Clause 6 - Making of order
Proceeds of Crime Bill
8:55 am
Mr Dominic Grieve (Beaconsfield, Conservative)
I remember the hon. Gentleman's comment on Second Reading—I almost fell off the Bench. Having highlighted what I thought was a sensible area in which the Scots wished to retain their own practice, I found him both angry at the revelation and only too enthusiastic to jump on the bandwagon of mandatory confiscation.
Amendment No. 8 would give the court discretion not to proceed even if the two conditions in subsections (2) and (3) were satisfied. The discretion would be general and would mean that if the court did not want to take that route, it would not have to. That mirrors the existing Scottish provisions.
Amendment No. 14 would allow the court not to decide on the recoverable amount to make in an order, even if it believed that the defendant had benefited from his conduct. There is element of overlap between the discretions and I tabled the amendments so that we can examine each possibility, as well as considering them together.
Amendment No. 9 would allow the court not to make an order even if it decided on a recoverable amount.
Amendment No. 10 would allow the court to decide that a lesser sum than that which had been deemed to be recoverable should be paid. Again, that mirrors, to some extent, the current practice in Scotland.
In a nutshell, the purpose of the amendments is to remove or diminish what at present could be seen to be a mandatory and oppressive form of administrative diktat. Historically in England--I am not qualified to speak about Scots law, but I suspect from reading the Scottish provisions that the principles are identical--judicial discretion always applies to prevent injustice. The Government introduced the Human Rights Act, but are now busy criticising the judiciary for implementing it in the way that it would obviously be implemented--