HC Deb 18 February 1986 vol 92 cc199-207

`(1) Where—

  1. (a) there is tendered to the Crown Court by the prosecuting authority a statement as to any matters relevant to the determination whether the defendant has benefited from drug trafficking or to the assessment of the value of the proceeds of drug trafficking by him, and
  2. (b) the defendant accepts to any extent any allegation in the statement, the court may, for the purposes of that determination and assessment, treat his acceptance as conclusive of the matters to which it relates.

(2) Where—

  1. (a) a statement is tendered under subsection (1)(a) above, and
  2. (b) the court is satisfied that a copy of the statement has been served on the defendant, the court may require the defendant to indicate to what extent he accepts each allegation in the statement and, so far as he does not accept any such allegation, to indicate any matters he proposes to rely on.

(3) If the defendant fails in any respect to comply with a requirement under subsection (2) above he may be treated for the purposes of this section as accepting every allegation in the statement apart from—

  1. (a) any allegation in respect of which he has complied with the requirement, and
  2. (b) any allegation that he has benefited from drug trafficking or that any payment or other reward is the proceeds of drug trafficking by him.

(4) Where—

  1. (a) there is tendered to the Crown Court by the defendant a statement as to any matters relevant to determining the amount that might be realised at the time the confiscation order is made from property available in respect of the defendant, and
  2. (b) the prosecuting authority accepts to any extent any allegation in the statement, the court may, for the purposes of that determination, treat the acceptance by the prosecuting authority as conclusive of the matters to which it relates.

(5) An allegation may be accepted or a matter indicated for the purposes of this section either—

  1. (a) orally before the court, or
  2. (b) in writing in accordance with Crown Court Rules.

(6) No acceptance by the defendant under this section that any payment or other reward is the proceeds of drug trafficking by him shall be admissible in evidence in any proceedings for an offence.'.—[Mr. Mellor.]

Brought up, and read the First time.

Mr. Mellor

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to discuss Government amendments 26 to 30.

Mr. Mellor

This is another substantial new clause which again emanates from the helpful discussion we had in Committee. It particularly focuses on points raised by the hon. and learned Member for Montgomery (Mr. Carlile). I hope that the hon. and learned Gentleman will not mind my saying, and I am sure that the hon. Member for Birmingham, Erdington (Mr. Corbett) will agree with me, that they had a very good morning in Committee and made a number of sage contributions to which we have responded. I think that the hon. Member for Erdington will agree with me when I say, "If only it were always so".

4.15 pm
Mr. Alex Carlile


Mr. Mellor

Let me finish my little dig, then I shall give way to the hon. and learned Gentleman.

We were engaged until a very late hour last night on an important measure for animal welfare on which there was a similar measure of agreement between myself and the hon. Member for Erdington. The alliance was somewhat more dismally represented than on this Bill by the hon. Member for Portsmouth, South (Mr. Hancock), who is no substitute for the hon. and learned Member for Montgomery. He was aided and abetted by the hon. Member for Leeds, West (Mr. Meadowcroft). They received a fairly dusty response from the House, and I hope that they will attend a master class conducted by the hon. and learned Member for Montgomery on how to make an effective contribution to non-partisan Bills. I suspect that they left the Chamber last night feeling rather aggrieved at the reception they received. I know that I can rely on the fairness of the hon. and learned Gentleman to agree that when he raises a good point we always take it seriously.

Mr. Carlile

Will the hon. Gentleman accept that the agreement in relation to my suggestions during the first meeting of the Committee caused me a good deal of anxiety? I shall ensure that his comments, which were very generous and which I appreciate, are not circulated to all alliance Members in this House or I may find that my views are rarely accepted by them.

Mr. Mellor

I should be glad to welcome the hon. and learned Gentleman to the Conservative Benches if the amount of agreement becomes embarrassing to his colleagues.

I shall address myself to the substantial new clause, which I hope is a sensible one. As it is a major new clause, perhaps I shall be forgiven if I go through it with a little care.

The new clause derives from the suggestion made by the hon. and learned Member for Montgomery in Committee. From the beginning, we had a provision in clause 2(2) enabling the prosecution to tender a statement to the court of what it believed to be the proceeds of the defendant's drug trafficking. The idea behind that is that in straightforward cases, where the amount of the proceeds is known to the prosecution, such a statement, if accepted by the defence, would provide a convenient way for the court to settle the amount of the confiscation order. There will be no need for complex discussions about the offender's property, how much he can prove to be legitimately acquired and so on.

I stress the importance of those practical matters because, as I hope those hon. Members who have practised in the courts will appreciate, it is easy to take a view that is too academic in such matters. Ultimately, we have to recognise that throughout the country hard-pressed and busy courts are sitting.

The Bill will entail a great deal of extra work for the prosecution, defence, judge and those who serve him in court and we have to try to fix upon procedures which will enable business to flow steadily and efficiently in the courts. They should not be procedures which will steamroller through an unjust result but procedures which allow the judge to receive the maximum help from the prosecution and defence. When matters are agreed, they can readily be disposed of. When they are not agreed and there is a dispute, the extent of the dispute can be properly defined and a proper discussion can ensue.

In that spirit, we always intended that the defence should have the right to challenge such a statement from the prosecution. I see that the hon. and learned Gentleman is sending a note to Hansard. Anything that is said about his colleagues must be absolutely right and I can well understand that.

The hon. and learned Member for Montgomery suggested that the defence should have the right to cross-examine the person making the statement and that the defence should have to give notice of the matters it wished to dispute. That finds its echo in the matters canvassed in the Roskill report on fraud. It is significant that many hon. Members who bring court experience to the debate recognise the need for court procedures, in many respects, to move into the 20th century. The hon. and learned Gentleman managed to achieve that in one subsection, but it has taken the Government a whole new clause. I think that suggests that we find it a more complex matter, but I hope that we have not been prolix for the sake of it.

Before I go through the subsections of the clause, I shall refer to the main points. The intention is still to provide a short cut for the court to settle the amount of the confiscation order. If the defence accepts a prosecution statement and the judge is satisfied, the calculations can end there. It is important to bear in mind that it is the judge who makes the decision and it should not be cooked up between the prosecution and defence. Just as in other issues which are resolved between the parties, we must leave the judge to intervene, if he feels that an improper arrangement has been made, and say that he will not accept it. If the defence says that it wishes to challenge parts of the statement, the undisputed parts will still provide some common ground and narrow the area about which arguments must be heard. That must be of considerable assistance to the court. The defence will have an express right to challenge and the prosecution will be notified of those matters which are to be disputed.

We have not provided a specific right of cross-examination because in the circumstances envisaged by the proposed new clause that would be part of normal court proceedings. Although the initial prosecution statement might well include hearsay, we think that it would be preferable for any cross-examination to be of witnesses providing first-hand evidence in the interest of the prosecution and the defence. I think that it very much arose out of the point made by the hon. and learned Member for Montgomery and others.

In the new clause we have included a procedure that was not contained in the original Bill which seems to us to be a useful addition. The defendant is to be able to tender a statement as to the amount which might be realised from his property and from property in the hands of third parties which is liable to confiscation. If all or part of that statement is acceptable to the prosecution, that, too, will ease the task of the court in settling the amount of the confiscation order, particularly where the value of the property available is less than the assessed proceeds.

I intend to look in a little more detail at subsections (1) to (5) and then to make a special point about subsection (6). Subsection (1) provides for the prosecution to tender a statement to the court. The content of the statement is not specified in detail, but it must be relevant to determining whether the defendant has benefited from drug trafficking or to assessing the value of his proceeds.

It is envisaged that the statement would contain the prosecution's estimate of his proceeds, together with, wherever possible, information about the property that is alleged to be those proceeds: its value, the date when it was acquired and, where relevant, the amount and date of any expenditure alleged to have come from such proceeds. The new clause, like the present clause 2(2), does not require the prosecution to tender such a statement and in practice it will do so only in cases where it is satisfied that the full extent of the proceeds is known.

If the defence accepts any or all of the statement, the court may treat the accepted parts of the statement as conclusive. If the defence accepts the statement in full, the court is likely to impose straight away a confiscation order for the amount specified in the statement. That, in a nutshell, is the short procedure. It meets the point of the hon. and learned Member for Montgomery and the hon. Member for Erdington that we might be taking too hard a line with the small time user pushers by making these provisions apply to them as well as to the person whom we primarily intend to catch — the large scale drug trafficker.

We rejected the Hodgson committee's advice because we felt that we could not add the further complication of having to prove the value of the proceeds or of the drugs. We felt that this would be an impediment to justice. However, as a matter of common sense, where the individual concerned is a small user dealer — even though anybody who deals in drugs, for whatever motive, is a public menace and has to be dealt with—nobody will want to bring all of the machinery that is intended to deal with the millionaire who has assets all over the place into play for the person who is operating from squatted property in central London or Glasgow.

Therefore, the subsection (1) procedure provides a short form whereby the prosecution, reading between the lines, will agree on a relatively limited sum which the defence will be able to accept. The matter will be primarily disposed of in relation either to punishment or to the opportunities of treatment for the individual. The financial side will not come into play to any great extent. I hope that subsection (1) of the new clause recognises that there is that kind of straightforward case and that it does not make a straight way crooked, as sometimes we manage to do in the provisions that we introduce. There will, however, be more complicated cases. They are addressed in the subsection.

Subsection (2) allows the court, if it is satisfied that a copy of the statement has been served on the defendant, to require him either to indicate his assent or to dissent from each allegation in the statement and, where he disagrees on any point, to indicate the matters upon which he intends to rely. This will have the advantage of narrowing down the areas of dispute while giving to the defendant the positive right of challenge and to the prosecution notice of how the defendant intends to disprove any element of the statement.

Although the provision sets no particular time limit on the serving of the statement upon the defendant, the court will need to be satisfied that the defendant has had sufficient time to consider it before he is required to give his response. The court will be able to adjourn, if necessary, although the aim of the provision is to try to ensure that these matters should be dealt with as far as possible before rather than after an adjournment. However, one has to recognise that adjournments will be necessary in certain instances. Where guilt or innocence is at issue, one cannot expect matters to be resolved with the consent of the defendant when the issue of whether he is a drug trafficker is contested.

Subsection (3) provides that unless the defendant disputes any allegation he may be regarded as accepting it. However—again I hope that this provides a check and balance safeguard that shows the respect we are paying to established court procedures—silence must not be taken as indicating acceptance of any allegation that he has benefited from drug trafficking or that any particular property is the proceeds of drug trafficking. Thus, if he is silent, he may be deemed to accept a statement that he owns a particular house, that it is worth £75,000 and that he acquired it four years ago; but he may not necessarily be deemed to accept, by silence alone, that it was the proceeds of drug trafficking. I hope that that is a clear and proper distinction. However, I should add that the assumption that it was the proceeds of drug trafficking will operate after he has accepted ownership, but he will retain his right to try to disprove the assumption. That dovetails neatly into the provisions that have already been agreed.

Subsection (4) provides a new and useful procedure whereby the defendant can offer to the court a statement about his property and its value and other property in the hands of third parties which is liable to confiscation. If the prosecution accepts all or part of that statement, the judge may regard that acceptance as conclusive. By providing a basis for settling the amount that might be realised, this procedure will simplify the task of the court in deciding the proper amount of the confiscation order in those cases where the assets available are less than the estimated proceeds. I imagine that that will be a relatively commonplace experience where someone has used the proceeds to live high on the hog, as is not an uncommon experience.

Subsection (5) allows any acceptance or basis of challenge to be given either orally or in writing. The hon. and learned Member for Montgomery sought a specific right of cross-examination by the defence. That is not included in the new clause. In the procedure we propose such cross-examination would, we believe, be part and parcel of normal court proceedings. However, it is envisaged that cross-examination will be allowed of witnesses who have first hand evidence, because that is always the best evidence.

I direct the attention of the House in particular to subsection (6), which might need to be discussed. Subsection (6) provides that acceptance by the defendant that particular property was derived from drug trafficking is not to be admissible in evidence against him in other criminal proceedings. This provision has been included to encourage candour by the defendant so that his proceeds can be accurately and speedily assessed. I emphasise that the concession is limited to making his acceptance inadmissible as evidence. There is no question of providing immunity from prosecution if other independent evidence can be put forward. However, I tender this part of our proposals rather more tentatively than the rest. I have had first and second thoughts about it. There is a balance of advantage that I shall explain.

We want to provide a procedure that can be speedily and sensibly carried forward in the hurly-burly of a busy Crown court. It will be an advantage if every inducement can be given to the defendant after the question of his guilt or innocence has been settled to get the mechanics of the confiscation order out of the way. It is not a question of offering immunity from prosecution. If he says something about the property that is to his detriment in another context it will not be used against him, but if other evidence tends to show that the particular item of property was the proceeds of, say, a bank robbery, that evidence will be admissible against him.

If, however, the consequence was that in the unlikely case of an individual having persuaded the court that the items of property were not the proceeds of drug trafficking but were the proceeds of another crime and it was not possible subsequently to adduce other evidence which established that other offence so that he might be tried and convicted of it, it might seem to be inappropriate that he should have the opportunity to retain possession of property that had been acquired unlawfully, although not through drug trafficking. There is a balance to be struck. I would not hesitate, if it were the opinion of the House that subsection (6) was not appropriate, to give an undertaking to withdraw it in another place.

Subsections (1) to (5), I believe, very much follow the wishes expressed in Committee two weeks ago. I am more troubled about subsection (6). I believe that the balance of convenience for including it in the Bill is a narrow one.

The consequential amendments simply allow for the fact that the House has adopted new clause 3, if that be our decision, and amend the Bill accordingly.

4.30 pm
Mr. Alex Carlile

I am grateful to the Minister for bringing to the House and moving what I think is a welcome new clause.

On Second Reading and in Committee I was concerned at what seemed to be an inadequate right for the person appearing before the court for sentence to challenge the statement made by the prosecution before the court as to the extent to which he had benefited from the proceeds of drug trafficking. My concern was particularly for third parties. I must confess that I still have some misgivings, although they may not be strictly relevant under this new clause, as to the protection given in the Bill to third parties.

I accept what the Minister has said about the right to cross-examine. Under the general procedure set out in the Bill, and in this new clause in particular, there will be a right to cross-examine. I particularly welcome the Minister's statement to the effect that the evidence which will be called on behalf of the prosecution will be the best evidence available. I use the term "best evidence" as a term of art, which I think hon. Members will understand. Thus when the evidence is given it is not hearsay evidence and so it is not necessary to challenge hearsay evidence which is often met with a hearsay stonewall answer.

I read subsection (6) with great interest. On balance, I think that it falls within the general pattern of the new clause and is a satisfactory addition to the original provisions in the Bill. I shall be interested to see how the new clause ultimately is operated and how it works in the courts.

Many of us who have practised in the criminal courts over the years believe that there are many other areas in which there is room for the defence to be required to make statements to the prosecution before the hearing so that issues can be narrowed down. We have seen a number of notable experiments in relation to pre-trial reviews in particular in which it has been sought to narrow down the issues to shorten the length of trials and to reduce that very unwelcome element of surprise, which often leads to injustice to both sides in criminal cases. I hope that we shall see these provisions work well enough for the House to want to consider at some future date applying some similar provisions to other areas of the criminal law.

I agree with the tentative and obviously reserved statement by the Minister to the effect that the provisions of subsection (6) are likely to encourage candour. I believe that they will indeed encourage candour and that defendants, who have, after all, been convicted and who are to be sentenced before the provisions of the Bill come into operation, will be seeking to settle any dispute by agreement without the need for a further lengthy hearing before the court. In my view, subsection (6) is likely to strike the right balance, and I hope that it will not be thought fit to withdraw it in another place.

Mr. Keith Raffan (Delyn)

I welcome the new clause, which I think is an improvement on the previous provision. If it is sufficient to satisfy the concerns voiced by members of the Opposition and, therefore, gives more of an all-party push to the Bill—although we have already had that—the message must go out from the House that the Bill has strong all-party support. If the doubts expressed by Opposition Members have been allayed, the Bill is that much stronger.

The point which I wish to raise briefly relates to a dialogue my hon. Friend and I had in Committee when I raised the importance of international co-operation on this matter, something that I have always emphasised is of vital importance. While my hon. Friend accepted that that was a crucial point, he pointed out that, where a defendent had his tainted assets overseas and claimed that all his assets in this country were legitimately earned assets, the courts could still proceed against those legitimate assets to the total value of the tainted assets overseas. In the sort of dealing which might go on, albeit to speed up the process of law, which I welcome, the defendent could claim that all his assets in this country were legitimate and that all his assets in some country with which we do not have a bilateral agreement — Haiti, the Philippines or somewhere exotic — were the tainted ones. He could claim that none of his assets in this country were tainted but were earned through the sweat of his brow and years of labour. As a non-lawyer, I hope for some reassurance from the Minister.

The Hansard report of Committee proceedings continues to state that I am a lawyer. I disclaim any such pretension, and no such label should be attached to me. If a defendent tries to be too clever by half—and we are dealing with the most sophisticated element of the criminal fraternity—and claims that all his assets in this country are legitimate, and that it is only in Haiti or the Philippines that his assets are tainted, I hope that the Minister will give us the reassurance that we shall proceed very hard and immediately against the legitimate assets of such a person to the cumulative value of the tainted assets overseas.

Mr. Robin Corbett (Birmingham, Erdington)

The hon. Member for Delyn (Mr. Raffan) has a difficult choice to make. I understand that, before coming to the House, he was a member of the press. I do not know which would win in a popularity competition between a journalist and a lawyer—and I say that as a former journalist.

I am not sure that I can assist the Minister very much with regard to new clause 3. Having listened to his explanation, I want to thank him for the care and faithfulness with which he has responded to the points made in Committee. Like the hon. and learned Member for Montgomery (Mr. Carlile), I think that the balance is about right. Anything that can be done to encourage candour in the courts is especially welcome. Who knows, if it catches on there, it might even catch on here.

Mr. Mellor

That is a shrewd blow aimed at the end of an amiable intervention by the hon. Member for Birmingham, Erdington (Mr. Corbett).

In reply to my hon. Friend the Member for Delyn (Mr. Raffan), may I say that in our preparation of the Bill we have had well in mind the fact that a major trafficker will almost certainly have some assets out of the jurisdiction. In addition, a major trafficker may well be involved in legitimate business and have taken to drug trafficking, or he may have gone into a business for a sufficient length of time as a cover for drug trafficking operations, so that one could not say that all parts of the assets of that business were tainted. We therefore resisted the temptation that our American experience might have led us into of laying emphasis upon the confiscation of the pieces of equipment that have been used in, or derived from, drug trafficking in favour of making a computation of the value of those items and making it mandatory for a court to make a confiscation order in the total sum, leaving it to the High Court, if necessary, itself to enforce that order against such property as it can find. That is an important point, because if the tainted assets and the assets within the jurisdiction are one and the same thing, their recovery is perfectly straight forward. However, as in the example postulated by my hon. Friend, if the tainted assets are mainly outside the jurisdiction, the assets that cannot be linked to drug trafficking are within the jurisdiction, the offender refuses to bring those assets back into the jurisdiction, and we do not have arrangements with those other countries to enforce the order in their courts— we appreciate that it will be a time-consuming business to get those arrangements—it will be possible to satisfy the confiscation order by the seizure and disposal of the untainted assets that lie within the jurisdiction. If those untainted assets realise a sum sufficient to discharge the confiscation order, well and good. If there is a shortfall and it is clear that the offender could, if he chose, bring back other assets into the jurisdiction, he would be liable to serve the additional sentence of imprisonment in lieu of satisfying the court order.

In the absence of a full-scale international agreement, which we have been seeking with great vigour, and which is being sought at present in Vienna at the meeting of the United Nations Commission, I cannot pretend that we can iron out all the problems that will result from people placing their assets overseas. But we shall be able to resolve many such cases, as I hope I have demonstrated today.

I heard the reassuring remarks of the hon. and learned Member for Montgomery (Mr. Carlile) and the hon. Member for Erdington on subsection (6). I had to judge whether I should introduce the provision without including it in the new clause, or whether I should say, halfheartedly, "It is there, but I will remove it if you do not like it." I am glad that my decision to keep it in is apparently correct, although we must see what the other place has to say about it.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Forward to