Clause 43

Policing and Crime Bill – in a Public Bill Committee at 11:45 am on 24th February 2009.

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Question proposed, That the clause stand part of the Bill.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I have two points to make in relation to the clause, which extends the limitation period in which civil recovery proceedings can be brought from 12 to 20 years. My first point is on the ability to obtain a fair trial after such an extended period. The Minister may be aware that in response to the consultation on the asset recovery action plan the Fraud Advisory Panel voiced the concern that

“the problem with extending the limitation period is that it may be considerably more difficult for a defendant to assimilate evidence necessary to defend the case; memories may be faded and records thrown away.”

The panel was concerned about the impact of the clause on the ability to obtain a fair trial. Why does the Minister consider the 20-year period appropriate? Has he thought through the Human Rights Act implications for the ability to obtain a fair trial after an extended period? Although, if someone simply got away with it and the authorities have finally worked out that assets have been received by criminal activity, I respect and understand the need to ensure that the benefit of those assets is not in the hands of that person, a significant period has elapsed. There is therefore a question of proportionality and what is appropriate to balance the private versus the public arguments and to ensure due process.

My second point is slightly different. A victim of an acquisitive crime, for example, must generally commence any action against the perpetrator within 12 years of the crime. Why should the state be in the privileged position, as envisaged in the clause, of having a further eight years to bring an action for civil recovery if an individual in similar circumstances does not have that benefit? In other words, why have the Government decided that there should not be a level playing field, and why should civil recovery procedures not apply equally to a victim of an acquisitive crime? It would be interesting to know why the Minister has fastened upon that point as particularly relevant.

In what circumstances have the police and SOCA advised him that they have identified assets that were received through unlawful activity, but they now feel prevented from taking action? How significant a problem is that? How many cases does the Minister expect will be revisited as a consequence of the clause, and why does he therefore regard it as important and necessary to the Bill?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

The hon. Gentleman’s second point—on civil recovery and how far one goes back in relation to evidence of an acquisitive crime—is interesting. I will say something about that in a moment.

For once, I am not sure whether I properly understand his point about fair trial. It strikes me that, whether a trial is in the civil or criminal courts, if the evidence is not of sufficient quality, it is part of a court’s fundamental process that proceedings will not be able to be pursued in the judicial system. There will be cases where it will be more difficult to gather evidence and collect material—as the hon. Gentleman said, memories fade—but that is part of most court processes. I understand his point that, if the amount of time is extended, such circumstances are more likely to occur, but that will clearly be a matter for the court to consider. The inadequacy of memories or written material is not a reason to say that it is not appropriate for us to legislate under the powers. I would have thought that that is something that the court will take into account.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

To clarify the point that the Fraud Advisory Panel highlighted, I am comparing the resources that might be available to the arms of the state to launch a prosecution and to obtain all the evidence and documents mentioned by the Minister with the ability of an individual to defend that case in circumstances where a significant period has elapsed. We presumably have limitation periods for a reason, and the Minister might be able to make an argument for a period of more than 20 years, but the issue has clearly been raised with him, Why has 20 years been decided upon and why is the period of 12 years to be extended now?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

The hon. Gentleman makes the point that I was about to make. He has referred to one particular response that we received on extending the civil recovery period from 12 to 20 years, but a significant number of people responded by saying that there should be no limit on the period in which we seek to recover assets. Again, a judgment has been made. We received evidence from SOCA and law enforcement of some cases that have been time barred, so we thought it appropriate to extend the time period from 12 to 20 years.

To return to my earlier response to the hon. Gentleman, he will know better than me the process in court, but as far as I see it, the rights of defendants in court are always protected as far as possible by the court. Enabling defendants to defend themselves, particularly in civil proceedings, is one of the measures that the court adopts to ensure that a fair trial takes place. I understand the point that the hon. Gentleman makes about the full power of the state being used as against the rights of an individual to protect themselves.

A court is a public authority for the purposes of the Human Rights Act. It has to ensure, as a matter of principle, that a fair trial can take place. I should have thought that the fact that that is laid out will ensure that there is a fair trial, even when we have extended the civil recovery powers from 12 to 20 years. Although the hon. Gentleman tries to equate the criminal law with the civil law, as I understand it they are significantly different. Therefore the civil recovery process is a different process from the criminal process and so the time periods will be decided upon in the appropriate way.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 12:00 pm, 24th February 2009

While the Minister is right to say that there is a distinction between civil and criminal law, the issues overlap to a certain extent as we go into this sort of area. Is he prepared to think about recovery on criminal proceedings, given that there does not seem to be a level playing field here? It is being extended on one side on the same or similar subject matter, yet the criminal law seems to have an earlier limitation period which, on his line of argument, seems less supportable now.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I will always consider things. I have become more of an expert on the civil law than the criminal law and more of an expert on all sorts of different laws since I have had this position. I have never studied law and nor am I likely to. I understand the term is a pupil barrister and I am very much a pupil. I will consider the point that the hon. Gentleman has made. This is an important provision. There have been problems with the limit and this is a sensible way forward.

Clause 43 amends the Limitation Act 1980 and its equivalents in Scotland and Northern Ireland in order to extend the limitation period in which civil recovery proceedings may be brought for the recovery of the proceeds of unlawful conduct under chapter 2 of part 5 of the Proceeds of Crime Act 2002. The clause will enable civil recovery proceedings to be brought within 20 years from when the original property was obtained through unlawful conduct, rather than 12 years as at present. The limitation period applies from the date on which the cause of action of the relevant enforcement authority, for example SOCA, accrued. The date is the date on which the property was obtained through unlawful conduct.

The civil recovery scheme for the recovery of the proceeds of crime, which was introduced in the Proceeds of Crime Act, has been running successfully now for around six years. Not surprisingly, the new scheme got off to a slow start as cases and the new legislation were tested in the courts, but the Assets Recovery Agency successfully saw off the legal challenges and we now have a robust scheme in place.

Civil recovery is a powerful tool in attacking criminal finances. That is why, when we merged the key functions of the Assets Recovery Agency into SOCA, we took the opportunity in the Serious Crime Act, which the hon. Gentleman and I also had the pleasure of debating, to give civil recovery powers to a wider range of authorities, including the Director of Public Prosecutions and the director of the Serious Fraud Office. The Serious Fraud Office had an early success in the use of these powers with the obtaining of an order of £2.25 million last October, which has been paid.

The experience of civil recovery over the last few years has shown that a 12-year limitation period for bringing proceedings has allowed some potentially recoverable property to go untouched, as the enforcement authorities are prohibited from taking any action. Civil recovery powers are increasingly being used to tackle serious organised crime, which by its very nature frequently goes back further than 12 years, and there are career criminals whose serious criminality can last much of their adult lives. In addition, large-scale international corruption can go back decades, and if civil recovery is to be used to recover assets stolen by corrupt regimes, as envisaged by the World Bank and other international partners, we will have to go back further than 12 years.

We did consult on extending the 12-year limit in civil recovery cases as part of a wider asset recovery action plan. A large majority of the respondents favoured an extension of the time limit, with some calling, as I have told the hon. Gentleman, for it to be removed altogether. The clause seeks to address those views by extending the limit to 20 years. Subsection (2) will apply the 20-year limit to causes of action accruing within 12 years of commencement, which is an important point. In other words, causes of action falling within the existing 12-year limitation period will be subject to an additional eight years in which they are actionable in the future. That will capture those whose property is already liable to civil proceedings under the current 12-year period by prolonging the time for bringing proceedings. It will also cover future cases in which the cause of action accrues more than 12 years after commencement, and those cases will also have the 20-year limitation period. Those cases in which the 12-year limit has already expired will remain time-barred and will not be reactivated. I believe that that is a proportionate measure to recover assets acquired through unlawful conduct.

Question put and agreed to.

Clause 43 accordingly ordered to stand part of the Bill.

Clauses 44 and 45 ordered to stand part of the Bill.