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Clause 9 - Defendant's benefit

Proceeds of Crime Bill – in a Public Bill Committee at 12:00 pm on 20th November 2001.

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Question proposed, That the clause stand part of the Bill.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

Hon. Members will recall that clause 8 provides that the amount of a confiscation order is the amount of the defendant's benefit or the available amount, whichever is lower. Clause 9 explains how the defendant's benefit is decided. Subsection (2) provides that the court must take account of conduct and property obtained until the time that the court takes its decision. Subsections (3) and (4) are designed to avoid double counting the same conduct. Hon. Members will note that the court will now be required to deduct confiscation orders previously made against the same person in any part of the UK. The current legislation has developed piecemeal on this point, and we seek to rectify certain omissions.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

When I spoke to the Clerk this morning I was reassured that clause 9(2) did not mean that the court would take account of honestly gained assets. Will the Minister confirm that? Subsection (2) states:

``The court must—

(a) take account of conduct occurring up to the time it makes its decision''.

I assumed, perhaps wrongly, that that meant that the court must take account of conduct of a criminal nature that had occurred up to the time of making the order. Subsection (2)(b) states that the court must

``take account of property obtained up to that time.''

Similarly, I assumed that that meant property obtained as a result of criminal activity, rather than property that had been got hold of, purchased by or given to people in a totally legitimate and legal way. Will the Minister assure the Committee that the court will take into account criminal acquisitions, rather than totally innocent and above board acquisitions? If so, will he also say why clause 9 does not spell out the fact that the court should be taking into account criminal conduct and property obtained by criminal means?

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party 12:15 pm, 20th November 2001

Order. I invite the Minister to offer clarification if he wishes to—but with the caveat that many of the relevant issues will be dealt with under clause 11.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

When the Minister responds, will he be able to point to other legislation that has used the phrase ``general criminal conduct''? Rather like ``criminal lifestyle''—I do not want to reopen that debate now, as it would not be proper to do so—it strikes me as a slightly unusual phrase. I appreciate that the Minister may not be able to provide a precedent immediately, but it would be helpful to know where, if at all, that phrase has been used in other recent legislation. When my hon. Friend the Member for Beaconsfield and I first looked at the Bill, it struck us that it raised some of the same issues as ``criminal lifestyle''.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

It would perhaps be better to deal with that last question later. Bearing in mind your admonition in relation to clause 11, Mr. Gale, I shall answer the point made by the hon. Member for Spelthorne. Subsection (2)(b) must be read in the context of subsection (1), which relates to decisions on benefit from conduct. Clause 76(4) provides that

``A person benefits from conduct if he obtains property as a result of or in connection with the conduct.''

Therefore, the reference to property in clause 9(2)(b) must be read in that context.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Is the conduct to which clause 9(1) refers criminal conduct, or all types of conduct?

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

As I understand it, it deals with criminal conduct, as does clause 76(4).

Photo of David Wilshire David Wilshire Conservative, Spelthorne

If that is so, why does it not refer to ``criminal conduct''.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

Perhaps because it is assumed that, as we are dealing with confiscation of the proceeds of crime, the conduct will be criminal.

Photo of Ian Lucas Ian Lucas Labour, Wrexham

Clause 9(1) begins:

``If the court is proceeding under section 6''.

It clearly relates to the procedure following criminal conviction.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I am grateful to my hon. Friend for that additional clarification. I can tell the hon. Member for Surrey Heath that I am not aware of other legislation that refers to ``general criminal conduct''.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

My hon. Friend the Member for Surrey Heath has picked up on an important point, which the Minister may want to consider in the context of the clarity of the Bill. I have often found this Bill difficult to follow. I realised that it would be a complex piece of legislation, but it is not easy reading. It contains constant reference back, and constant tendencies to use terms such as ``conduct''. I, too, ascertained that that term refers back to the ``general criminal conduct'' referred to in clause 6(4)(b). However, such references are not often apparent. I am sure that partly draftsmen have special skills, one of which is not to repeat what is unnecessary—surplusage. However, sometimes the Bill is difficult to follow. Clearly, the clause should be aimed only at criminal conduct, but when there is a move away from the specific offence to something wider, it is important to have precision.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I appreciate what the hon. Gentleman says. If he, as a distinguished practising lawyer, has a problem understanding an aspect of the Bill, he will understand how those of us who are not lawyers share his difficulty—even with excellent briefing. However, I can underline what my hon. Friend the Member for Wrexham said in relation to the point made by the hon. Member for Spelthorne. Clause 9(2) must be read in the context of clause 9(1), which refers back to clause 6. Therefore, we are talking about criminal conduct.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

It is important to have clarity, and if that means repetition, that is beneficial and sensible. The phrase ``general criminal conduct'' appears again in subsection (3) and clause 11, so it is not as though it has been accepted and put to bed. It reappears throughout the Bill, and it is rather odd that it is missing here. For the sake of clarity and the avoidance of doubt, it would be helpful if it were repeated.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I understand the hon. Gentleman's point, and I shall take it on board. As was pointed out earlier, clause 7 does not refer to clauses 15 and 16, whereas clauses 15 and 16 refer to clause 7. I understand that the legal draftsman said that it was not strictly necessary to include such a reference. However, I agree that even though it may not be strictly necessary, it might make the matter clearer, and for the avoidance of doubt, we shall consider the idea.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I should add that it would be a good idea to insert the word ``illegally'' into the reference to property or property obtained by criminal conduct, because that goes to the heart of what we are trying to do. Are we suggesting that it is right to take away all property from criminals in punishment for their crimes, or are we specifically trying to take away property that arises from criminal activity? I should be grateful for some clarification from the Minister on that point. Are we punishing criminals by taking away property irrespective of how it was obtained, or only property that was obtained exclusively illegally? That should be made clear.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I understand the hon. Gentleman's point. We all agree that it is implicit in the Bill that the reference is to property that has bene illegally obtained. I believe that he is saying that it might be better to make that explicit in the Bill. We shall consider the idea. It may not be strictly necessary to do that, but it might be for the avoidance of doubt. I would not be unhappy if at a subsequent stage amendments that clarified that fact were made.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

I am heartened by the suggestion by the hon. Member for Beaconsfield that he finds this difficult to follow, because I thought that it was just me who did. At least we agree on that. I should like clarification from the Minister on how someone's ill-gotten gains and legitimate income will be dealt with. I want to avoid circumstances in which people can admit that they have committed and been found guilty of offences, and then say that all the money that they have obtained from them has been spent on slow cars and fast women—or slow horses and fast women; whatever is the chosen poison—and all the money that they have left was obtained entirely legitimately, and therefore cannot be touched. That would be completely contrary to the thrust of the Bill as I understand it, and I should be grateful if the Minister would make it clear that someone's legitimately obtained assets are none the less available to be partially or wholly taken to pay the costs of crime.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

If someone has used the proceeds of crime to invest and has built up a substantial sum in excess of the amount that was illegally obtained, is it not important to make clear the position of that element of the money and assets?

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

That is vital. It is crucial that that be made explicit, and it be put beyond the ability of the courts to reinterpret Parliament's intention. It should be absolutely explicit that any assets that someone has are liable to be seized to repay the amount from which they are assessed as having benefited through crime.

Photo of Boris Johnson Boris Johnson Conservative, Henley

A split seems to be opening up in the Labour ranks. I distinctly heard the Minister say that there was no question of taking away property except in so far as it had been illegally obtained. However, if I understand the hon. Member for Glasgow, Pollok correctly, he is saying that he wants everything that a criminal has to be up for grabs, and that all assets are fungible and may be taken away. He would not support the insertion of the word ``illegally'' in the reference to property in subsection (2)(b).

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

I thank the hon. Member for Henley—and for The Spectator, South—(Mr. Johnson) for raising that issue. I may be expressing myself poorly, but let us suppose that someone who had obtained assets as a result of criminal conduct argued that they were no longer available because they had been spent, and that the assets that were available had been obtained legitimately. That should not be a reason for someone to be allowed to go scot-free without paying any compensation. It has been said that there is a split between our Front and Back Benches. Well, there are occasions when Back Benchers are more in line with the mood of the country than some elements of the Mr. Softy tendency. On occasions, that tendency has been displayed in another place—but that description does not apply to the Ministers in this Committee.

I seek clarification from the Minister about the length of time. I am unclear about why reference is made in some parts of the Bill to a period of six years, as under clause 11. Does that apply to clause 9, or are someone's available assets counted back to the beginning of time or, as in the case of the hon. Member for Beaconsfield, to the second or third generation, when his family were stealing cattle and sheep? I was under the impression that he claimed Scottish ancestry. He said in his maiden speech that his relatives lived in Roxburghshire 400 years ago. He then went on:

``by the middle of the 18th century, my family had graduated from being cattle and sheep thieves''—[Official Report, 21 May 1997; Vol. 294, c. 789.]

If he is now saying that his relatives were Scottish cattle and sheep thieves who were stealing from the English, that may put a different light on the matter. It may be less of an offence than I had originally thought; it would be helpful if he clarified it. I was under the impression that, as a good lawyer, he was preying on his neighbours, which is certainly worthy of contempt.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

Again, we have had an interesting debate. I accept that it is unlikely, but let us imagine that the hon. Member for Beaconsfield were convicted for being involved in criminal activities. If a confiscation order were taken out against him, it would not be appropriate to take account of the benefits that his long-deceased ancestors may have obtained from their alleged stealing of sheep and cattle. I hope that I have reassured the hon. Gentleman, if not my hon. Friend the Member for Glasgow, Pollok.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I am small fry compared with my right hon. Friend the Member for Devizes (Mr. Ancram), whose family made a huge fortune in the 16th century. They became such important thieves that they eventually received a peerage, which is fairly standard practice. However, my right hon. Friend would not be able to lay his hands on those assets now.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

The right hon. Member for Devizes used to be my pair, and I know all about his background. Devizes is the third seat that he has represented in Parliament. No doubt it will be the last.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. The Chair is unaware of the existence of pairing.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

Yes, and so are the Whips, at the moment.

I assure the hon. Member for Henley that there is no split between my hon. Friend the Member for Glasgow, Pollok and me on the matter. We are as one on the Bill, as we are on many matters.

Photo of Boris Johnson Boris Johnson Conservative, Henley 12:30 pm, 20th November 2001

I do not understand how that can be the case, because the hon. Member for Glasgow, Pollok has already called the Minister Mr. Softy, if I understood him correctly. I direct the Minister's mind like a laser towards the hon. Gentleman's point. He believes that all assets owned by a criminal should be recoverable. However, the Minister believes that only assets that are the proceeds of crime should be recoverable. If a criminal can demonstrate that he has assets that are honestly gotten, should those assets not be recoverable?

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I am about to address that point. I must do so quickly, before this becomes associated with the alleged split between the Chancellor and the Prime Minister, and who is on which side of that argument.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. Happily, those issues are definitely out of order.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

In every way, Mr. Gale.

I can tell the hon. Member for Henley and my hon. Friend the Member for Glasgow, Pollok that it does not matter if the criminal has spent the illegitimate money because even if it has been spent, it will still be counted for the purpose of calculating the benefit from criminal conduct. When calculating the available amount, we will examine all assets, whether they are legitimate or not.

As for the six-year period, when a person has a criminal lifestyle, we will examine his benefit from general criminal conduct. That represents all conduct, however far back it goes. Assumptions help in that assessment, but they are restricted to the six-year period.

Photo of Ms Helen Clark Ms Helen Clark Labour, Peterborough

Why was the six-year period chosen?

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. It is an excellent question—and it can be addressed when we reach clause 11.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

That is what I was about to say, Mr. Gale. We shall consider that question when we reach clause 11, which I am thankful to say is being dealt with by my hon. Friend the Under-Secretary.

We could insert the word ``criminal'' before the word ``conduct'' in clause 9, because it is about the calculation of the benefit rather than the available amount. We may examine that idea. However, I hope that, following my explanations, the Committee will agree that clause 9 should stand part of the Bill.

Question put and agreed to.

Clause 9 ordered to stand part of the Bill.