HL Deb 09 May 1996 vol 572 cc264-9

7.3 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield) rose to move, That the draft order laid before the House on 16th April be approved.

The noble Baroness said: My Lords, the purpose of this order is to strengthen the measures available to deprive convicted criminals of the profits of their criminal activity. It will provide more effective powers at all stages of the confiscation process—enhanced investigation powers, more effective confiscation procedures in the courts and improvements to the enforcement powers once a confiscation order has been made.

The proposed order will update and restate Northern Ireland's legislation relating to the confiscation of the proceeds of drug trafficking and other serious crime. It seeks to bring Northern Ireland broadly into line with the rest of the United Kingdom by introducing provisions already in force in England and Wales by the enactment of the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995. The order will also introduce additional investigation powers into the proceeds of crime which are not generally available in other parts of the UK.

As your Lordships will appreciate, many of the provisions in this order either re-enact provisions already in force in the Criminal Justice (Confiscation) (NI) Order 1990 or replicate measures which are already in operation in England and Wales. I shall therefore comment briefly only on the main changes to the law in Northern Ireland which this order will introduce. Those include: an obligation on the court to confiscate the proceeds of offences where that is requested by the prosecution; an obligation on the court to assume that all property in the possession of the convicted drug trafficker and property which has passed through his hands in the past six years represents the proceeds of drug trafficking; the abolition of the £10,000 threshold for confiscation orders in respect of crime other than drug trafficking; and where a person has been convicted of at least two qualifying offences, discretion for the court to make the statutory assumptions about the origins of the defendant's property.

The order will also ensure that a convicted criminal cannot satisfy a confiscation order by opting to serve a prison sentence instead of paying the amount due. Other changes will be to give the court the power to reconsider making a confiscation order in a case where it did not previously do so or to revise its original assessment of an offender's proceeds of criminal conduct within six years of a conviction. The court will also have power to make a confiscation order against the estate of a convicted criminal who has died or against a defendant who has absconded. In addition, the order will extend to general criminal conduct the investigative powers currently available only in drug trafficking cases.

The order also provides for additional powers of investigation which are not generally available elsewhere in the UK. Under Article 49 of the order the court is empowered to appoint a financial investigator to assist the police in specific inquiries where it is considered that the investigation could be more effectively carried out with the involvement of specialist assistance. It is the Government's view that those powers are necessary in Northern Ireland due to the existence of a racketeering problem which is different in nature and extent to that which exists elsewhere in the UK.

Much of the racketeering which goes on in Northern Ireland involves terrorist organisations or persons linked to them. That activity includes armed robberies, drug dealing, extortion, protection rackets and counterfeit goods and money. The Northern Ireland (Emergency Provisions) Act 1991 contains additional powers of investigation—the authorised investigator provisions—into the finances of terrorism. Similar additional powers of investigation in relation to the proceeds of crime, whether or not it is connected to terrorism, are now proposed in this order. These provisions will be at least as wide as the existing terrorist finance powers which they will replace when the current EPA is repealed.

In conclusion, the measures contained in this draft order are designed to provide a more effective system for depriving convicted criminals of their profits. As some noble Lords will be aware, honourable members on all sides in the other place gave this proposed order a warm welcome. I hope that your Lordships will see it in a similar light. I beg to move.

Moved, That the draft order laid before the House on 16th April be approved.—(Baroness Denton of Wakefield.)

Lord Prys-Davies

My Lords, I speak from the Dispatch Box as my noble friend Lord Williams of Mostyn, who, as noble Lords will know, speaks from these Benches on Northern Ireland matters and is unable to be with us this evening.

I am grateful to the noble Baroness, Lady Denton, for identifying and explaining the key new provisions of this complex and extremely important order which was promised by the noble Baroness in the course of the Second Reading debate of the Northern Ireland (Emergency Provisions) Bill on 21st March. I have also benefited considerably from reading the debate on the order which took place in the Fifth Standing Committee on Delegated Legislation in the House of Commons on 2nd May when, as the noble Baroness has said, it was not challenged. On the contrary, it was warmly welcomed.

While the order re-enacts some provisions of existing law which are to be found in three different pieces of Northern Ireland legislation, it more importantly brings Northern Ireland law broadly into line with that of the rest of the United Kingdom and also introduces the significant new powers which the Minister has outlined. It should therefore provide a powerful weapon in the fight against serious crime referred to by the Minister and the investigation of the proceeds of such crimes and their confiscation. It meets a very important need. I am aware that there has been a particular sense of outrage at the present state of affairs which seemed to allow paramilitary organizations and international organisations in Northern Ireland and the shadowy figures associated with them too easily to enjoy the financial proceeds of serious crime.

Among the other important provisions, the order empowers the court to confiscate benefits—whether they be large or small—acquired in consequence of crime. The basis on which that power rests is not novel. I recall that almost 60 years ago the distinguished Law Lord, Lord Atkin of Aberdovey, a part of the country I know well, ruled that public policy requires that, The Court should not recognise a benefit accruing to a criminal from his crimes". That is the dictum of Lord Atkin of Aberdovey. It seems to me that the confiscation of the proceeds of criminal conduct is a development of Lord Atkin's principle.

I have one question of detail that I wish to raise with the Minister. I tried to follow her speech very carefully. Would she be good enough to clarify whether the court can make a confiscation order where the prosecutor has not asked for such an order under Article 8?

I now turn to a point which has fuelled some concern. Will a confiscation order made under this legislation be legally enforceable against assets overseas? Legal rules differ between jurisdictions. The Minister will be aware that anxiety has been expressed that the recovery provisions contained in the order may not always be enforceable where the assets are situated in some countries overseas. This is a difficult and taxing matter. The Ministerial colleague of the noble Baroness, Lady Denton, in the standing committee in another place said, when questioned on this issue, that the matter went, beyond the confines of the order". I am not so sure. It would certainly assist if we could have information, to the extent that the Minister is able to give it, as to whether the powers in the order will be available against assets in all the countries which are signatories of the Brussels and Locarno Conventions. Subject only perhaps to the question of burden of proof, to which I shall come, I find it difficult to believe that the enforcement in another jurisdiction of an order of confiscation made under the terms of this legislation would be contrary to any reason of public policy in any democratic country. If international law is insufficiently developed in this respect, I venture to hope that the problems experienced in Northern Ireland, together with the order, will be an incentive for other countries to cooperate decisively to confiscate the proceeds of criminal conduct.

Although the order is uncontroversial, I should put down a marker for a point that is potentially controversial. We are aware that some people of unblemished character are much concerned that the burden of proof on the prosecution in confiscation proceedings against a convicted drug trafficker has been shifted from guilt beyond reasonable doubt to that of the balance of probabilities. That is a significant shift. They would argue that even in the context of Northern Ireland the fundamental human right of the presumption of innocence should prevail. That may present a moral question and it may present also a legal question. I do not wish to press the point too hard but I would mention that before very long it may well be the subject of comment and possibly censure in the Strasbourg court. However, to my own mind—not that my personal view is relevant—the need for this provision is of sufficient importance in the context of Northern Ireland to warrant overriding a fundamental human right of the individual living in a democratic society.

With those few comments I welcome the order on behalf of the Official Opposition in this House.

Lord Wallace of Saltaire

My Lords, I had not intended to intervene in the debate. My noble friend Lord Holme of Cheltenham, who normally speaks on Northern Ireland for the Liberal Democrats, was taken ill with 'flu last night and I therefore stand in his stead to welcome this order, which very much follows the lines which Liberal Democrats have supported in this House and in the other place in recent years. It is a useful consolidating measure and as such we all welcome it.

My concerns, so far as I have them, very much echo those of the noble Lord, Lord Prys-Davies, in terms of the burden of proof and the international aspect. It seems clear that what we now face in Northern Ireland, as we have faced in Italy for some time and as we appear to be facing in Bulgaria, Russia and elsewhere, is that peculiar mixture which is partly terrorist, partly criminal, partly drug trafficking and partly money laundering which overlaps criminal activities, political activities and financial fraud. In the nature of the case, that is rarely confined to one country. I remember a member of the Serious Fraud Office saying to me some years ago that there was no longer any such thing as domestic financial fraud—all financial fraud was, in the nature of the case, international. I therefore have a question for the Minister on Articles 42 and 43, which refer to the extraterritorial and international dimension. I wish to know whether they are strong enough as they stand, and how far they relate to co-operation, particularly with other European Governments under what is now Pillar 3 of the Maastricht Treaty, in terms of ensuring that we have full co-operation with other governments which often face similar concerns across Europe and beyond.

I am also a little concerned about shifting the burden of proof. Mention has already been made of a case in the High Court which may go further, in which the question of whether confiscated property had been clearly shown to have been accumulated in the course of crime or in other ways is being challenged. It seems to us that on civil liberties grounds—and even where terrorism in Northern Ireland is concerned—we must be careful before shifting the burden of proof from the criminal standard to something much more like the civil standard.

Having said that, I welcome the order. We give it our full support. Again, I apologise that my noble friend Lord Holme of Cheltenham is unable to be here this evening.

Baroness Denton of Wakefield

My Lords, I thank the noble Lords, Lord Prys-Davies and Lord Wallace of Saltaire, for their welcome for the order. It is important in building a peaceful future for Northern Ireland. Attention has rightly been drawn to the tightrope that needs to be walked in terms of protecting people's rights while ensuring that those rights are not taken away by terrorism.

We have always been fortunate in this House in that when absence is unavoidable members of the substitute bench, if I may put it that way, are welcome to our debates and are knowledgeable on the issues raised. However, I should like to send the noble Lord, Lord Holme of Cheltenham, the wishes of the whole House for a full and speedy recovery.

The noble Lord, Lord Prys-Davies, asked me to clarify whether the court could ask for confiscation if the prosecution did not. I can confirm that the court will have discretion to ask for confiscation if the prosecution does not do so.

Both noble Lords expressed concern on the question of balance. There is no intention to change the standard of proof in determining guilt for an offence. That remains the criminal standard. It has always been the case that the confiscation procedure should operate to the civil standard of proof. That has been the case since 1990. However, the assumptions that the court makes are rebuttable. If the defendant can prove that his property was legitimately paid for, the court may not make that assumption. I hope that that gives noble Lords some comfort.

Both noble Lords also referred to the necessity of working closely with other countries. The problems that we have experienced are not, unfortunately, unique to Northern Ireland. This problem has spread throughout the world. Like just about everything these days, the financing of terrorism in its various forms has global connotations. There is no such thing as isolation of activity.

The order makes provision for reciprocal arrangements with other countries for the enforcement of each other's restraint and confiscation orders, but any such activity involves two partners. The United Kingdom has ratified the 1988 United Nations Drugs Convention and the 1990 Council of Europe Confiscation Convention and has, I am pleased to say, concluded bilateral co-operation agreements with many countries, particularly those where the question of drugs is relevant, such as Holland. We are also concerned about the possible paths that criminals might take to the United States with which we also have a bilateral agreement. We continue our work to bring forward such agreements. We see evidence that people are moving towards signing such conventions and thus participating in that co-operation. Like both noble Lords, we believe that those provisions are important to the success not only of this order but of other such legislation throughout the United Kingdom. This is a high priority. We hope that in due course all the necessary signatures will be put to the conventions.

I thank the noble Lords for their support for the order and commend it to the House.

On Question, Motion agreed to.

Viscount Long

My Lords, I beg to move that the House do now adjourn during pleasure until 8.5 p.m.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.25 to 8.5 p.m.]