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I beg to move amendment No. 137, in page 44, line 18, after `offence', insert
`punishable by a term of imprisonment or a fine of level 2 or above on the standard scale.'.
We touched on this subject in an earlier sitting, when we discussed what constituted a ``criminal lifestyle'', issues to do with ``general conduct'', and the powers under clause 6. That seems a long time ago.
Clause 6(2) states the conditions that a defendant must satisfy if the Crown court is to proceed. As matters stand, the prosecutor has the discretion to request the magistrates court to commit a defendant to the Crown court with a view to making a confiscation order. He has entire and complete discretion, and the purpose of the amendment is to fetter that discretion.
I drafted the amendment to try to reduce to what I regard as a minimum the sorts of offence that would not fall under the discretion of the prosecutor. The offence should be
`punishable by a term of imprisonment or a fine of level 2 or above on the standard scale.'.
Level 2 is the second lowest level of fine available to a court; the scale does not go in reverse order. I do not want a long repetition of our arguments about clause 6, but I suggested the amendment because it would ensure that offences dealt with by the magistrates court that were of little consequence did not lead to an invocation of the procedure. I suspect that that is most unlikely to happen in practice, anyway.
As we discussed earlier, I have concerns about the extent of the powers and whether they will bite on those who have committed offences that most people would regard as minor. I am aware of the Minister's point about what I call the Al Capone clauses—despite my French background, it was the hon. Member for Glasgow, Pollok (Mr. Davidson) who pointed out that it is pronounced Al Capone. They provide the Government and the law enforcement agencies with a useful tool for taking assets from someone who has committed a minor offence. None the less, I am concerned about the issue and I think that we should be realistic about it.
As we are casting our net so wide, I question whether it should be at the discretion of the prosecutor to decide whether every category of offence for gain could lead to committal to the Crown court for confiscation proceedings. We can, without changing the criterion of ``criminal lifestyle'', ensure that those who are convicted of minor matters in magistrates courts are not committed to the Crown court on the prosecutor's whim.
The hon. Gentleman is right to say that we have had this conversation before. The amendment would prevent the prosecutor from having a case referred to the Crown court for confiscation unless the offence attracted a penalty of imprisonment or a fine at level 2 or above on the standard scale. The Committee will recall that the Government consider it a point of principle that confiscation should be available after conviction for any offence. We do not want to chase small amounts of money around, but as I have tried to indicate to the Committee, it is not necessarily the scale of the crime that dictates the level of profit that has been made as a result.
The main advantage of providing a threshold is that we would target more serious criminals. The main worry, however, is that we would provide a loophole through which those serious criminals would be only too clever, and only too quick, to climb. The clause is intended as a catch-all provision to ensure that any case that a magistrates court may not be sending to a Crown court can be sent there anyway, for confiscation to be considered. The amendment would restrict the circumstances under which that could be done. I ask hon. Members not to go down that route, for the reasons that I have just given, and for the reasons that I gave before. We could not do that without providing loopholes, and the amount of remuneration is not in any way aligned to the seriousness of the offence.
As the Minister will be aware, I have tried to approach the matter at this stage of the Committee's discussion differently from the way in which it was approached when we discussed clause 6. Under clause 6, we considered it in relation to magistrates court convictions or either-way offences. As the Minister will appreciate, I have attempted, having taken on board the comments about the Government's issues of principle, to try to find a common meeting point.
I appreciated the Minister's point about either-way or summary offences only, which is why, as I hope he will understand, I came up with this formula. Essentially, the people who would escape would be individuals who had committed offences that attract penalties at level 1 on the standard scale. I seem to recollect—perhaps I will be corrected—that level 1 on a standard scale is £100. We are therefore considering offences that attract fines of up to £100—a category consisting of what I would describe as small-scale administrative offences. I would have thought that that would be a better cut-off point than providing a completely unfettered power.
Ultimately, I suppose that this is an issue of principle. The Minister has fairly put the Government's point, which is that anyone in this country who commits a criminal offence should enter a parallel world in which all sorts of unpleasant things can be done to them. I dare say that the Minister regards that as socially desirable for the prevention of crime. However, the alternative way of looking at it is that we are giving considerable powers to law enforcement agencies, which are extensive, novel to a certain extent, and an infringement of some of the usual rules that have been applied to criminal justice in this country hitherto. That is especially so, as I shall remind the Minister, because later in the Bill a completely different regime is introduced, which allows somebody who has never been convicted of an offence to have proceedings brought against him for the confiscation of his assets under a civil recovery system. This is therefore not an ``all or nothing'' situation. The issue is the extent to which somebody who has a minor conviction or a series of minor convictions that attracted three penalties of £100 might be subject to that process. In those circumstances, it is right that the line is drawn somewhere, because otherwise, I fear that there might be a public perception that in an effort to fight crime, we were producing injustice. It is difficult to know where the line should be drawn.
I do not want to go back over old ground, but is the hon. Gentleman seriously telling us that if two individuals are suspected of hoarding ill-gotten gains, we should have the right to pursue the individual who commits a crime subject to level 2 punishment, but not the individual whose offence attracts a level 1 punishment?
No, I am not. As I have already said, the novel aspect of the new regime being introduced by the Government is that civil proceedings can be brought against a person who has never had a criminal conviction. I do not think that I had better ask for confessions in Committee, especially from those of us who drive motor vehicles. Despite many years of driving, I am in the fortunate position—touch wood—of not having any criminal convictions in relation to that. However, if I asked for confessional statements from members of the Committee, some might fall within the category of having a previous criminal conviction. Furthermore, some members of the Committee might even fall within the category of appearing to have a criminal lifestyle. Criminal lifestyle is based on convictions for gain and people benefiting from certain conduct. It you drive without a light on the back of your car, it could be argued that you have benefited from the fact that you did not replace the bulb.
Order. My car has a clever device that tells me what is happening to the light. Moreover, the hon. Gentleman is inadvertently steering dangerously close to calling the honour of members of the Committee into question. He must not do that.
I do not wish to stray too far from our topic, Mr. McWilliam, but I am not the person who has to define a ``criminal lifestyle''. When we debated the matter, I said to the Minister that it was an unhappy phrase and could sensibly be replaced with different phraseology. I am still waiting with bated breath to hear what he has to say about that.
The Minister is right. I am still thinking about the problem, and will discuss it further with my hon. Friends.
The criminal lifestyle provisions could cover someone who has a conviction for not having a rear light on his vehicle. Where should the line be drawn? Should it be said that any criminal offence makes it possible for someone to be committed by a magistrates court at the request of the prosecutor, or should a slightly higher test be imposed to exclude matters in respect of which such action might be considered unfair?
The hon. Gentleman has come pretty close to saying that in practice such issues will not arise. In the main, we are having an academic argument. He has not dealt with what I said about the potential for creating loopholes that neither he nor I want to create.
I appreciate the Minister's point, but would we be creating loopholes? If he were not including the civil recovery provisions in the Bill, I would accept his case. If we did not have those, the only way to recover assets from people believed to be criminals would be if they fell into the ``criminal lifestyle'' category. The Minister would then have a more compelling argument that every category of criminal offence, however small, should be a trigger either to committal by the magistrates court or for an assessment of criminal lifestyle when the case reaches the Crown court.
I accept that. It would be a powerful argument. However, that is not the position because the Government have chosen to offer an alternative avenue. One must consider the difference between the two avenues. The civil recovery procedure—it works only on the balance of probabilities, although we will examine that in due course—involves an ordinary civil action with the burden of proof placed on the director or other person who brings the application to prove the case against the individual. However, under confiscation provisions, the burden of proof is reversed. It is as simple as that. Because of the reversal of the burden of proof, we have a draconian sanction. The underlying justification for that, which the Minister half accepted, because he said that the matter would not arise in some cases, is that such a person is already deeply tainted with criminality.
I am trying to highlight individuals. I pick up your point, Mr. McWilliam, about casting aspersions on the honour of hon. Gentlemen—
And ladies—I meant aspersions on hon. Members.
There are some transgressions in everyday life about which those of us who have not experienced them may say, ``There but for the grace of God go I,'' and count ourselves fortunate. We may not believe that, following such transgressions, a person is tainted with criminality as a result. However, because of the Bill, such people could fall foul of draconian provisions. In such circumstances, we would rely on the benevolence of prosecutors—and perhaps ultimately the state.
In connection with the Bill and other legislation, we are told that people who have done nothing wrong have nothing to fear. However, I cannot guarantee that the Minister will be in office for ever, that the present Lord Chancellor will personally hold his office for ever, or that the Labour party will be in political office for ever. We cannot see into the future, but naturally, I hope that when the Conservative party returns to office, we will have standards of fairness and probity equal to the Government's. I dare say that the Minister would almost acknowledge that that would be the case.
We cannot see into the future, and we are giving powers that could be exploited by those who wish to abuse them. That is the justification for the amendment. I do not wish to take more of the Committee's time on this matter, but it is fundamental. The Minister stated his case, and I can only state mine. I must press the amendment to the vote.
Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 12.