Clause 44 - Appeal to Court of Appeal

Proceeds of Crime Bill – in a Public Bill Committee at 9:45 am on 29 November 2001.

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

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

Members of the Committee will be aware that my colleagues and I tabled an amendment to clause 44 that was not selected for debate. That immediately makes me suspicious that perhaps I have completely missed the point—

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. The clause stand part debate should not be used as an excuse to reintroduce a non-selected amendment. There is a good reason why that amendment was not selected.

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

That will immediately become apparent when I raise my concern.

The clause allows for an appeal by an agency of the state. It also allows for an appeal by

``any person affected by the order.''

Presumably, that would be the defendant or a third party. The clause allows for them to appeal against an application for discharge or variation, or an order under clause 42(7) made to ensure that a restraint order is effective. However, it appears to me that it does not allow for an appeal against the restraint order itself by any person affected by that order. That is wrong—but I might have horribly misunderstood the clause. I would like the Minister to clarify the matter.

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

I wish to make the same point. It is of concern to me that the provisions of the Bill restrain the ability of a defendant to appeal against decisions. It is unfortunate that the Committee did not get a chance to discuss that matter in relation to clause 32—because we did not reach it.

If I understand clause 44 correctly, it is possible for the defendant to appeal, but only after he has made a further application for the variation or discharge of the order. It is important that the system is fair, and I want the Minister to explain why it has been thought necessary to introduce that fetter.

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

The inevitable consequence is that an aggrieved party will make an application for a discharge or variation simply to gain access to an appeal. That does not make sense.

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

I agree that there is a risk of that happening. If someone wishes to appeal the order, they will have to go through that process. It might therefore be simpler to offer an immediate avenue of appeal, rather than those two stages.

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

I agree wholeheartedly that it is a shame that we did not manage to discuss clause 32. However, I remind the hon. Gentleman that we had extensive discussions about the timetable motion, and that there is a great desire on the Government side of the Committee to take on board any knowledge that he can bring to our proceedings that helps to improve the legislation. If he could have a word with his Whip, that might be helpful, as the Committee might then be able to scrutinise the Bill better, and we might wind up with better legislation. But if he plays the game of deliberately preventing the timetable motion from working, we will not be able to debate important clauses, and he will not have the chance to discuss those issues. His complaint should be made in a different direction.

There is a general right of appeal against any order of the High Court, under section 16 of the Supreme Court Act 1981. It applies to restraint orders made by the High Court at present, and orders ancillary to them. However, the general right of appeal in the 1981 Act does not apply to the Crown court. It has therefore been necessary to create a specific right of appeal in the Bill in relation to restraint orders made, or not made, by the Crown court.

As the hon. Member for Orkney and Shetland rightly points out in referring to his amendment that was not selected, there is no right of appeal against a Crown court's decision to make a restraint order. The appeal lies only against the Crown court's decision to vary or discharge an order, or not to do so. A person who is dissatisfied with a restraint order can in the first instance apply to the Crown court for its variation, and subsequently, if he is unhappy with the refusal to vary it, appeal against that decision. I do not know why the hon. Member for Orkney and Shetland regards that as a big problem. We would have thought that it was most sensible to specify that the Crown court is the place for people to request a variation with a right to appeal against the Crown court's refusal to make a variation, rather than automatically kicking the right of appeal.

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

I am acutely aware that I am blundering through English civil and criminal procedure, in which I have no qualification, practice or expertise. However, I would expect an application for variation or discharge to proceed as a matter of fact, and a point of appeal to be on a point of law. For that reason, I believe that an application for variation or discharge would be inappropriate. Indeed, if that were the point to be taken on appeal, the appeal would be unsuccessful.

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

I am no greater expert than the hon. Gentleman, but we want such issues to be dealt with in the Crown court, and as I said, we believe that if people are unhappy with the confiscation order, that is the first place in which to make their complaint.

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

Will the Minister confirm whether the appeal will be on a point of law? That is crucial, because if an appeal will be allowed only on a decision to vary or discharge an order, if it is restricted to a point of law, all that the Court of Appeal will consider is whether the decision to vary or discharge as a matter of law was correct.

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

I can now inform the hon. Gentleman that the appeal will be not on a point of law only, but on a refusal to vary or discharge a confiscation order.

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

I respectfully ask that perhaps at a later stage the drafting of the Bill might be altered to make that an express provision.

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

I undertake to consider whether that is necessary.

Question put and agreed to.

Clause 44 ordered to stand part of the Bill.

Clauses 45 to 48 ordered to stand part of the Bill.