I beg to move Amendment No. 39, in page 3, line 20, at end insert—

'and the court considers that there is no real risk of injustice from it so proceeding'.

With this it will be convenient to discuss the following amendments: No. 41, in Clause 8, page 4, line 20, at end insert—

'(1A) But the defendant shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.

Government amendments Nos. 80, 190 to 192, 85 and 86.

Amendment No. 204, in clause 94, page 56, line 11, leave out "three" and insert "four".

Amendment No. 146, in page 56, line 12, at end insert—

'and the court considers that there is no real risk of injustice from it so proceeding'.

Amendment No. 205, in page 56, line 23, at end insert—

'(4A) The fourth condition is that, after considering the evidence contained in a statement of information prepared by the prosecutor under section 104, the court believes that it is appropriate for it to act under this section.'.

Government amendment No. 230.

Amendment No. 206, in page 56, line 41, at end insert—

'(8A) In making representations to the court under subsection (8), any person whom the court thinks is likely to be affected shall be entitled to appear before the court.'.

Amendment No. 150, in clause 96, page 57, line 16, at end insert—

'(1A) But the accused shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.

Government amendment No. 290.

Amendment No. 212, in clause 104, page 63, line 11, leave out from first "the" to end of line 12 and insert—

'prosecutor asks the court to act under section 94, the prosecutor shall, within such period as the court may specify, give the court a statement of information'.

Government amendment No. 255.

Amendment No. 213, in page 63, line 31, leave out "If the prosecutor gives" and insert "After giving".

Amendment No. 214, in page 63, line 32, leave out "he" and insert "the prosecutor".

Government amendment No. 257.

Amendment No. 215, in clause 105, page 63, line 36, leave out from beginning to "on" in line 37 and insert—

'If the court is acting under section 94 and it is satisfied that the prosecutor has served a copy of the statement of information'.

Government amendments Nos. 258 to 260.

Amendment No. 216, in clause 109, page 67, line 37, at end insert—

'(bb) the prosecutor has evidence which was not available to him when the court decided the amount of the accused's benefit for the purposes of the order,'.

Government amendments Nos. 261, 231, 262 and 263.

Amendment No. 217, in clause 118, page 73, line 16, at end insert—

'(cb) a decision of the court not to act under section 94;".'.

Amendment No. 218, in page 73, line 17, at end insert—

'(3A) In subsection (2), after paragraph (v) insert—

(vi) under paragraph (cb), that the decision not to act under section 94 was inappropriate".'.

Amendment No. 219, in page 73, line 28, at end insert—

'(cb) a decision of the court not to act under section 94;".'.

Amendment No. 220, in page 73, line 29, at end insert—

'(7A) In subsection (4A) after paragraph (b)(v) insert—

"(vi) under paragraph (cb), that the decision not to act under section 94 was inappropriate.".'.

Government amendments Nos. 269 to 275, 233, 276 to 278, 234, 280, 283 and 284.

Amendment No. 147, in clause 162, page 96, line 38, at end insert—

'and the court considers that there is no real risk of injustice from it so proceeding'.

Amendment No. 151, in clause 164, page 97, line 37, at end insert—

'(1A) But the defendant shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.

Government amendments Nos. 178, 193 to 195, 183, 184, 100 and 187 to 189.

Were we to attempt to consider each Amendment individually in the time available before the guillotine falls on our proceedings, I fear that we might get into difficulty. Therefore, I intend to confine my remarks to amendments Nos. 39 and 41, which are of considerable importance. However, they are very different and there is no immediate link between them, so they should be discussed separately.

I start with amendment No. 39. As we discussed at length in Committee, Clause 6 is the first relating to confiscation orders, which we have debated in respect of new clause 2. On making an order, clause 6 baldly states:

"The Crown Court must proceed under this section if the following two conditions are satisfied."

The first is that a person has been

"convicted of an offence or offences in proceedings before the Crown Court" and is

"committed to the Crown Court for sentence" or

"committed to the Crown Court in respect of an offence or offences under section 70".

The second is that

"the prosecutor or the Director asks the court to proceed" or the court

"believes it is appropriate for it to do so."

On Second Reading, my hon. Friend Mr. Letwin made the point that the process of confiscation may be initiated although a person may have committed only three exceptionally minor offences for gain over the previous six years. That drew a few exclamations from those on the Government Benches, but it was not challenged. Indeed, it is quite clear.

The point was also made on Second Reading that the process may be initiated by a prosecutor when a person has committed offences amounting, perhaps, to no more than having no rear light on their vehicle. As the law will stand, those are offences for gain, because there is undoubtedly a pecuniary advantage in not having or replacing a rear light. As we discussed extensively in Committee, by such small matters a person may be moved into a procedure that the Minister has often acknowledged is draconian. Indeed, it is intended that it should be draconian towards those from whom assets are to be confiscated.

In Committee, we suggested that it might be better if "must" were replaced by "may" to allow some judicial discretion as to whether the process should be initiated. If a prosecutor says that he wants to embark on the process, a judge presented with a convicted criminal may simply reply at the outset, "What are this person's assets? Please tell me what you suspect. The offences appear to be of the utmost triviality." The judge could prevent the process from being initiated if he thinks that an injustice would result. Indeed, such a form of words existed for the Scottish provisions until they were reworded at the request, I am told, of Scottish Labour Back Benchers. The change that we discussed earlier therefore came about.

I acknowledge that the Government have a point about changing "must" to "may" in respect of the signal that might be sent out as to their resolution in dealing with criminals. Nevertheless, having thought about the matter following our debates in Committee, I still believe, as does the Law Society and a number of organisations, that a safeguard to prevent the procedure from being embarked on would be useful. That is why amendment No. 39 states that the other factor that may be taken into account when the court proceeds is whether

"the court considers that there is no real risk of injustice from it so proceeding".

Those words have been selected advisedly, because, as the Minister knows, the report of the Joint Committee on Human Rights spells out specifically that the expression

"a real risk of injustice" is the acid test on which the court would determine the compatibility of the human rights provisions. Indeed, the Committee thinks the confiscation provisions compatible with the Human Rights Act 1998, but suggests a change in the wording, which, unfortunately, we shall not have time to discuss.

I ask hon. Members to consider whether the change would provide the residual safeguard to prevent time and money from being lost and injustice from occurring while in no way detracting from the force of the legislation. I commend the amendment to the House and say bluntly to the Minister that it would create not some loophole through which a criminal could escape the confiscation of his assets, but prevent time wasting in the judicial process. A judge considering what is being sought could say that injustice would result from the court and the prosecutor embarking on an onerous procedure that places great burdens on the accused.

Let me put one or two possibilities to the Minister. Ending up with defendants who fall ill, experience memory loss or suffer brain damage is not unheard of. Indeed, I have represented a person on serious criminal charges who was undoubtedly suffering from mental incapacity resulting from injury. In precisely such a case, the judge might say, "How on earth can this individual rebut the assumptions made against him when the burden is placed on him?" That is what the full thrust of the procedures is all about.

In such circumstances, the power of the legislation would be enhanced by allowing a judge to say at the outset, "This procedure is likely to be unfair and to lead to serious risk of injustice." That would show that Parliament has taken on board the possibility that injustice may result.

Is it not right that the judge would have some discretion to prevent such proceedings from commencing? The second condition includes the words

"the court believes it is appropriate for it" to carry on.

No, the hon. Gentleman is mistaken. Were the matter left to the court, it would have that discretion, but if the prosecutor or the director made such a request of the court, it would not. I appreciate his point, but the second condition says

"or the court believes it is appropriate".

It does not use the word "and".

I think I said that the judge has some discretion and that the provision includes the power for the court to rule that it is not appropriate to commence. The only point that the Amendment attacks is the discretion of the prosecutor or the director also to ask the court to proceed. It contemplates the director asking the court to proceed even if he thinks a serious risk of injustice is present. Surely that is counter-intuitive.

I hope that, in my time as a prosecutor, I tried to act fairly, but the duties of a prosecutor or a director and those of the judiciary are somewhat different. I think most people hope that they have a fair prosecutor, but I trust that they look to the impartiality and good sense of the judiciary to prevent injustice. I would normally look to the powers of judges in that regard.

Of course, such powers exist in a multiplicity of areas in judicial proceedings. In criminal proceedings, judges can stop cases. They can direct juries to return verdicts of not guilty. Those are substantial powers, which I have watched being invoked. It seems to me that, in such circumstances, giving the judiciary that power in no way detracts from the thrust of the legislation.

Amendment No. 41 deals with a completely different issue, which we did not tackle in Committee and to which I was oblivious at that stage. The amendment would make confiscation impossible if the benefit involved had already been forfeited. I am grateful to a professor of academic law at the University of Cardiff for bringing the matter to my attention, albeit too late for it to be considered in Committee.

A recent House of Lords decision—in the case of R v. Smith (David Cadman) 2001—had a surprising result. Let us suppose that cigarettes worth £200,000 are imported illegally into the United Kingdom and are seized at the port concerned. Let us suppose that those involved are forced to pay the duty, and that confiscation proceedings are then brought and a further £200,000 is demanded—as it would be under the Bill, as proceeds of crime.

With all due respect to their lordships, I find that a rather surprising concept. It is, in fact, a process of double recovery. I do not understand how the second amount can constitute the proceeds of crime when the proceeds of crime have already been confiscated, and I do not understand how, in that case, the amount can be recovered. It seems to me that a measure that, it should be remembered, related to the precise issue of smuggling rather than the wider issue of criminality could lead to unfairness.

The House and the Minister may, of course, wish such unfairness to continue. Let me point out to the Minister, however, that as a result of the Bill it may not just continue but be enormously widened. In many instances, people whose drugs worth £2 million are confiscated will be told "The proceeds of the crime are also worth £2 million. Pay up". Those amounts will relate to a single offence.

I too have read the paper by Professor Peter Alldridge of Cardiff university, and I find the arguments very persuasive. During the Committee's consideration of Clause 8, did the Government come up with their own definition of "the defendant's benefit"?

There was undoubtedly discussion of what constituted the benefit, but it was based on the existing rules. There was no discussion of the impact of the court decision to which I have referred. It was not mentioned at any point. In fact, I must plead guilty to complete ignorance of not just its impact, but the consequence of widening the principle contained in it to the much wider issue of proceeds of crime generally.

I found the arguments of the Judicial Committee surprising, and I feel that Parliament should consider whether this is what it really intends. If we follow such a route, the matter may well not stop at the Judicial Committee; I suspect that it will end up in Strasbourg. Surely saying that, although the proceeds of a crime have already been confiscated under another provision, they will be confiscated again under the Proceeds of Crime Bill is nonsensical. I hope that the Minister will use the few minutes that remain to tell us whether that curiosity will be continued.

Of necessity, I shall be brief.

A number of amendments have been tabled by Liberal Democrats, including me. Under Amendment No. 216, before seeking reconsideration of the benefits, the prosecutor must have new evidence that was not available when the court decided the amount of the accused's benefit for the purposes of a confiscation order. Such a procedure should be used in appropriate circumstances, and the amendment would avoid ambiguity.

Amendment No. 205 would ensure that the statement of information became an integral part of the assessment of the case, rather than something produced after the court had decided whether or not to proceed.

We agree with Mr. Grieve on amendment No. 39. It, along with the latter part of our amendment No. 205, would reintroduce to the courts some degree of discretion in the determination of the appropriateness of proceeding.

Mr. Redwood spoke of legislating by soundbite. I fear that our desperate drive to emasculate the courts and fetter their discretion will produce bad legislation. The proposals in amendments Nos. 39 and 205 are modest, and even at this late stage I ask the Minister to reconsider.

I want to speak briefly on Amendment No. 41, and to support my hon. Friend Mr. Grieve.

My hon. Friend referred to the case law in Smith. The question of law certified by the Court of Appeal as being of general public importance for the House of Lords to consider was whether an importer of uncustomed goods who intended not to enter them for customs purposes and not pay any duty on them derived a benefit under section 74 of the Criminal Justice Act 1988 through not paying the required duty at the point of importation, where the goods were forfeited by Customs following importation, before their value could be realised by the importer.

The House of Lords said yes. There was only one speech, delivered by Lord Rodger of Earlsferry, a Scots judge. It was noteworthy for its commitment to a harsh approach to the confiscation legislation. He held that the subsequent fate of the cigarettes was irrelevant to the confiscation order. If they had been lost, liability to pay duty would remain. That they were seized was likewise irrelevant.

Are the Government aware of that case, and are they passing legislation deliberately in the knowledge of that decision?

The list of amendments looks formidable, but many are technical. A number are drafting amendments, and a number bring Scotland into line with England and Wales. Amendments Nos. 39, 146 and 147, however, would require the court not to proceed with a confiscation hearing if it considered that there would be a real risk of injustice if it did so. I am afraid that the amendments run counter to the philosophy underlying the Bill, which is that recovering the proceeds of crime never involves any injustice.

The Bill specifically makes provision for the court not to make the statutory assumptions, but that is a different matter. Nobody is disputing that making the assumptions may occasionally present a serious risk of injustice and the Bill provides for that. That is not the same thing as a blanket provision that suggests that it may be unjust to proceed at all. If the purpose of the amendments is to suggest that recovering criminal proceeds is inherently unjust, I am afraid that I and my colleagues cannot share that viewpoint. I hope that the hon. Gentleman will withdraw the Amendment.

Amendments Nos. 41, 150 and 151 would require the court to investigate whether any benefit of the defendant's had been recovered by means of any other power or enactment. We understand the spirit behind the amendments but, at the same time, we do not think that the approach is correct. The thinking underlying the amendments is clearly that the same benefit should not be confiscated twice. In fact, the Bill already makes provision to prevent this from happening at clauses 9(3), 97(3) and 165(3). However, I invite Opposition Members to send us details of the matters they have raised. We will consider them and see if any changes would be appropriate in the light of new evidence or circumstances. I hope that they will find that helpful.

Amendments Nos. 80, 269 and 178 are straightforward. They give the prosecutor in all three jurisdictions, and the director in the case of England and Wales, the right to be heard at all applications for time to pay or an extension of time to pay a confiscation order. That seems to us sensible, because there should be a counterbalance to the submissions of defendants who will often try to avoid payment by stalling for time.

Amendments Nos. 204 and 205 are unnecessary. The prosecutor's statement that sets out the Crown's calculation of an accused's proceeds of crime and of his assets will always be served upon a convicted person and lodged with the court. Accordingly, the court will always have before it a prosecutor's statement. Amendments Nos. 212 and 215 are consequential and, therefore, equally unnecessary.

The remaining Government amendments are either drafting amendments or bring Scotland into line with England and Wales. I will not cover them in any great detail.

Amendment No. 216 relates to proceedings held to consider increasing a confiscation order. It would prevent the prosecutor from deploying evidence at a hearing of this kind if it has been made available to the prosecutor when the confiscation order was made. It is rather odd that this proposal differs from the other reconsideration clauses in allowing the prosecutor to use evidence that he or she has not previously deployed. I agree that Opposition Members have a point with this amendment. I am glad to be helpful to Liberal Democrats—not often, but occasionally.

I am reluctant, however, to bring the Clause into line with the others until I am clear why it is being treated differently. There may be good reason for the difference, but it is not immediately obvious. However, on the understanding that I am willing to give the point further consideration and that we will return to the House when matters have been clarified further, l invite hon. Members not to press the amendment.

I hope that I have answered the points in relation to amendments Nos. 39 and 41. I have resisted amendment No. 39, but I have been helpful on amendment No. 41. I hope that, on balance, the hon. Member for Beaconsfield will not press any of his amendments.

With respect to Amendment No. 41, I will seek to persuade the Minister that the safeguards do not exist in the Bill, because Professor Alldridge has persuaded me that they do not in the particular circumstances of prior forfeiture, as opposed to other confiscation.

There is an issue of principle with regard to amendment No. 39 and I will seek to put it to the vote. We are proposing a sensible judicial safeguard that will be of great benefit to the Bill and to the reputation of the law that this House passes.

Question put, That the amendment be made:—

The House divided: Ayes 158, Noes 260.

Question accordingly negatived.

It being more than three and a half hours after the commencement of proceedings on consideration of the Bill, Mr. Deputy Speaker, pursuant to Order [this day], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.