Clause 94 - Making of order
Proceeds of Crime Bill
8:55 am
Mr George Foulkes (Minister of State, Scottish Office; Carrick, Cumnock and Doon Valley, Labour/Co-operative)
The amendments before us are the first of a large number of amendments that we have tabled to make the confiscation regime in Scotland mandatory on the courts in the same way as the regime in England and Wales under part 2 of the Bill. My colleagues will recall that, under the Proceeds of Crime (Scotland) Act 1995, the courts in Scotland have the discretion, first, whether to employ the confiscation order, secondly, whether the confiscation order should be for the total amount of the accused's benefit and, thirdly, whether to make an assumption about the benefit from general criminal conduct.
As I have said before in the Committee, the judiciary in Scotland has always exercised its discretion to employ confiscation orders. The Government have no criticism of the Scottish judiciary in that respect. Nevertheless, several of my hon. Friends and others expressed concern, both on Second Reading and elsewhere, about the discrepancy between the mandatory regime for England and Wales under part 2 of the Bill and for Northern Ireland under part 4, and the discretionary regime in respect of Scotland under part 3.
I have had detailed discussions with my colleagues in the Scottish Executive, who are responsible for such matters in Scotland. Both Jim Wallace and the Lord Advocate shared my view and that of many of my colleagues that it was essential for the confiscation arrangements for Scotland to be sufficiently robust, and for confiscation to be pursued in all appropriate cases. We also want to ensure that there are no gaps or loopholes between the regimes north and south of the border through which the criminal can avoid having a confiscation order imposed on him.