Clause 22 (Hansard, 15 June 1972)

§ Mrs. Shirley Williams
I beg to move Amendment No. 31, in page 19, line 17, after 'control', insert: 'or over which he had any right of possession or control'. It might be for the convenience of the House to discuss with this Amendment Amendments Nos. 43, in line 35, [Clause 22], leave out from beginning to 'unless' in line 36, and No. 44, in line 41 at end insert and (b) no such application shall succeed if the court is satisfied that the claimant either knew, or had reason to suspect, that the property was likely to be used for the purpose mentioned in subsection (1) of this section and, in either case, that the claimant consented to the offender having possession of the property'.

§ Mr. Deputy Speaker
If that is the will of the House, yes.

§ Mrs. Williams
These three Amendments relate to the Clause which concerns the forfeiture of property. The purpose of Amendment No. 31 is to simplify the situation which the court will have to decide. The court might be in some difficulty in deciding who had possession of or control over certain property, and the Amendment extends the Clause to read: or over which he had any right of possession or control". The purpose is to enable the court to establish more easily the relationship of the offender to the property in question.
The purpose of Amendments Nos. 43 and 44 is to alter the burden of proof with regard to an application to the court for property to be restored. Clause 22(3)(b) puts the burden of proof heavily upon the claimant, and in many cases it might be difficult for the claimant to 1977 establish a legitimate claim to the property in question.
We had in mind two cases, one of which was mentioned briefly in Committee and the other hardly mentioned at all. The one briefly mentioned was of a firm which had entered into a hire-purchase contract with the offender where the six months' limit imposed was so brief as to make it the more difficult for the claimant to establish his claim, granted that the present reading of the Clause is that no application will succeed unless the claimant satisfies the court. The Amendment changes the burden of proof so that it would succeed unless the court was satisfied that the claimant either had known or had reason to suspect that the property was likely to be used for the furtherance of the offence.
In Committee the Minister of State referred frequently to the kind of property that he had in mind as being likely to be forfeited—jemmies, sharp knives and similar items. Later he said: Of course the purpose of the Clause is to strengthen the power of the courts to deprive an offender of property which is held with the intention of committing a crime, so as to be more effective in the prevention of crime. It is harsher, it is stronger and it is to be welcomed for that purpose."—[Official Report, Standing Committee G, 15th February, 1972; c. 570.] I do not know what is the market price of a jemmy, but the market price of knives to be sharpened is fairly low. It is hard to believe that this of itself would create a great additional disincentive to crime.
When the Minister of State said this he may have had in mind more substantial property of the kind mentioned in Committee. Two pieces of property were frequently mentioned. One was the motor car, described by my hon. Friend the Member for Cardigan (Mr. Elystan Morgan) as not being manufactured for the purpose of illegality. Those hon. Members who watch what happens on motorways might question that, but he was clearly right. The other piece of property which was mentioned, the forfeiture of which might be regarded as heavily disincentive was a house. The Minister of State gave the example of the great train robbers, but does he think it conceivable that a house used by a 1978 fence for the purpose of storing stolen property might be able to be forfeited in this way?
There is a case which was not debated in Committee which is a significant one. Many cars and most houses have been paid for by the joint contributions of husband and wife. It is often said that the family of an offender suffers even more than an offender, and most of us would accept that that is so. Where a car or, a fortiori, a house is in the joint ownership of man and wife, I am not sure from the words of the Clause as drafted whether the wife would have any right at all under subsection (3)(b) to claim in the courts against the forfeiture of such property.
Clearly, if she had no such right, or if the burden of proof were to fall heavily upon the claimant so that it was difficult for her to establish her claim, in many cases the family of the offender would suffer far more than the offender himself. This would be especially so in the case of a motor car, because the offender, being in custody, would not in any case be likely to benefit from the use of it even if it were not forfeited.
I put the matter to the Minister of State largely as a probing question. Will he reconsider whether the burden of proof should lie as proposed in our Amendment, so that it would be for the court to be satisfied about the claimant's responsibility for what might be regarded as being virtually an accomplice in crime, rather than be so heavily on the claimant to show that he or she was in no way involved in the crime, a burden which a member of the accused's family might find very difficult to discharge.

§ Mr. Carlisle
Until the hon. Lady the Member for Hitchin (Mrs. Shirley Williams) explained it, I was a little at a loss to understand the precise purpose of these Amendments.
I take, first, Amendment No. 31. I am advised that, so far as we can see, the proposed words would add nothing to the Clause as drafted. The present phrase is, any property which was in his possession or under his control at the time of his apprehension". If he had, in the words of the Amendment, any right of possession or control", 1979 the property, I think I am right in saying, would be under his control in law. However, I am quite prepared to look at it to satisfy myself, and those who advise me, that that is so.
On the other two Amendments, the hon. Lady has introduced her ingenious argument about the house and the wife. I am reminded that it was suggested in Committee that Clause 22 could cover a house, but I do not think that it is seriously envisaged as likely that the court would make an order forfeiting a house where, for example, someone had been keeping stolen goods, although I concede that, from an immediate reading of the Clause, it would appear that the power is there. I think it most unlikely that that would be done, particularly if the court knew that there were rights of third parties involved, such as the right of the wife to the house.
In the circumstances, having in mind the type of articles likely to be forfeited, we felt it appropriate to put the burden of proof firmly on the person claiming the property back to show that he either had not consented to the offender having it or that he did not know the purpose for which he was intending to use it, that purpose being, in the nature of things, a serious criminal matter for the property to be subject to forfeiture.
However, I am prepared to ask those who advise me to consider what the hon. Lady said and satisfy themselves that there is no danger of this power being used in a way which would wrongly interfere with the rights of third parties. I do not believe that there is any such danger, but I am prepared to look at it.