Clause 8 - Recoverable amount
Proceeds of Crime Bill
11:45 am
Mr George Foulkes (Minister of State, Scottish Office; Carrick, Cumnock and Doon Valley, Labour/Co-operative)
I understand the point that my hon. Friend is making, and I shall deal with it later in our debate.
The court will calculate the available amount only if asked to do so by the defendant. The onus rests on the defendant to prove that the available amount is lower than the benefit. If that was not the case, the prosecutor would have to prove that there was sufficient property available to satisfy the confiscation order, which is a tall order in many cases, and virtually impossible when the defendant has hidden assets.
There is a discretion, however, in subsection (3) for the court to make any necessary adjustment to the recoverable amount to take account of claims by victims against the defendant in respect of the conduct concerned. That is consistent with the court's powers to have regard to such claims when making a confiscation order under clause 6(6).