Clause 76 - Conduct and benefit
Proceeds of Crime Bill
4:30 pm
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
It is good to see you in the Chair, Mr. O'Brien. I am sure that you have had withdrawal symptoms from our earlier proceedings and are pleased to be back.
The hon. Member for Lewes (Norman Baker) raised an important point. The issue should be announced with some retrospection. We must ensure that it is understood in the Bill and he may then, if he wishes, question the matter. The amendment would prevent the court from confiscating the benefits of general criminal conduct that took place before the Bill was enacted. He wants to explore the retrospective effect of part 2. To give some background, subsection (2) is based on the Drug Trafficking Act 1994. Much of that territory will be addressed in the order that commences the legislation and is not set out in detail in the Bill.
Before I turn specifically to the amendment, it may be helpful to explain how we intend to apply the relevant provisions. Article 7(1) of the European convention on human rights prohibits the imposition of a heavier penalty than the one that applied at the time when the offence was committed. That raises the question of what the heavier penalty is being applied to. The answer—which is reflected in the Strasbourg court's jurisprudence—is the offences for which the offender is being sentenced or otherwise dealt with in the present proceedings. The underlying principle of article 7 is, as the hon. Gentleman said, that an offender must know when he commits an offence what the consequences will be.
Bearing that principle in mind, we intend to provide that a confiscation order can be imposed under part 2 only when all offences that are the subject of the present proceedings have been committed after the Bill comes into force. That will include the triggering offences that determine a criminal lifestyle under clause 75(3)(a) and (b). The existing legislation will apply to offences committed before the Bill has been enacted. However, once that criterion is satisfied—that is, when the offences are committed after
enactment—a confiscation order can be imposed in respect of the benefit from conduct, however far back that benefit was derived.
That is fully compatible with the Strasbourg court's decision in the case of Ronald J. M. Taylor to uphold the use of assumptions. The court ruled that, when Taylor committed offences after the Drug Trafficking Offences Act 1986 came into force, he was aware that he was liable to a confiscation order that could have concerned earlier proceeds. As a result, the Commission considered that there had been no violation of article 7 of the European convention on human rights.
Confusion occasionally arises in this context. The assumptions relate to property passing through the defendant's hands at any time after six years before the commencement of proceedings, and before then if the property is still held. The assumptions will go back before the commencement of part 2. However, the confiscation order in respect of which they are made will be imposed for offences committed solely after the commencement.
The amendment would have a very harmful effect and would row back from existing legislation, which is consistent with the convention and has been tested against it. It would mean that everybody who was proceeded against under the Bill would receive an amnesty for any benefit derived from conduct before commencement—there would be no confiscation for any conduct before then. Practically, it would make the legislation inoperable. For example, the assumptions as currently drafted would be meaningless. In the week after commencement, they would read as if the defendant could be assumed to have received property from criminal conduct six years ago after commencement. That is impossible. Leaving that aside, the prosecutor and director would have the impossible task of proving whether conduct fell just before, or just after, commencement. He would have not only to prove his case but to show at what time the defendant derived the benefits of the proceeds of crime.
All offences that are taken into account will be after commencement. For example, when we track back for multiple offences, they must all have occurred after commencement. We will not be able to go back and count other offences that were committed previously. The commencement will be the trigger. The only retrospection will be the assumptions of the gain. That has been tested under the convention and does not contravene it in any way. I ask the hon. Member for Lewes to consider the consequences of the amendment.