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Clause 20 - No order made: reconsideration of case

Proceeds of Crime Bill – in a Public Bill Committee at 10:30 am on 27th November 2001.

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Photo of Annette Brooke Annette Brooke Opposition Whip (Commons) 10:30 am, 27th November 2001

I beg to move amendment No. 63, in page 11, line 17, after first `the', insert `investigating agencies or'.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

With this it will be convenient to take the following amendments: No. 64, in clause 21, page 12, line 37, leave out from `Director' to `when' and insert

`or investigating agencies have evidence which was not available to them'.

No. 65, in clause 21, page 13, line 4, after first `the', insert `investigating agencies or'.

No. 106, in clause 90, page 54, line 22, at end insert—

`(2A) An investigating agency is any public authority within the meaning of section 6 of the Human Rights Act 1998 (c. 42) which conducts a criminal investigation within the meaning of subsection (2).'.

Photo of Annette Brooke Annette Brooke Opposition Whip (Commons)

I have just stepped in to move the amendment on behalf of my hon. Friend the Member for Lewes (Norman Baker). We consider that it would strengthen the clause and make the final outcome clear. I should be grateful if the Minister would consider it seriously.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Amendment No. 63 would prevent clause 20 from being used when the investigating agencies, as defined under amendment No. 106, had evidence relevant to the confiscation proceedings that was not made available to the prosecutor at the original proceedings. Amendments Nos. 64 and 65 would do precisely the same in respect of clause 21, except that that clause covers evidence that was not available to the director as well as evidence that was not available to the prosecutor. Amendment No. 106 would define what constitutes an investigating agency.

Under the existing law, the criterion for the operation of such powers is whether there was evidence that was not available to prosecutor at the time of the original proceedings. It does not matter whether the investigating agency concerned had withheld evidence from the prosecutor at the time for whatever reason.

I cannot think of any reason why an investigating agency should deliberately wish to withhold evidence from the prosecutor or the director in order to prevent a confiscation order from being made. By its nature, an investigating agency will want to ensure not only that the defendant is convicted of his crimes but that all his assets acquired from crime are taken away from him at the same time.

On rare occasions, there may be cases when, through incompetence, evidence may not have been brought to the prosecutor's attention, but that is a different matter. It is not possible to legislate for incompetence. In any event, there must still be a strong case for arguing that a convicted person should not benefit from his crimes simply because the investigating authority was inefficient or incompetent.

Photo of Annette Brooke Annette Brooke Opposition Whip (Commons)

I said initially that the amendment would strengthen the Bill. The Minister's words have confirmed that. It would not undermine the Bill. I am a little perplexed that he will not consider inserting the extra words.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The amendments would mean that where evidence has been withheld for whatever reason, the course cannot be followed. In circumstances in which evidence has been deliberately withheld—although I cannot envisage what those circumstances might be—it would also prevent compensation from being pursued where for reasons of oversight, inefficiency, or incompetence, evidence had not been disclosed to the prosecutor.

The hon. Lady may say that the amendments would effectively strengthen the clause, but that is a case that she will have to make. The consequence would be that, in such circumstances, confiscation would not be possible, and that is the reason for rejecting the amendments.

Under clauses 20 and 21, the court is not under any obligation to make a confiscation order, even if the prosecutor or the director produces evidence that should have been heard the first time round. Opposition Members have spoken on previous occasions about giving the court the discretion to exercise its judgment. This is precisely the sort of case when the court would want to consider whether it was fair to make an order. The amendments would deprive the court of the opportunity to do that, and for those reasons, I ask the Committee to reject them.

Photo of Annette Brooke Annette Brooke Opposition Whip (Commons)

Although I see the matter in slightly different terms from the Minister, I bow to his reassurances and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 84, in page 11, line 28, leave out subsection (3)(a).

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

With this it will be convenient to take the following amendments: No. 85, in page 11, line 29, leave out `which constitutes offences.'.

No. 89, in clause 21, page 13, line 23, leave out subsection (7)(a).

No. 90, in clause 21, page 13, line 24, leave out `which constitutes offences'.

No. 92, in clause 22, page 14, line 30, leave out `which constitutes offences'.

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

These are probing amendments, designed to elucidate what is intended in subsection (3). The clause concerns the reconsideration of a case in which no order has been made. This situation occurs when the director or prosecutor applies to the Crown court to reconsider the evidence and after considering that evidence believes that it is appropriate to proceed. Subsection (2) states:

``If this section applies the court must proceed under section 6''

and in those circumstances, subsections (3) to (8) apply.

In almost any circumstance, the defendant will have already been sentenced, whereas ordinarily a procedure for confiscation will take place prior to sentence.

Subsection (3)(a) states:

``section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned''.

This is another clause that it is not always easy to get my brain around. In the general probing amendment, I have suggested first that we might leave out the whole of subsection (3)(a). Suppose we did that. What would happen? The alternative approach, as in amendment No. 85, is to leave out the words ``which constitutes offences''. Perhaps I can dwell on that in a little more detail.

Subsection (3)(a) says that criminal conduct includes

``conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned''.

I cannot think of any criminal conduct that falls within the ambit of the Bill that does not constitute an offence, so why is the subsection included?

I appreciate that we are talking about the TIC provision—offences taken into consideration at the time of sentencing. Why is it necessary to spell that out in subsection (3)(a)? I would expect the court to have simply taken offences into account when it originally passed sentence. I do not think that there is any reason why clause 6 must have the effect that it has under subsection (3)(a). I am sure that the Minister will try to enlighten us.

This is a probing amendment. I appreciate that there may be a good reason for the inclusion of subsection (3)(a), but I was puzzled by the fact that it suggests the possibility of criminal conduct that does not constitute an offence. I also appreciate that the wording may be intended to describe an offence that has not been taken into consideration. I should be grateful if the Minister would clarify that point.

Amendments Nos. 85, 89, 90 and 92 are much of a muchness and relate to the same issue as it arises in subsequent clauses. Without more ado, I ask the Minister to clarify why the subsection has been included.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman tabled the amendments in order to explore the effect of clauses 20(3)(a) and 21(7)(a). The clauses make it clear that when a court has taken offences into consideration for sentencing, and is considering a defendant's benefit from criminal conduct at a revaluation hearing, it must add the benefit from the conduct constituting those offences to the overall benefit from any criminal conduct. Amendments Nos. 84 and 89 would remove that provision, and that would prevent the court from including offences taken into consideration in its calculation of the defendant's benefit at a revaluation hearing.

Amendments Nos. 85, 90 and 92 are different. They would delete words that explain that the court must consider the defendant's benefit from ``particular criminal conduct''. However, the court takes offences into consideration. The words are a drafting device to unite the two concepts.

The amendment would allow ``criminal conduct'' to include conduct that the court had taken into consideration when sentencing. However, the court takes not conduct but offences into consideration. The practice of confiscating the benefit of offences taken into consideration is of long standing, and we do not wish to remove it from the Bill.

The revaluation clauses ensure that, when reasonably practicable, the same procedure applies on revaluation as at the confiscation hearing that takes place immediately after conviction. The court has the power to confiscate the benefit of conduct that constitutes an offence taken into consideration if it is going through the confiscation procedures for conviction.

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

The Minister has satisfied me about amendment No. 85; indeed, as I read subsection (3)(a) to him, I began to satisfy myself. I therefore have no difficulty on that score.

I return to the generality and the need for the clause. If I understand clause 6 correctly, the court may consider benefits that may have accrued from offences taken into consideration under that clause. The Minister nods. I am therefore puzzled about why it was felt necessary to restate that in clause 20 if clause 6 is supposed to apply. I would simply have said ``section 6 has effect''. I am puzzled about why it was felt necessary to restate the ability of the court to take TICs into consideration when coming to a subsequent reappraisal on the application of the director or prosecutor in the six-year period.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 10:45 am, 27th November 2001

We believe that it is necessary to restate that because clause 76 looks forward, and confiscation normally takes place before sentencing. In dealing with reconsideration, we are therefore restating the principle that conduct in cases taken into consideration is part of the particular criminal conduct. I do not understand how removing the provision would make the matter clearer. The hon. Gentleman suggests that simply restating that clause 6 applies would do that. We are restating the provisions in clause 6 as they apply to reconsideration, and I am struggling to understand why he has a problem with that.

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

I do not want to labour the point, and I am perfectly prepared to accept that I may have misunderstood the matter. However, subsection (2) states:

``If this section applies the court must proceed under section 6'',

but goes on to give a series of further definitions to try to marry ``section 6'' to the new position. I find it odd that the issue of offences taken into consideration should have to be explicitly restated in the clause. I would have expected it to apply in exactly the same way as the procedure under clause 6 if confiscation were taking place before sentence. During the confiscation process, I assume—I believe that it is common ground—that the offences that are to be taken into consideration will also be considered.

I accept that a drafting point may be involved. Ultimately, it may be that the difference between the Minister and me is minute, or that we are both worrying about nothing. Nevertheless, the provision was sufficiently odd for me to want to ascertain what was in the draftsman's mind in this case.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The procedures under clause 20 cannot be exactly the same as those under clause 6, for the simple reason that confiscation takes place before certain parts of sentencing. When reconsideration takes place, obviously all the sentencing in the original consideration has taken place. The provisions therefore cannot be replicated.

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

We may now have reached a point that involves a wider issue. Under the clause 6 procedure, confiscation takes place, an assessment is made and the defendant is sentenced. In such circumstances, might offences be taken into consideration during the sentencing process, after the confiscation order is made? The court could not make a confiscation order in respect of those TICs. However, six years later, when a reconsideration takes place, TICs could be taken into account in determining the confiscation order that is made. Does the Minister understand my point? There might be a different regime, and a defendant would be seriously disadvantaged in the reconsideration because TICs that were previously kept out of the confiscation picture could suddenly be brought in. I did not think that that was what he intended, and I find it hard to believe that it is, but he raises the slight possibility that that might be the case.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I am fairly certain that what the hon. Gentleman has suggested is not what is inferred, but I will go away and make absolutely sure that that is the case. Cases that are taken into consideration will have been known to the court at the time of conviction, and it will then go through the procedures outlined in clause 6: sentencing, confiscation, and any fiscal sentencing that is considered appropriate after the confiscation is taken into account. That procedure would cover cases that are taken into consideration in the same way as they would be covered on reconsideration. Clause 20 does not introduce a new concept to that which is laid out in clause 6. I will find out whether that is correct, and I assure the hon. Gentleman that I will inform him if it is not.

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

It is early in the morning, and I hope that the Minister will forgive me if, following yesterday's late night, I have not clearly explained what was bugging me about the clause. We have clarified that by dialogue, which is what a Committee is supposed to do.

I am pleased that the Minister is not envisaging a different regime under clause 20 from that laid out under clause 6. However, my concern is that one might consider that there are advantages. I had not thought of the following point until we came to clause 20: if clause 6 might produce a situation in which a person whose confiscation had been assessed before sentence could say, after he has been sentenced, ``I also want 250 other offences to be taken into account,'' that would raise, for the first time, possibilities with regard to benefits from criminal conduct that had not been thought about before. That circumstance would be a strange consequence of clause 6.

Photo of Vera Baird Vera Baird Labour, Redcar

I wish to contribute to the excellent dialogue. If the hon. Gentleman refers back to clause 6, clause 76(3)(c) might serve to clarify the matter under discussion. It states that

``conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences''

can be taken into account as criminal conduct. Is that helpful, or does it muddy the waters?

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

It is helpful. I have not come across a situation in which the offences to be taken into consideration are sprung on the court at the last minute, without being made available during the pre-sentencing process. Therefore, I expect that the regimes under clauses 6 and 20 would be identical. If that is the case, I merely repeat a question: why was it felt necessary to define the regime again in clause 20 and subsequent clauses? That is an interesting question.

I welcome the Minister's remarks, and I am sure that he will be able to provide reassurance.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

My hon. Friend believes that clause 76 is helpful, and as he is a lawyer, I will not challenge his opinion on that. However, should not reference be made to clause 76 in clause 20, to clarify what we are trying to achieve? That point has cropped up before.

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

It is an interesting point, and the Minister might wish to consider it. I do not want to go back over the drafting. The legislation is complex, and it is often necessary to go on a search for what a matter in a clause relates to. In some cases, one must examine not merely one clause, but a clause that refers one to yet another. I do not know whether that will make the Bill a practitioners' fortune or a practitioners' nightmare when it is implemented. I know that there are drafting matters to consider, and minimalism and simplicity are often important, but the Minister should bear it in mind that the Bill is not easy to read and understand. There is no doubt that a practitioners' handbook will be produced to do the cross-referencing when the Bill comes into operation. However, I prefer to read legislation that is apparent.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 87, in page 11, line 38, leave out `or in connection with'.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

With this it will be convenient to take the following amendments: No. 91, in clause 21, page 13, line 35, leave out `or in connection with'.

No. 93, in clause 22, page 14, line 38, leave out `or in connection with'.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

On a point of order, Mr. O'Brien. These amendments are the third group relating to clause 20 and by the end of the debate there will have been a substantial discussion of some matters. However, both the Minister and my hon. Friend the Member for Beaconsfield (Mr. Grieve) said that they were discussing general issues. I believe that further general matters fall outside the amendments. Will you give the Committee guidance about whether we should make general points under this group of amendments or whether you will consider granting a stand part debate afterwards?

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

General issues can be debated in a stand part debate.

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

The amendment raises a small matter about clause 20, but it may have wider importance. I would be grateful if the Minister would clarify the matter. The amendment is probing, to allow me to understand intent.

The provisions of clause 20 are intended to match those in clause 6, but for a situation that arises on reconsideration. Clause 20 points out that clause 9(2) will not apply—that makes perfect sense—and states that the court must take account of conduct that occurred before the relevant date, property that was obtained before that date, and property that was obtained on or after the relevant date

``if it was obtained as a result of or in connection with conduct occurring before that date.''

I understand that property obtained as a result of conduct occurring before the date means that property that arose from criminal conduct should be taken into consideration, although it may have accrued to the benefit of the defendant subsequent to the relevant date. However, what does

``property obtained . . . in connection with conduct''

mean? The connection is surely a result of the conduct. If it is not, how can the property be described as the proceeds of crime?

Have the draftsmen shown a superabundance of caution? I experienced that during consideration of a Northern Ireland Bill that stated that certain bands should not play ``musical or other instruments''. I asked what another instrument is if it is not musical, and the words were deleted. There is sometimes a tendency to over-egg the pudding. If the matter is not a result of that conduct, what is the aim of ``in connection with''? If the connection is not ``as a result of'', surely we are considering assets that are unassociated and would not fall for consideration.

Amendments Nos. 91 and 93 would make the same change to clauses 21 and 22 respectively. The issue is the same in relation to all three clauses. It is a simple matter, but I have an underlying concern as to whether the use of the words ``in connection with'' is not an attempt at widening the scope of the eventual confiscation order in a manner that might be thought unreasonable. Surely the whole issue of these provisions is that property obtained as result of criminal conduct falls to be confiscated.

To give the Minister an example—a difficult one—if I go out and buy a car with my inheritance from my grandmother, that is my money. If I happen to have driven that car on one of the days on which I was also committing one of the offences for which confiscation falls, does the Minister intend that that car should be confiscated? That is not how it appeared to me that the Bill was intended to operate under clause 6, which is why I am slightly puzzled that it has appeared in this form under clause 20.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 11:00 am, 27th November 2001

Does the hon. Gentleman agree that if that is the intention and effect of the operation under the clause, it would be most unhelpful? It would muddy further an often misunderstood distinction between confiscation and forfeiture. Forfeiture would be the appropriate avenue for the court in relation to the car to which he refers.

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

I agree entirely. That is precisely the issue that we should address. It is all the more curious because it is highlighted under reconsideration, although I did not flag it up, and I cannot see where it appeared in that form when we considered it under the straight confiscation provisions. I wait to hear from the Minister on that point.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman is absolutely right that the amendments, taken in isolation, would have a relatively narrow effect, but their consequences would go far wider than that. Let me say, without trying to justify the wording of the Bill, that the measures go no further than the current legislation. If there is a belt and braces approach, or a superabundance of caution, it already exists. The Committee will have to consider whether such caution is necessary.

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

I understand the point that the Minister makes. However, will he enlighten us as to whether the phraseology about which the hon. Member for Orkney and Shetland (Mr. Carmichael) and my hon. Friend are worried is the precise formulation used in the existing legislation? If not, there is no reason to repeat it, thereby leading to the possible difficulties that they have outlined.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I do not think that it is the exact wording in the existing legislation. I shall outline briefly the current legislative position. Section (2)(3) of the Drug Trafficking Act 1994 provides that a person benefits from drug trafficking if he has at any time received any payment or reward in connection with drug trafficking. Section 71(4) of the Criminal Justice Act 1988 states that a person benefits from an offence if he obtains property as a result of or in connection with its commission. Both those statutes have the effect that a court conducting a revaluation exercise can consider benefit received by the defendant at any time, both as a result of and in connection with criminal conduct. The Bill does not go further than existing legislation in that respect: it replicates it.

I shall outline why we are including the words in question, and let the Committee consider whether the abundance of caution is more than is necessary. The Bill applies both limbs of the definition—``as a result of'' and ``in connection with''—in the revaluation clauses and elsewhere, because that is necessary to ensure that offenders are deprived of the full value of their criminal proceeds. There is no reason to treat property obtained after the date of the original court decision or after the conviction differently from other property when the court is reconsidering the case. The court should consider all the information available to it about benefit connected with the conduct. If, for example, a defendant has in his bank account a sum of £50,000 acquired from crime, it is perfectly acceptable that the court should recover the benefit, including any interest that has accrued on that sum, up to the time when a confiscation order is made and not up to the point of conviction. If confiscation powers were limited to property received as a result of conduct, that would not be sufficient to cover every situation in which criminals derive benefit from crime. That has always been accepted, and, in response to the question posed by the hon. Member for Beaconsfield, it applies to revaluation provisions and general provisions.

To give an example, let us suppose that an offender is involved in a drugs ring. The offender's sole involvement in the operation is to carry the drugs into the country in exchange for a payment by the organisers of the ring. It would not be beyond the ability of a lawyer to seek to argue that payment in those circumstances was not received as a result of the conduct. However, we would want such payment to be the subject of confiscation. Perhaps the courts would reject an argument along the lines that I have mentioned, but the wording ``in connection with'' makes that outcome far less likely. Many circumstances exist in which benefit is derived from criminal conduct but is not a direct and immediate causal result of that conduct. It would not be right to place such benefit beyond the reach of confiscation as the amendment would do.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The Minister just imported some interesting words into the Bill that are not currently there. He referred to a ``direct and immediate'' result. That is not the wording of the Bill, which is ``as a result''. There is no need for immediacy or directness under the Bill.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Is the hon. Gentleman arguing that we should limit the ability of the court to consider the proceeds of crime when they cannot be proven to be directly the proceeds of crime. There are all kinds of instances when the individual concerned receives payments not directly but as part of an operation or organisation, and such proceeds can properly be regarded as the proceeds of crime.

Photo of Boris Johnson Boris Johnson Conservative, Henley

It seems to me that the words ``in connection with'' are superfluous. In the Minister's example of a trafficker who is rewarded, and who plainly receives his reward as a result of engaging in that criminal activity, it would be impossible for a lawyer to argue otherwise. My only suspicion is that the words ``in connection with'' are intended to widen the definition to draw in proceeds that may not be directly related to the particular crime.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

There is not an intention to widen the definition, and that is not the effect of the wording. Does the hon. Gentleman want to put such issues in doubt, and allow for such arguments to be made when the proceeds are not wholly direct, as I said? Alternatively, does he want to make it absolutely clear to the court—through the wording of the Bill—that when proceeds have been gained ``in connection with'', those proceeds are allowed to be confiscated? The caution expressed in the Bill is necessary in order to preclude that doubt. We should not allow that doubt to enter into the argument. I do not agree that the phrase widens the definition to include benefits that are not the proceeds of crime.

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

The Minister used the word ``proceeds''. I agree that there would be no difficulty with proceeds gained ``in connection with''. However, the word that appears in the Bill is ``property''. That is one of the reasons why I flag up the point about a car that is legitimately acquired but is used in connection with criminal conduct. The Minister did not suggest that such a vehicle or property was to be taken into account. There is a difference between property and proceeds.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Although I used the word ``proceeds'', and the hon. Gentleman is concerned about the word ``property'', the Bill mentions ``property obtained'', not ``property used'', in connection with crime. He would have a point if the Bill referred to ``property used'' in connection with crime. If a criminal had borrowed his granny's car, we would not want the car to become subject to the confiscation procedure. That car would not be property obtained in connection with crime.

Photo of Boris Johnson Boris Johnson Conservative, Henley

What if the culprit used his granny's car to engage in not just criminal activity but lawful activity by which he obtained property in connection with his particular criminal conduct? If I understand the clause correctly, that property would be forfeit, or liable for confiscation.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

If the culprit used his granny's car to obtain property in connection with crime but did not obtain the car as a result of criminal conduct, how would the car be forfeit? If he obtained it as a result of, or in connection with, criminal conduct—obtained, not used—why should he not forfeit it?

Photo of Boris Johnson Boris Johnson Conservative, Henley

The Minister slightly misunderstands me. The issue is not how the criminal obtained the car, but property obtained with the car that may be connected with criminal conduct. As I understand it, such property would be connected with his criminal conduct. If he were engaged in drug trafficking or whatever, that property, too, would be connected with criminal conduct, and would be forfeit.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Property obtained with the car would have been property obtained in connection with criminal conduct; the car itself would not. The car was borrowed from his granny, so it would not be forfeit. I do not believe that the hon. Gentleman's fears are real, and I do not believe that he thinks that we would confiscate the car in the case that he mentions.

Photo of Annette Brooke Annette Brooke Opposition Whip (Commons)

Subsection (4)(c) says

``or in connection with conduct''.

It does not mention ``criminal conduct''. Sailing away in granny's car is simply conduct, it is not necessarily criminal conduct. I speak as a lay person, and I hope that I have made the matter clear.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Is not the hon. Lady missing out the word ``obtained'', as did the hon. Member for Henley (Mr. Johnson)? If the car is obtained in connection with criminal conduct, it ought to be potentially forfeit, and the courts ought to be allowed to consider the matter.

Photo of Annette Brooke Annette Brooke Opposition Whip (Commons) 11:15 am, 27th November 2001

I am a lay person, but it seems to me that ``property obtained'' does not necessarily refer to property that has been obtained by criminal means.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I am not a lawyer, so I do not know why the hon. Lady makes the distinction that she is a lay person.

I have been advised that the formula ``obtained . . . in connection with'' criminal conduct would not allow the legislation to cover property used in connection with criminal conduct—or the similar kinds of property to which reference has been made. However, as I am a lay person, I do not know how further to assure the hon. Lady about that.

I ask Opposition Members to accept that the words that are used in the Bill would put such issues beyond doubt: they would not raise confusion; and, with regard to confiscation, they would not allow loopholes to occur where there is property that is obtained in connection with the proceeds of crime.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am still struggling with the first point that was raised by my hon. Friend the Member for Henley. I hope that I correctly understood the Minister on that. When he was challenged about the phrase ``in connection with'', I was pleased that he made it clear that the Government do not intend to widen the scope of the legislation, and that he subsequently suggested that the intention was to clarify.

However, neither I nor my hon. Friend are lawyers, and—with the greatest respect—nor is the Minister. Therefore, I ask him to consult lawyers to discover whether it is the case that that phrase will clarify without widening, and to inform the Committee of the legal beagles' view of what he has said. I hope that what he has said is correct, and if that phrase clarifies matters, I would support it. However, I want him to give an undertaking to the Committee that, if the advice that he receives suggests that the phrase might widen the scope of the legislation, he will consider changing the wording.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I am more than happy to give that assurance. I am confident that the hon. Gentleman is wrong, and that the phrase does not widen the concept to cover property used in connection with—rather than obtained as a result of—crime. However, I will confirm that, and inform him that that is the case.

Photo of Boris Johnson Boris Johnson Conservative, Henley

Logically, the insertion of that phrase must cause a widening—otherwise, it would be impossible to make sense of it. If there is any causal connection between a villain's ownership of property and his criminal conduct, that will be entirely captured by the phrase ``as a result of''. There is no need to insert the phrase ``or in connection with'' unless the intention is to widen the legislation by dragging in for expropriation property that was not obtained as a result of criminal conduct.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Let us try to address the point of principle: is there a major issue at stake, or do we agree with each other, being concerned merely about the wording? If the hon. Gentleman believes that property obtained in connection with criminal conduct should not be confiscatable, he should make his case for that. However, I cannot see why it should not be confiscatable. If hon. Members are opposed to that principle, they should state that—in interventions or in their own contributions—so that we can examine whether the argument has some substance. If that is not the case, the hon. Member for Spelthorne (Mr. Wilshire) wants assurance that the Bill will not do something that was not intended. That is the only issue between us. Having assured him that I shall check that the Bill will not do that, we must return to whether there is an issue of principle. Property obtained in connection with the proceeds of crime should be confiscatable. It should be a matter for the court to decide. I do not believe that property so obtained should be put beyond the reach of confiscation, and I hope that hon. Members agree with me.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

We are in danger of trying to count the number of angels that can dance on the head of a pin. The Minister referred to there being a matter of principle. I do not agree, other than that legislation should be well drafted and mean what it says. He said that such a form of words is used already in legislation. When he thinks deeply about the request of the hon. Member for Spelthorne, will he consider the danger that, if we restrict the wording of the Bill, it will be regarded by the judiciary as restricting the operation of the law.

I am generally in favour of the amendment. It is logical, and that must not be lost sight of. When the Minister cited various examples, I found myself mentally picking each one off and thinking, yes, that should be covered by confiscatable property. However, each time I agreed with him, I then thought that such matters would be covered by property obtained ``as a result of'' such conduct. I do not think that ``or in connection with'' adds any meaning to the Bill, so let us get rid of it. The amendment makes common sense. It is that simple. Such words do not widen the scope of the Bill.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Hall Green

I have a simple question. I understand why the hon. Gentleman made the point that, if the words do not have a purpose, they are redundant. When someone obtained property or proceeds as the result of a secondary role in what was a larger scale offence, it could be argued that he had not obtained the property or proceeds directly as a result of, but in connection with wider criminal activities.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The hon. Gentleman used the interesting words ``as a result of''. He then tried to import the question of a direct result. There is no question about that in the Bill. I could understand the force of the statement, ``as a direct and immediate result or in connection with'', but that is not what the Bill says. When no real benefit is to be derived from using certain words, why should they be there? The matter is as simple as that. The only possible sense in which such words could be used to widen the scope of the clause is the example highlighted by the hon. Member for Beaconsfield when he referred to possible confusion between confiscation and forfeiture. That has already slightly muddied the water and, if there is a danger that the wording under discussion will muddy it further, we must devoutly avoid it. We would not want to die in a ditch over the matter, given that the Minister has assured us that he will consider it.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman is right. If the words are totally superfluous, they should be removed from the Bill. The hon. Member for Henley pursued a point about widening. He rightly exposed the potential difficulty that if the words were removed, the courts might interpret that as narrowing the definition. He said that he would not want to do that, and we must examine the matter. We currently believe that if we removed the words, we would narrow the definition, and that is why we want to retain them.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I do not share the analysis of the hon. Member for Henley that we would widen the definition of the clause in a way further than I have mentioned. He said that if the words are present, they must have a purpose, which is to widen the definition. I beg to differ, and I suggest that there is no good reason to include the words, except that they have been used in previous legislation.

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

I do not want to prolong the argument unnecessarily. The words either have meaning in their natural and ordinary usage in the English language, and have a widening effect as a consequence, as my hon. Friend the Member for Henley said, or we can get rid of them because they are not intended to widen the Bill.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I think that that might be the case. We are splitting split hairs. As I said earlier, there is not a great principle at stake, but the question of neatness and appropriate use of language. I urge the Minister to consider the matter.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

I am not entirely convinced that the hon. Gentleman is right to say that there is not a question of principle. I hope that the Minister will assure us of that when he sums up. I was worried by the comments of the hon. Member for Birmingham, Hall Green (Mr. McCabe), who may have let the cat out of the bag. If the words ``in connection with'' have any meaning to the proceeds of crime—I am not convinced by the Minister commenting that there are no circumstances in which they mean anything different from ``as a result of''—we are opening a Pandora's box of all a defendant's past conduct. Therefore, we would provide a belt and braces beyond moneys that have been confiscated.

Photo of David Tredinnick David Tredinnick Chair, Statutory Instruments (Joint Committee), Chair, Statutory Instruments (Select Committee)

I do not have the benefit of legal training. As a lay person who read the clause, I had the impression that the scope was being widened. I still have that impression.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

I thank my hon. Friend. There is a philosophical point in saying that surely even convicted drug dealers have rights over property that has been legitimately earned. Are the words ``in connection with'' an attempt to muddy the two streams of legitimate and illegitimate assets?

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

Am I correct to assume that Conservative Members are worried about the assets of drug dealers? Yet again, they are more concerned about drug dealers than about their victims.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster 11:30 am, 27th November 2001

That is a tough one to reply to. I can reassure the hon. Gentleman umpteen times that that is not the case. I am concerned that we are taking the law further forward to muddy the waters for not only convicted drug dealers but all of us. There would be a sense that the moment a person is under investigation, all his or her assets could be placed in one pot, and considered as the proceeds of crime. I hope that the Minister will reassure me that the words are redundant and should be removed, but if they are not, the only meaning that I can perceive is the muddying of the two streams of illegitimate and possibly legitimate assets.

I fully appreciate—I know that we have pursued such matters previously—the worry that we do not want criminals to get away with assets that they have built up. However, there may be more than a reasonable doubt about the assets.

Photo of John Robertson John Robertson Labour, Glasgow Anniesland

Am I right in assuming that the hon. Gentleman and his colleagues consider that the rights of drug dealers are more important than the rights of those who suffer as a result of them?

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

I speak for myself and not necessarily for all my hon. Friends on the matter. Splendid isolation is occasionally not a bad position to be in.

We are trying to get to the bottom of the words' meaning, which is the ultimate purpose of any Committee. If I am to be convinced that the words have no meaning—the point has been elucidated by my hon. Friend the Member for Henley—let us remove them from the Bill. If they have meaning, my only worry is that they are used to give a belt and braces. If we do that for convicted drug dealers, where will the line be drawn? I suspect that there would be a precedent for future Bills in which people are investigated, and that would allow organisations, particularly the Financial Services Authority, to consider all assets in one pot.

Photo of Vera Baird Vera Baird Labour, Redcar

I accept the analysis of the hon. Member for Orkney and Shetland that the phrase ``as a result of'' conduct—that effectively means criminal conduct, because the stage is beyond that of a criminal lifestyle—means only because of crime. Therefore, I understand why he believes that ``in connection with'' does not add a great deal to the Bill. However, there is a possibility of an intended drugs deal where money is given to a man who will purchase drugs from the deliverer. That man may have that money when he is arrested, and that arrest may occur before the crime is committed, because the drugs equivalent of the flying squad has been watching events. In such a case, we would want the would-be criminal to forfeit the money, to use the hon. Gentleman's word. It would torture language to say that the person had the money as a result of a crime that had not been committed.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The particular set of circumstances that the hon. Lady outlined would constitute at least an attempt to commit, under sections 4(3)(b) or 5(3) of the Misuse of Drugs Act 1971, the offence of possession with intent to supply or of being concerned with the supply of drugs. The person would have the money as a result of his attempt to commit such crimes.

Photo of Vera Baird Vera Baird Labour, Redcar

Again, I can see the force of that point. If, in the middle of confiscation proceedings, we argue about sufficiently proximate acts to define attempts, conspiracies, or incitements, it is far better to insert terminology that covers that.

A lay person reading the legislation would not think that the would-be perpetrator had received that money as a result of the crime if, for all practical purposes, the crime had not taken place. That difficulty is covered by such a turn of phrase, which—although I have listened carefully to what the hon. Member for Henley said—does not widen the application of the provision. It does have a purpose, which is to deal with a situation like that, and that it is not dangerous.

The judiciary exists to do justice, and to ascertain what is criminally obtained property under the Bill, not to be sidetracked into the minutiae that we are discussing. People should be reassured. The analogy of the car inherited from granny that has been used in the course of a crime will not help the criminal, because a separate set of provisions would confiscate that car.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

On a point of order, Mr. O'Brien. While you and your colleagues have been in the Chair, this Committee has thus far been conducted with a great deal of good humour. Some frank and helpful exchanges from both sides have been given and accepted in the spirit in which they were intended. However, at the risk of missing out on that good humour for a moment, I must challenge the comment by the hon. Member for Glasgow, Anniesland (John Robertson). It introduced a sour note about our intentions. No apologies are needed for doing the job of the Opposition. The Opposition, among other things, test the accuracy of the wording of the Bill. The Minister said that he was willing to consider whether our points about accuracy should be further reviewed. Accuracy is important, and I thank him for accepting that.

Equally, we should not apologise if we question the Bill's intentions. Much of it is supported by all members of the Committee. Where there is some question about the intention, it is our duty to raise it. The Minister, again with good humour, disagreed with our doubts about the intention and the widening of the Bill, but did agree to look into it. To do the job of the Opposition—to challenge accuracy and intention, particularly when the Minister responds positively—can in no shape or form make us the friends of drug dealers. I resent the slur made by the hon. Gentleman, and wish to put the record straight.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

That is not a point of order for the Chair, but I am sure that the hon. Gentleman's words have been heard.

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

I recall a meeting in my constituency, in which the chairman intervened. Someone said, ``Methinks they do protest too loudly'', to which the chairman replied, ``I have to, otherwise the people at the back of the room cannot hear''.

The hon. Member for Spelthorne is making far too much of the matter, which shows that there is substance to our argument. We have we spent an enormous amount of time on the amendment, and at the end of today a guillotine falls, by which time we must reach clause 40. If we do not, there will be no debate on the clauses that have not been discussed. The strategy of the Conservatives and Liberal Democrats is to ensure that some of the provisions at the end of clause 40 are not discussed, so that they may seek amendments to them in the other place on the basis that they were not discussed here. A more honest approach would be to argue their case on the subsequent clauses rather than trying to obfuscate the position.

I was interested to hear the words ``minimalism and simplicity'' from the hon. Member for Beaconsfield, as they are not words that I would associate naturally with him and his colleagues. Indeed, ``obfuscation and rapacity'' might be better terms for lawyers in general and the hon. Gentleman in particular. If he and his colleagues want to be taken seriously, perhaps it would be better if they were to make constructive suggestions and stop posing as the drug dealer's friend.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

As the hon. Member for Beaconsfield said, we were up late last night, or later than we are accustomed to in these modern times—12 o'clock was early not so long ago, but it becomes harder when it is not so frequent. Perhaps we have not been as clear as we otherwise could have been in the debate that we have been having.

As I tried to say previously, there are two issues: whether there are words in the Bill that mean absolutely nothing—in which case, if we can be utterly assured that they mean absolutely nothing, they should not be there—and whether there is a danger that, by removing them or leaving them in, we widen the concept or narrow it. The hon. Member for Cities of London and Westminster (Mr. Field) has convinced himself on this point, as he has on others, that the intention is to widen. He is worried about that, as is the hon. Member for Henley.

I shall repeat what I said, and clarify for the benefit of the two hon. Gentlemen, that the Drug Trafficking Act 1994 refers to a person having received payment or other reward ``in connection with'' drug trafficking. We have tended rightly to concentrate on the connection aspect, because of the wording of the amendment, but it is already in the 1994 legislation. The Criminal Justice Act 1988 refers to a person having obtained property

``as a result of or in connection with''

the commission of an offence. Taking those two precedents fully into account, if we removed ``in connection with''—more so than ``as a result of''—we would narrow the meaning of the legislation. We would send a clear message to the courts that we were intending to narrow the definition. That is the issue raised by the hon. Member for Orkney and Shetland, and we would have to be sure, before removing those words, that that was not so. The danger is that we would narrow the definition, not that we would widen it.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

Given that the words that the amendment purports to remove are found in other similar legislation, is it not clear that such cases are exactly the kind that would be removed?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I do not think that the courts could interpret it in any other way than if we remove those words, we intend to narrow the definition.

If that is the case, as I said when I tried to move the debate on to whether this is an issue of substance, I shall oppose removing the words. Only if I were absolutely convinced that it were not the case would I be prepared to accept the amendment. I hope that it is not an issue of substance, and that the Committee will accept that we should not narrow the definition. If we accept the amendment, there is a danger that we will do exactly that. On those grounds, I ask the hon. Member for Beaconsfield to withdraw the amendment, but, in response to the hon. Member for Spelthorne, I shall check whether that is the case and, having taken advice on the matter, I shall make the position clear to the Committee.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 11:45 am, 27th November 2001

The hon. Member for Orkney and Shetland referred to splitting hairs, but I fear that I have raised a hare—a rather different concept—during this morning's discussion.

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

Indeed.

I am especially mindful of the contribution of the hon. Member for Redcar (Vera Baird) and her reasoned analysis of the clause. The term used is not ``criminal offence'' but ``conduct''. I share the opinion of the hon. Member for Orkney and Shetland that that would fall plainly within ``result'' and that there would be no problem even if it occurred before the offence had been committed.

I do not want an exercise in semantics, but I should highlight one slight anxiety. I am fully aware—the Minister has explained, and it comes to no surprise to me—that what has been used is the mere repetition of a term that has been in legislation for some time. The problem is that experience in practice has over the years persuaded me of the extraordinary capacity for words and expressions that are slipped into statute to lie dormant for prolonged periods and suddenly to surface bizarrely, not necessarily to change the law, but to create all sorts of problems. Before they have been sorted out, they end up in the criminal Court of Appeal because a Crown court judge reaches his decision on a day when the prosecutor has not, unfortunately, read the Hansard for that day's Committee, and the prosecutor suggests, because he reasonably believes, that the judge's powers are wider than Parliament intended.

I have witnessed that countless times not only in the case of statutes, but in respect of unguarded, off-the-cuff comments and extempore judgments by lord justices after a good lunch. It causes problems and has to be sorted out. I flag up the matter for that reason and because cheap and streamlined justice is one of the Committee's aims. Mindful of that, I urge the Minister to consider carefully with his officials what is intended.

The hon. Member for Redcar rightly said that forfeiture proceedings will apply to property used in connection with crime, whether it be the sledgehammer used to break down the door or the JCB used to carry out the ram raid. All such items can be confiscated. I am reminded of judges confiscating with some enthusiasm the paraphernalia of a brothel at the conclusion of proceedings on offences related to such a business. It is precisely because of the close proximity of the two that I am anxious that people should not get it into their head that the two have been married together in the Bill, causing a problem that must subsequently be untangled.

On that note, and given the assurance that I am grateful to hear from the Minister that the matter will be given further thought, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

I remind hon. Members that we have had a full and wide debate on the clause, and I do not intend to let the debate drift into the same repetition that we have witnessed over the past hour or so.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I shall do my best to follow your ruling exactly, Mr. O'Brien, because I believe that other issues are involved.

In case the hon. Member for Glasgow, Pollok (Mr. Davidson) wants to intervene or make a speech to say that this is another example of hon. Members making speeches for the sake of it, I should point out that guillotine motions are unilaterally imposed by his party, and we do not encourage, support or agree with them. Just because the Labour party announces that in its opinion there is enough time to do certain things by 7 o'clock tonight does not make it a God-given statement. Again, there will be no apologies from this side for doing a proper job when the Government want to do a rush job in the hope that they will not be scrutinised by Parliament as properly as we believe that they should be. I thought that I would get that in to save the hon. Gentleman having to make the speech that I suspect that he will make. In any event, the more speeches that he makes, the more he will waste the time of Opposition Members who want to make valid points.

When I read clause 20, I wondered—again, as a layman—why it was needed. During our debate, it was made clear that that it would not be possible to proceed under clause 6 because it covers different circumstances. I think that I understand that argument, but it may become clear that I do not. I remain to be persuaded whether the clause is necessary. It also raises the issue of double jeopardy. I expect that a lawyer will tell me that I have misunderstood the meaning of that, but the clause will put a person at risk of further penalty in a way that is not normal or acceptable under English law. If the procedure has been gone through and someone has been convicted and their assets have been investigated, that should be the end of it, yet under the clause, notwithstanding the justice that has been meted out to the criminal, there will be another investigation. Will the Minister reassure me that such action is not beyond what is reasonable in a country that believes in the rule of law?

The provision could put a person in an invidious position. Let us suppose that someone is convicted of more than one offence, and thinks to himself that one of the convictions is fair, but that the other is not. If he appeals against that conviction, re-opens the case and says, ``I am guilty of other things'', his ability to mount a proper appeal against the conviction when he considered an injustice had been done could be hampered by the provisions of the clause being brought into play. If he opens his mouth to launch an appeal, he will automatically open a trapdoor for matters outside the original case. That could make it more difficult to achieve justice.

A previous issue comes to mind that we were told was irrelevant. We argued that, if we went back beyond six years, the onus of proof should switch back to the Crown and away from the defendant or the convicted criminal. We were told that a six-year rule was unreasonable, so I was surprised to find a reference to it under subsection (1)(c). Having been told previously that that rule was not appropriate, why has it been introduced in the clause? The position needs clarifying.

Subsection (4)(c) refers to property that has been obtained as a result of or in connection with the conduct that was the subject of the original proceedings. That takes me back to our argument about the six-year rule. I am talking about the introduction of property that was not part of the original proceedings, but related to something that had happened subsequently. If someone had now to demonstrate that the property had been acquired subsequently by proper means, without the safeguard of the six-year rule for which we were arguing, he would be placed in an invidious position.

My view remains the same, despite the Minister's response to the previous debate: if one looked back more than six years, a person would have only a slim chance of being able to prove beyond doubt that they had used assets that were acquired legitimately to buy property. However, they would lose out if they could not prove it.

I offer another example: a convicted criminal might have attained a property a long time—20 years, for instance—after they had acquired the money to purchase it, and they might be asked to prove that it had been acquired legitimately. I do not wish to lean over backwards to help convicted criminals, but it seems to me that it might be difficult for justice to be achieved in such circumstances.

I wish to raise another issue—and I hope that it will reassure anyone who might be tempted to think that I am trying to be soft on criminals that that is not the case. I want to know what subsection (7) means. As a non-lawyer, I understand it to mean that when a court decides what to do with somebody, it will take into account other fines, forfeitures or penalties—or whatever the right term might be—before making an order. If that is the case, the provision is being lenient on the criminals. I hope that that redresses the balance with regard to some of the other things that I say.

I also hope that the Minister will tell me that my interpretation of subsection (7) is wrong, as it seems to me that we are being asked to agree to something that says, ``In theory, this is what should be confiscated from you, but because you have outstanding fines and debts, we will reduce the amount that we are seeking to take from you.'' If that is what that subsection means, it is wrong. A court should say, ``In our judgment, taking into account all the facts of the crimes, and the circumstances, and what you have told us, this is what you owe, and you will pay it, please''—and if the person cannot pay it, they are made bankrupt, and if they become wealthy enough to pay it, they are made to pay it. However, if subsection (7) is saying, ``We will reduce the amount if you are in financial difficulty,'' I will be opposed to the clause.

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

I wish to follow up a couple of the points that were made by the hon. Member for Spelthorne—and, in particular, the earlier strictures that he laid upon me, which seemed to me to be a load of Molochs.

The guillotine was agreed; that was the unanimous decision of the Programming Sub-Committee, which—according to my understanding of the word ``unanimous''—means that it was accepted by Conservative hon. Members.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

As I have explained, I was not present at the meeting of the Programming Sub-Committee, as I was attending my mother's funeral. Therefore, the decision could not have been unanimous, and had I been present, I would have made my views crystal clear.

Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

I do not know what the hon. Member for Glasgow, Pollok said, but I hope that it was not unparliamentary.

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

It certainly was not; if it were, I would not have said it.

My remarks will be minimalist, although they address important matters. I ask the Minister to clarify the reference in subsection (1)(c) to

``the end of the period of six years''.

I am concerned that it might mean that if someone who has managed to conceal their assets is caught and jailed for 20 years, for example, but released after 10 years, they could bring their assets in from abroad, or dig them up from the ground, and start spending, and, if the six-year period has been surpassed, the court would not be able to pursue them. I acknowledge that that would apply, in particular, to circumstances in which the court has decided not to proceed, but it might have made that decision because there was no visible sign of any assets, and therefore, it might have been entirely misled into believing that the person had no assets. However, if it subsequently discovers—even after more than six years—that there were gains from crime that had successfully been concealed, it would be contrary to the spirit of the legislation if the court, and the system, were not also able to attempt to seize them.

Photo of Boris Johnson Boris Johnson Conservative, Henley 12:00 pm, 27th November 2001

It occurs to me as a complete non-lawyer that apart from the question of the potential oppressiveness for the miscreant, in so far as his property may or may not have been innocently acquired, and the delay of six years in reconsidering his case, the clause also creates a risk that undermines the very purpose of the Bill as endlessly set out by Labour Members. If we give the director, the Assets Recovery Agency and everyone else six years after conviction to get hold of the proceeds of crime, we incite them to a lack of care, thoroughness and energy at the outset of the procedure.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Hall Green

The hon. Gentleman may have missed the point. Is not the purpose of clause 20 that the case should be reconsidered when new evidence came to light, and not because the director or prosecutor had evidence, and had claim to use it, at the time of conviction?

Photo of Boris Johnson Boris Johnson Conservative, Henley

None the less, the effect will be to allow the director and the Assets Recovery Agency to hang fire in the hope that new evidence will come to light. I am not convinced that the six-year period will encourage them to be as dynamic as they might otherwise be. I am sure that Labour Members, who will want to recover every penny that they possibly can, will want to close that loophole.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

The hon. Member for Spelthorne may have raised a good point after all these sittings. It relates to subsection (7)(b) and the requirement that we subtract from the just or available amount those sums which have been, or are due to be, paid as fines. Does not that amount to allowing the defendant to pay his fines out of the proceeds of crime?

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

One matter that arises from the discussion has not been touched on. Is it envisaged that an application for reconsideration of a case can take place on only one occasion, or could it take place many times, whenever further information comes to light? I am not aware of any multiple considerations that have taken place in the past, although perhaps they have. That raises the issue of finality in proceedings.

In our discussions, we have acted on the principle that reconsideration would be a one-off event that would take place when new information came to light, but I foresee circumstances in which there might be more than one reconsideration. Does the Minister think that that is desirable, and has it ever happened? Does he think that some limitation should be introduced? It is desirable that confiscation should take place if new information comes to light but, as we sometimes argue in other contexts in the House, it is also desirable that there should be an end to legal proceedings.

Someone may spend the six years after a confiscation being dragged through multiple reconsiderations of benefit. Some might say that that would be due to a failure by the prosecutor or director to get their act together in the first place. I flag that up, and would be interested to hear the Minister's comments.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Clause 20 is one of three clauses that allow reconsideration within six years. On the one hand, my hon. Friend the Member for Glasgow, Pollok asks me why the period should be limited to six years, and on the other, Opposition Members say that no period should be allowed, and that we are only encouraging ineffective enforcement by allowing people to reconsider cases.

There is a six-year limitation on the assumptions. To make the Bill proportionate, there should be a time limit for when people can go back. We therefore propose that the reconsideration clauses should be subject to a six-year limit.

When the director or prosecutor seeks reconsideration, he must convince the court that it is appropriate. It is at the court's discretion whether such action will proceed. I shall clarify the point made by the hon. Member for Beaconsfield. In theory, there can be multiple reconsiderations and I do not see why that should not be so. To our knowledge, however, reconsideration under the existing legislation is rare. I am not aware of any circumstances in which there have been multiple reconsiderations. I ask members of the Committee to think about the backstop position in which new evidence came to light that would convince the court that it was appropriate for reconsideration to be allowed. The Bill should not prevent that from happening.

I accept that, under clause 20, a confiscation order may not be made or allowed because there was no evidence that the person who committed the crimes had made an acquisition. However, it may be shown clearly at a later date that a substantial gain had been made from those activities and that a confiscation order should have been taken out against the individual. It would be appropriate to return to the court with the new evidence that there had been an acquisition and allow it to consider the position.

The hon. Member for Spelthorne referred to people challenging the conviction. There is provision in the Bill to prevent self-incrimination. Under clause 18(6), evidence given by a defendant that he has benefited from his actions is not admissible in proceedings for an offence. If a person were obliged to give evidence about the proceeds of crime, that could not be used against him in respect of further convictions. That is the matter of double jeopardy to which the hon. Gentleman rightly referred. If we are, in effect, obliging disclosure in confiscation proceedings, that will not trigger self-incrimination.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

The Minister said that such an act could not be used in proceedings after disclosure. Could it be used if a further order were sought? I know the distinction between criminal proceedings and the making of an order. Is the hon. Gentleman saying that self-incrimination could not lead to further prosecution or the making of a new order?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I am saying that such evidence could not be used to further a prosecution. I am not saying that evidence gained in a previous confiscation order could not be taken into account in a subsequent confiscation order. Confiscation procedures are separate from criminal procedures that would result in a conviction in the first place or in a conviction being overturned subsequently. It is obviously the defendant's right to seek to overturn the original confiscation.

As for whether subsection (7) allows fines to be taken into account and discounted through confiscation, we must go back to the provisions under clause 6. Let us suppose that, at the original conviction, the court decided to sentence an individual, and subsequently to proceed with confiscation, and, after confiscation, considered whether to impose a fine. Other orders were taken into account in the relevant way under clause 6. Given that we are coming back to reconsideration, it would be inappropriate. Let us suppose that the person was convicted, and, under clause 20, there was no confiscation, but the court then decided to fine the individual. It would have made that decision after a confiscation order had been imposed and taken into account. It is therefore only right to return to that consideration subsequently, look at the fine imposed, and take it into account when deciding on the size of the confiscation.

I do not know what more to say to hon. Gentlemen other than that we believe that it is appropriate that the prosecutor should be allowed to go back in such circumstances, when he can convince the court that there is evidence of an acquisition which, for whatever reason, was not available at the time. In those circumstances, he should seek to confiscate the proceeds of crime. I hope that the hon. Gentlemen will accept that, and support the clause.

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

I welcome the Minister's statement. The procedure, as clarified, allows the court to re-examine the assets of the guilty on multiple occasions. Can he provide further clarification on the question of finality of proceedings? There is a point at which such finality is undoubtedly wanted, but there must be a consideration of what is proportionate. Many people in my constituency and my city suffer the finality of death from overdoses. If someone is dead from an overdose, the period of supervision of a person who has sold, or been involved in the supply of the drugs responsible for that death should not be too brief. The Minister made the point about not being able to go back more than six years. In those circumstances, we are not going back at all—we are going forward. One can go forward only six years from the date of conviction.

It is not unreasonable that if someone has been convicted of such a serious offence he should be on the equivalent of probation for life. If he decides to turn honest, earn money and so on, there is no difficulty with that, but he must be able to demonstrate that he earned his money honestly. If, subsequently, whether 10, 20 or 30 years down the line, that person suddenly appears to have gained an enormous amount of wealth with no trace whatever, and there is strong suspicion that it is the proceeds of crime, there is no reason why the court should not be able to pursue that person, especially given that many of that person's customers, clients and victims are dead, remain dead, have been dead for some time and will continue to be dead for some time to come.

It is a matter of what is proportionate. Families in my constituency and my city have been grieving for a long time, and will continue to grieve. It will be obscene if a six-year limit allows the person who caused those deaths to ride free after that period.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 12:15 pm, 27th November 2001

Let me potentially make the offence even worse. My hon. Friend is determined to brand me with a Mr. Softy title, so let me dampen my hon. Friend's enthusiasm for multiple reconsiderations. It would be difficult for a prosecutor to go back to the court repeatedly, although he would be allowed to do so, to seek further confiscation. Eyes would widen on each occasion. It would not be an effective tool except in the most extreme circumstances. My hon. Friend may remain of the opinion that we are being soft on such people. In respect of the six-year period, we have little choice but to draw the line for criminal confiscation somewhere.

The only point that I can make in mitigation against the image with which my hon. Friend is determined to brand me is that other provisions in part 5 relate to the potential for civil litigation against an individual who, years and years after a confiscation, comes up with huge amounts of property for which he has no lawful explanation. The agency and director would have to examine whether that person could be pursued under part 5 of the Bill for the civil recovery of those assets. However, I am sure that that does not satisfy my hon. Friend and that he believes that we should go much further.

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

The Minister mentioned the difficulties that he has with the hon. Member for Glasgow, Pollok wishing to brand him a softy. Does the Minister agree that the hon. Gentleman is always keen to attack lawyers? However, his policy of constantly returning to the courts could be implemented only if lawyers brought the applications. The hon. Gentleman seems to believe that only defence lawyers are venal and corrupt, when, of course, the same people prosecute and defend.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

There is a dreadful lack of respect in the Committee, and I do not intend to get involved.

Question put and agreed to.

Clause 20 ordered to stand part of the Bill.