Clause 8 - Recoverable amount
Proceeds of Crime Bill
11:45 am
Mr David Wilshire (Spelthorne, Conservative)
I am worried about a couple of issues. Some flexibility that is not aimed at assisting the convicted person could be useful. Subsection (1) states:
``The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned.''
In most cases, that is correct. However, in other cases it could prove utterly impossible to be 100 per cent. certain that the amount was equal to the benefit. There could be a huge dispute about whether it was equal. It may benefit the Bill for the courts to have some discretion. I understand why the amount should not be more than equal to the benefit, and that we should not be taking more than the defendant's benefit as a result of the crime for which he is being convicted. It may assist the court, however, to say that it the amount can either be equal to the amount of benefit or a lesser figure. That is for the benefit not of the convicted person but of the court, because it could recover an amount without there being a protracted dispute about what ``equal to'' might mean. There could well be an argument on appeal when it could be shown that the amount was not equal to the benefit so the order should be declared invalid. I can envisage such a thought process. Will the Minister consider having flexibility under subsection (1), whereby the court could say that the amount would not have to be more than the benefit, but could be less?
Subsection (2) states:
``But if the defendant shows that the available amount is less than that benefit the recoverable amount is . . . the available amount.
It would be worth exploring the possibility of having flexibility in such circumstances, too. It does not take too much imagination to know that someone in such a position will do his or her level best to make sure that the available amount is as small as possible. However clever the lawyers are, however efficient the court is and however many accountants pore over such information, there will still be even cleverer lawyers and accountants who will reduce the maximum amount to a much smaller available amount.
I fully accept that it is wrong that we should seek to take away from people—even criminals—property or assets that they have acquired legally and legitimately, but I do not understand why a convicted criminal who has managed to spirit away some of the proceeds of crime should not at a later date be held to account for the money that has gone walkabout, by targeting the assets that he subsequently acquires legitimately. Someone who has spirited away £2 million or £3 million of the amount that should be paid may suddenly win a £15 million jackpot on the lottery. That person will have avoided paying £2 million or £3 million of the ill-gotten gains of crime just because he managed to reduce the available amount, so I do not understand why he should not subsequently be required to repay the proceeds of crime when he suddenly finds himself in pocket. That does not fly in the face of my understanding of justice. Under subsection (2), it may benefit the court to say that the amount recoverable is either that or a sum that it may decide. The arrangement would then be flexible and could take account of what might happen subsequently.