the court to the defendant. The Minister is nodding his head in agreement, but my experience suggests to me that that does not always happen. It might happen eventually, but it does not always happen as quickly as it should. That is why I tabled the amendments.

That might be interpreted as a criticism of the court system, and I can recall several occasions, during the course of my professional practice, when documents that the court was supposed to send out to individuals did not get sent. Given the adversarial nature of the proceedings, and the fact that the prosecutor or director is seeking the confiscation of another person's assets, I cannot think of a good reason why there should not be a statutory obligation on the prosecutor or director to supply copies, not only to the court but to the defendant.

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

As my hon. Friend was saying that, I looked outside at the weather and recalled an infamous occasion when the situation that he has described happened. I will never forget it. I had to travel, on a cold, wet Thursday in November, from my home in the south-west midlands to the furthest court in what was then the Midland and Oxford circuit, in Skegness. When I arrived, I discovered that the court had failed to notify the defendant that the proceedings were taking place. Everyone's time was wasted, and the most appalling thing of all is that when we returned to Skegness, on an equally wet, cold, depressing Thursday in February, the court issued an absolute discharge to my client. We also received an apology, and we were told that the magistrates in the town were always telling the police not to prosecute for the offence, but they never took any notice. I hope that that anecdote further illustrates my hon. Friend's point.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 3:45, 22 November 2001

It exemplifies the sort of problem that legal practitioners regularly encounter. I have been completely fair about that. The Minister will see that the last amendment in the group—No. 81, which relates to clause 19—would create a burden in the opposite direction, so that the defendant must supply information not only to the court but to ``the prosecutor or Director''. I appreciate that I am making a relatively small point, but as we are trying to get the legislation into good order, the amendment might profitably be included. It has no downside and would cause no problems that I can foresee. It would be likely to speed up the proceedings by a fraction.

Under amendment No. 81, if there were a problem with non-communication, the court could not be blamed, because the prosecutor or director would have had the duty to supply the information directly to the defendant. That is a minor matter, but in adversarial proceedings, such information should be supplied. In many civil proceedings, there is a duty to supply documentation to the other party directly, and not just through the court system. I cannot think of a reason why that obligation should not exist in this case.

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

Amendments Nos. 78, 79 and 80 would require the director and the prosecutor to give a copy of their statement to the defendant in all cases. As the hon. Gentleman rightly says, amendment No. 81 would require the defendant to provide any information that is ordered by the court to the prosecutor and the director.

The statement procedure requires the defendant to respond to the statement provided by the prosecutor and the director. That will identify any matters of dispute on which evidence may be heard. That is why clause 18(1) makes it clear that the defendant can be required to respond to the director's or the prosecutor's statement only when he or she has been served with a copy of it.

The service of the prosecutor's statement is dealt with in the Crown court rules, and we intend that those rules should continue to supply such provisions when the Bill is enacted. We shall ensure that, under the rules, any information that the court orders the defendant to produce is provided to the prosecutor or the director, so there is no need to provide for that in clause 19.

The hon. Member for Beaconsfield says that often the information is not provided. I am hugely pleased that he has picked up on the general sense of what I was urging him to do. We should try to make a real difference, but I worry that by saying that, I provoke him into thinking that we could use the Bill to sort out all the Crown court's problems. I do not know his opinion, but it would be strange if we were to make separate, special provisions for information in a case in which the Crown court is supposed to make such provisions.

We shall apply ourselves to ensure that the entire Crown court system works. The defendant will not be able to respond if he has not received the director's statement, so if he does not receive it, the whole object of the exercise will be defeated.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

I am heartened by what the Minister has said. I see sense in the substance of the amendments. It is important when dealing with cause to make as much as possible explicit in the Bill. I see no reason why the amendments could not be included. The Minister has said that that is the intention in the rules that are to be laid down subsequently, but it seems sensible to make the position clear now.

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

I shall try to avoid a fissure on the Labour Benches if possible. Unity in the Labour ranks may be in danger.

I say to the hon. Gentleman that we do not believe that the amendment is the right approach—

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

He is not your hon. Friend any more, then.

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

I was talking to the hon. Member for Beaconsfield—and to my hon. Friend.

We do not believe that the amendment is the right approach, but we shall make provision in the Crown court rules to ensure that that happens. Given that assurance, I ask that the amendment be withdrawn.

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

I do not suggest for a moment that there is a fissure. Clearly there is not, however much we put our tongue in our cheek. However, given that a Labour Member with the same sort of experience as a practising solicitor as my hon. Friend and I have says that it would be better to specify the matter in the Bill, will the Minister at least consider that relatively small point—which is, however, sufficiently important for the hon. Member for Wrexham (Ian Lucas), from his professional experience, to agree with us—and, perhaps, think about introducing a Government amendment later?

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

I am grateful for the Minister's comments. I accept that there are Crown court rules and that they should work, but I do not understand why that should prevent something that is glaringly obvious from being stated in a measure when plainly the interests of justice require that the defendant should be kept informed. As I said, the problem is not that the defendant will never see the documents, but a delay—and the fact that someone may subsequently say that that has not happened. The prosecutor may then say that he is under no obligation and can pass the buck to the court administration system, which is often overburdened anyway with many responsibilities.

I invite the Minister to consider this small amendment carefully. It may be the one Grieve amendment to the Bill's 444 clauses, unless I can persuade the Minister to accept some others as we proceed. It is innocuous and spells out what should happen.

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

I accept the hon. Gentleman's point. It is in the interests of not only justice but confiscation that the information should be passed. If it is not passed and we cannot satisfy ourselves that it will be passed through the normal court system, there is some sense in considering the amendment. I give him that assurance but ask him to withdraw the amendment.

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

My hon. Friend said that the amendment might be the only Grieve amendment. I hope that there will be many more. The former Member for Milton Keynes, North-East and I regarded as the Butler-Hawkins amendment to the Criminal Justice and Public Order Act 1994 a one-word amendment that was extremely important because it allowed police officers the opportunity to search under Rastafarians' hats for drugs. That is one of the few occasions that I can remember of a one-word amendment being accepted by the Government. The amendment ``after `coat', insert `,hat''' made a substantial difference. Even a small amendment can be significant.

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

I accept that. Putting in words such as ``not'' throughout the Bill would transform it radically. However, the Minister will not allow us to do that.

I am grateful to the Minister and will not take up any more of the Committee's time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 28, in page 9, line 36, leave out `serious'.

We return to the word ``serious'', which I raised earlier. This time, the provision contains a qualifying phrase, which I hope will make the difference and allow the Minister to consider the issue afresh.

The amendment relates to the statement of information that must be provided if the court is proceeding under clause 6. Clause 17(4) states:

``A statement under subsection (3) . . . must, if the prosecutor or Director believes there would be a serious risk of injustice if a required assumption were made, include information he believes is relevant in connection with deciding whether it should not be made.''

Therefore the decision goes beyond the director's decision. The decision whether to include information is not the deciding factor. Such flexibility should be left to the court.

If the court is left with that flexibility under clause 17, it ought to be made aware of information that the director may hold even if there is a risk of injustice. If the risk is minimal, surely the court can proceed in the way in which the director wishes. The danger with the wording is that only when there is a ``serious'' risk of injustice will the court be informed and take it into account. If, however, there is simply a risk of injustice, the court need not be informed, and that is a more serious issue. I am not asking for a change to be made that would alter the final decision about a case, but one that would allow further information to be forthcoming when a decision is taken, and that can only be a good action to take.

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

I agree with the hon. Gentleman. Although the amendment is not one of those to which my hon. Friend the Member for Beaconsfield, myself and other colleagues have subscribed, it was a proposal that my hon. Friend and I were thinking about. We were glad that the hon. Gentleman tabled it because we knew that we would have an opportunity to debate it. He has put his case in a sensible and moderate way. As he said, this occasion is slightly different from the other times when we have debated the word ``serious'' and it has given the Minister the opportunity to think afresh about such matters.

I hope that we may receive the expert opinion of my hon. Friend the Member for Henley (Mr. Johnson) who has already been identified—even by Labour Members—as the expert wordsmith on the Committee. Speaking as a mere lawyer, I know that there is a difference in the law when deciding between ``risk'' and ``serious risk''. It is a significant difference and that is why I support the amendment.

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

The amendment is spot on. Let us suppose that we reworded the clause so that it read:

``must, if the prosecutor or Director believes there would be a slight risk of injustice''.

Even a ``slight risk of injustice'' is a matter that should be brought to the notice of the court. The term ``risk of injustice'' does not need further definition. I hazard a guess that the use of the word ``serious'' is the retrotting out of an accepted formula. When scrutinised, it would become fairly clear that it does not add up to much. If there were a risk of injustice, I would not expect a fair prosecutor to withhold information relating to it. The question of the seriousness of the risk is a matter for the evaluation of the court when the information has been imparted.

In the circumstances, subject to his officials' guidelines about the use of ``serious'' in other legislation, I hope that the Minister will accept the amendment. It would not diminish the force of the clause. We do not want the situation that we have had with public interest immunity issues, for example, in which one discovers that some information should have been made available to the court that might have coloured its decision. Once we start going down that road, the whole system will be brought into disrepute. Given my time as a prosecutor, I am a great believer in putting the cards on the table, unless there is a compelling argument for not doing so. In my experience, there hardly ever is.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 4:00, 22 November 2001

As my hon. Friend is rightly setting out, and as any member of the Bar or anyone who has been a solicitor-advocate knows, if one is prosecuting, one has a duty towards the court to bring all relevant concerns before it. There have been several serious cases in which, in the end, the prosecution had to say to the judge that things had gone so badly wrong that they could not, in their duty of prosecuting on behalf of the Crown, allow matters to go forward. Because that is a duty of the prosecution, it should certainly be brought to the attention of the court, even if, in the context of this Bill, there is only a slight risk of injustice.

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

My hon. Friend is right. Those of us who have been in practice—I am sure that this applies to Government Members who have been involved in such cases—know that it is more than occasional, or it certainly was before the rules were changed, for information withheld to be regretted subsequently by the prosecution, when it turns out to have been irrelevant, even when they thought, ``Oh well, it is there, but it is not serious or relevant enough.'' It is much better that it should be up front. In those circumstances, if the director has information that he should bring to the court, as it might cause a risk of injustice if he does not, he should do so.

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

I am concerned about the disclosure of names and addresses of witnesses. Would it be more likely under the amendment that the names and addresses of witnesses who had provided information confidentially would be disclosed? I would be hostile to that.

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

No. One of the classic areas of public interest immunity is protecting the identity of informants. The amendment is not intended to alter that in any way, and would not do so. It would, however, make it clear that once there is information that might cause a risk of injustice if the court is not able to take it into account in making assumptions, it must be communicated to the court. Otherwise, the director will be able to make his own value judgment on the necessity of disclosure, which is a mistake.

Furthermore, I cannot see the problem from the director's point of view. If the reasoning is that it is a public interest immunity matter, the ordinary public interest immunity rules would operate, which would protect the informer but still require the director, at a crunch point, to decide whether he wanted to continue the proceedings or disclose the information. However, it is not acceptable for directors or prosecutors to hide behind their own assessment of the seriousness of the risk of injustice. That should be decided by the court, which has to make the determination of the assumption.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I feel obliged to intervene under the knout of my hon. Friend. The adjective should be struck out because it is wholly otiose. It is easy to see why. The seriousness or otherwise of the risk bears no relation whatever to the scale of the injustice that might eventuate. A trivial risk of injustice might produce a great injustice and vice versa. That is why it is immaterial to the clause. I support the amendment and believe that the word ``serious'' should be whacked out.

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

I thank my hon. Friend. I am faced with a phalangeal range of views on this issue. I hope that I noticed correctly one or two Labour Members who appeared to be nodding in agreement with some of the points that have been made. I hope that the Minister will reconsider the matter. It will in no way damage the thrust of the Bill.

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

There appears to be broad attack on this wording: it should be not only removed but whacked out. We will have to try to give it serious consideration.

The amendment would require the director and the prosecutor to include in their statement information relating to any risk of injustice that would arise as a result of the assumptions being made. Assuming that the test of serious risk of injustice was maintained in relation to the assumptions, the amendment would mean that the court would need to decide whether the risk that had been identified by the director or the prosecutor amounted to a serious risk. I am aware that the hon. Member for Lewes is opposed also to the words ``serious risk'', so I am not dead sure about the thrust of his argument.

The present legislation requires that there must be a serious risk of injustice if assumptions are not to be made. That test is re-enacted in clause 11. Clause 17 is designed to ensure that the director or the prosecutor brings attention in his statement to any information that is relevant to the matter. It has been argued before in Committee that we believe that the test of a serious risk, included under clause 11(6)(b), is pitched at the right level. If the hon. Member for Lewes or other members of the Committee think that it should be lowered, we must disagree. It is pitched at the right level and provides adequate safeguards. As has been said before, we are not intent on changing our position.

It is right that, when furnishing information to the court in a case when assumptions are likely to be made, the director or the prosecutor should have to provide information that would show that there would be serious risk of injustice if such assumptions were made. That goes hand in hand with clause 11. However, a requirement on the director or the prosecutor to produce information relating to any possible risk of justice is not necessary. There must be some risk at that stage in the proceedings and, by that stage, I mean the statement of the director or the prosecutor.

Photo of Annette Brooke Annette Brooke Opposition Whip (Commons)

Is the Minister suggesting that it is appropriate that the director may withhold information under certain circumstances?

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

The hon. Lady must consider what the director is doing at that stage in the proceedings. He is making a statement to the court about whether the defendant has a criminal lifestyle and whether he has benefited from general criminal conduct. He must also provide details of the benefit from that conduct, including any relevant information. He must identify whether during his investigations he found out anything that poses a serious risk of injustice.

The purpose of that statement is to present the situation to the court so that the defendant can know what is being said and can be able to rebut it. It is not a replication of the position under the current legislation. We are bringing into legislation what has been the practice over time. We are requiring the director to include in his statement whether there is any risk—and there must be a risk in the information in the statement at that stage because the point in the proceedings at which the defendant's own evidence has been considered or even tabled has not been reached—so the court needs to know whether the director or prosecutor, when gathering financial information for the purpose of the statement, identified material that clearly showed that there would be an injustice should any assumptions be made about the case.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

I say this in a friendly way. I am worried. The matter is not as complete a vacuum as my hon. Friend might think. During the investigation, there will be many opportunities to interview a suspect under caution about the matters, and much of the content of the director's statement will come from such interviews. There will be a substantial steer during the investigation towards what the defendant may or may not say about property that has been seized. If a word must precede ``risk'', might it be ``real''?

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

Let me try to reassure my hon. Friend and the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke). The hon. Lady asked me whether the prosecutor must disclose all the information or is allowed to hide it from the court, and my hon. Friend suggested that there might be a problem. Clause 17(3) requires the director to reveal any information that is relevant to deciding the issues.

The director or prosecutor must make the case in the statement. All the relevant information must be revealed to the court. The court must be told if the director or prosecutor believes that any information, which must be laid before the court, suggests that there is a serious risk of injustice. The defendant may then put his case against the statement. The court will decide whether there is a serious risk of injustice based on evidence from the prosecutor or director and the defendant.

I do not know what changing the words would mean. The director or prosecutor might have effectively to label the information for whether any risk is present, rather than making a statement of facts. The statement should be factual and complete. The director or prosecutor is not permitted to withhold relevant information, and must flag up anything that would trigger a serious risk of injustice. If we suggest that the prosecutor or director must go further than that before the defendant has put his case, we get close to returning to the argument of reversing the burden of proof back to the prosecutor, which we do not want to do. For reasons that I have stated, the current wording is adequate. The prosecutor must reveal all relevant information, and if he believes from such evidence that the serious risk of injustice provisions in the assumptions would be triggered, he must flag that up. The defendant then gets the opportunity to put his case by rebutting the statement that has been made. I do not see any huge inadequacies in that, and I ask the hon. Gentleman to withdraw the amendment.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs) 4:15, 22 November 2001

I am concerned by the Minister's response, as I am genuinely worried by the inclusion of the word ``serious''—and that opinion is shared by other Committee members. The Minister's notes come from his officials, and it is their business to defend the Bill in its present form. However, this is a serious matter, and I ask him to think about it.

It is unfair to compare clause 11 with clause 17. They share the same form of words, which is

``a serious risk of injustice'', but the circumstances are different. In clause 11, the court must decide, on the evidence brought before it: it is for the court to judge whether there is a serious risk of injustice. The court is a neutral body between the prosecuting authorities and the defendant. The purpose of the court is to assess the arguments and to take matters forward.

However, subsection (4) is not about the court: it is about a partisan body—the prosecuting authorities—making a judgment. Evidence that the court might wish to have, and that might be helpful to the defendant, could be withheld.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

Subsection (4)(a) suggests that all the information that the director believes is relevant must be disclosed. Given that, I am puzzled about why subsection (4)(b) is necessary. All relevant information must, almost by definition, include any information that is relevant to a risk of injustice, whether or not that is serious.

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

I do not see it that way. The prosecutor's function is to secure a successful outcome. Subsection (4)(a) refers to the assumptions, which are intended to help secure that outcome.

The Minister cited subsection (3) in defence of the status quo—to use a Latin phrase, for the benefit of the hon. Member for Glasgow, Pollok.

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

It is a pop group.

One might interpret subsection (3) to mean that the prosecutor must disclose everything. However, it could also be interpreted to mean that the prosecutor should disclose everything that justifies the position that he has concluded—in respect of the defendant having a criminal lifestyle, for example—and that it does not necessarily oblige him to disclose matters that may lead him to reach an alternative conclusion. I am not convinced that subsection (3), or the point made by the hon. Member for Wrexham, would require the prosecutor to put that case fairly. After all, it is not his job to do that. If it is his job to put a balanced case that sets out the pros and cons, why is subsection (4)(b) necessary—especially as subsection (4)(a) is all-encompassing? The assumption is that subsection (4)(b) is necessary because a further test is put on the prosecutor: having reviewed the matter, he must ask whether there is a risk with regard to material that is not being disclosed. Ought the court to be made aware of that in reaching its conclusions? That is how I read the matter.

If that is correct, we return to the matter of serious risk. With regard to subsection (4)(b), my initial point—and the hon. Members for Beaconsfield and for Surrey Heath also referred to it—was, if the word ``serious'' is allowed to stand unqualified and unamended, does that mean that the prosecutor could come up with material that, in his mind, could lead to a suggestion that a risk of injustice is possible? The test that he has to follow is that of a serious risk of injustice. Therefore, he may conclude that that information does not have to be submitted as part of the statement that he gives to the court.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

Would not that information be relevant in connection with applying the assumptions under clause 11? It does not refer to the prosecutor establishing his case on the assumptions; it refers to applying the assumptions. That information must be relevant.

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

Of course it is relevant. That is why I want it included as information to which the court has access. However, I am not clear about whether the prosecutor regards it as relevant to include material that is detrimental to his case in the material that he submits to the court. For example, there may be evidence to suggest that a person has a general criminal lifestyle, but there may also be other material that would suggest otherwise, which therefore may not necessarily be included. My point is made in the interests of justice. A partisan body—the prosecutor—is being given an opt-out that allows it not to bring to the court information that may indicate a risk of injustice, albeit not a serious one. If the risk of injustice is low, and the prosecutor nevertheless makes it plain, the court will conclude that the risk is low and no harm will be done to the prosecution's case. If, however, material is held by the prosecutor that is not passed on to the court, and it subsequently transpires that that information should have been revealed, that is a difficult situation, which involves miscarriage of justice. That is all that I am saying. I plead with the Minister to look at the matter again, because his response does not cover the situation that I have described. It poses a risk of miscarriage of justice.

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

I have listened with enormous interest to the hon. Gentleman, or as much enormous interest as I have been able to muster. Will he clarify the relationship of Status Quo to this matter? I am conscious that they released a record called ``Down, Down'', and some of the things that they did were criminal, but he has completely failed to convince me of their relevance.

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

They also made a record called ``Pictures of Matchstick Men'', which is what I think about when I am subject to that kind of intervention. I am making a serious point about the clause.

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

Can I try to elicit from the hon. Gentleman where the risk lies? The prosecutor's statement dictates whether he is making the allegation that a person has a criminal lifestyle; the offences that have been committed by the defendant to brand him in that way; and the results of the financial investigation that he has undergone to identify the property that is available for confiscation as the proceeds of crime. The purpose of putting the statement before the court is to allow the defendant and the court to consider it. The defendant is given the opportunity to say, ``That is not true.'' Where does the risk of injustice, about which the hon. Gentleman is so worried, arise?

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

The risk of injustice arises, as it would in any court proceeding, when the prosecution has evidence that it does not share with the defence. That is the point. It is all very well saying that the defendant has a right to make his case, but what if the prosecution finds evidence that is helpful to the defendant, of which the defendant is not aware? Should that not be available to the court? I think that it should. If there is a serious risk of injustice, that is different from a risk of injustice. The Minister has not covered that point, nor has he explained the pertinent intervention from the hon. Member for Wrexham, who effectively said, ``If everything is hunky-dory and dandy, there is no problem and it is an open statement, why is subsection (4)(b) necessary?'' It is necessary because the Bill's draftsmen themselves recognise that there is a problem that needs to be covered by a safeguard. I share that view, but the safeguard is at the wrong point. I hope that the Minister will respond further, because it is a serious issue.

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

If the prosecutor has evidence, he must disclose that under subsection (3). The prosecutor is required to disclose the findings of his investigations to the court. He cannot discover information and hide that from the court. However, the statement is there to make his case. If we accept that the proof of serious risk of injustice, which is judged by the courts, is required to discount the other provisions in the Bill, we want the prosecutor to flag up the fact that the trigger has been reached in the statement that he takes to the courts. The defendant receives a copy of the statement, and he must make his own case. The court must decide whether that case is made.

The hon. Gentleman asked why the drafters included the serious risk provision in the clause. I do not know whether I made myself clear. The current legislation does not require the prosecutor to do that. However, that is the way in which the confiscation proceedings have worked. I am told that when prosecutors have discovered a serious risk during their investigations, which would trigger the protection through this legislation, they have disclosed that. We are putting such good practice in the Bill to ensure that it continues.

The amendment is unnecessary. It is not the normal way in which such things are, or should be, dealt with. The defendant can rebut the statement. The court will decide following the prosecutor's statement and the defendant's rebuttal.

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

The Minister himself admits that in the light of the present operation of civil legislation, he feels that it is necessary to include a safeguard that was not previously present. Clearly, the existing legislation's operation has not been without problem, and a safeguard is required. That is because there is a conflict of interest.

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

Neither the hon. Gentleman nor any hon. Member has produced evidence in Committee to show that the current proceedings have led to any injustice. If there were such evidence, we would have taken that into consideration. We are putting good practice that has occurred into the Bill.

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

I am interested to hear that. When phrases have been queried, the Minister has been keen to say that phrases have been lifted from previous legislation. When amendments have been tabled, he has said that things are being kept as they are. In this case, somebody has made a specific change to introduce a provision in the Bill. There must be a reason for that, which is, I believe, that the need for a safeguard has been identified. A safeguard has been introduced, but at the wrong level.

I am not convinced by the Minister's comments, and I will press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 13.

Division number 7 Adults Abused in Childhood — Clause 17 - Statement of information

Aye: 7 MPs

No: 13 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

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

On a point of order, Mr. O'Brien. It should be placed on record that we Opposition Members admire the Government Whip's steely glance, because she managed to persuade the hon. Member for Wirral, West, who spoke in favour of the amendment, to vote against it.

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

That is not a matter for me.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

Further to that point of order, Mr. O'Brien. The hon. Member for Surrey Heath deliberately seeks to misinterpret, as is his way. I did not speak in favour of the amendment. I proposed a different formulation of words.

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

That is not a point of order, it is a matter of procedure.

Clause 17 ordered to stand part of the Bill.

Clauses 18 and 19 ordered to stand part of the Bill.

Further consideration adjourned.—[Mrs. McGuire.]

Adjourned accordingly at twenty-nine minutes to Five o'clock till Tuesday 27 November at half-past Ten o'clock.