Clause 99 - Assumptions as to benefit from

Proceeds of Crime Bill – in a Public Bill Committee at 10:30 am on 6 December 2001.

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Mr. Foulkes: I beg to move amendment No. 150, in page 58, line 3, leave out 'may' and insert 'must'.

The Chairman: With this it will be convenient to take the following: Government amendments Nos. 151 and 152.

Clause stand part.

Government amendments Nos. 161, 162, 173, 179 and 185.

Mr. Foulkes: Amendment No. 150 places a requirement on the court to make the various assumptions set out under the clause as to benefit from general criminal conduct. Amendment No. 152, however, makes it clear that the court must not make the assumptions if there would be a serious risk of injustice if it did so.

Amendments Nos. 161 and 162 place an obligation on the prosecutor when he or she believes that there would be a serious risk of injustice if the court made an assumption under the clause to provide information that he or she believes is necessary to enable the court to decide on the matter. That reflects the provision in clause 17.

Amendment No. 173 imposes a requirement on the court to proceed under clause 94 in respect of reconsidering a case when no order was originally made. That reflects the provision in clause 20.

Amendments Nos. 179 and 185 respectively impose a requirement on the court on the application of the prosecutor to reconsider benefit if no application has been made under clause 95, and to reconsider benefit when an order has been made but more benefit has come to light.

Mr. Wilshire: I remain concerned about amendment No. 152. Every time I come across the phrase ''serious risk of injustice'', I get nervous. Either we are in favour of injustice or we are against it, whether it is serious or minor. Will someone on the Government Benches explain why it is permissible to allow minor acts of injustice in Scotland, whereas serious injustices are not to be allowed? The word ''serious'' should not be included. It should read ''a risk of injustice''.

Mr. Grieve: My hon. Friend is right. In earlier debates, the question whether the word ''serious'' should appear was one of the matters that was discussed.

Mr. Wilshire: I am aware of that, and I was nervous about it at that stage. I am not sure that people in Scotland would be pleased to know that, just because somebody has decided that Scots law needs to conform, they will be lumbered with a situation in which minor injustices are to be ignored and tolerated.

Mr. Carmichael: I respectfully suggest to the hon. Gentleman that he should read the amendment again. It refers to a serious risk of injustice not a risk of serious injustice, which is what he appears to be talking about.

Mr. Wilshire: If I am talking about two separate things, I am against both of them. I do not understand why the word ''serious'' should appear anywhere. I simply make the point that I do not believe that, if the Scots people were consulted on the matter, they would want minor injustice to be tolerated in Scotland for the sake of conformity with the rest of the country. Just because it is tolerated in England does not mean that we must foist it on Scotland.

Mr. Mark Field: I wonder whether my hon. Friend might have some thoughts, as he may know more about the Scottish legal process than I do, on whether there is a potential difference in the meaning. I appreciate that many of these debates are about the real meaning of words. Given that there is a not proven verdict in criminal law in Scotland, does that have an impact on the use of the word ''serious'', which we should investigate in more detail?

Mr. Wilshire: There are few certainties in this world, but one is that I know less about Scots law, or any law, than my hon. Friend. I would not therefore presume to go down that route. No doubt there is a Scots lawyer here who might be able to help.

Mr. Carmichael: I do not think that the not proven verdict has any bearing on the question of serious risk of injustice or risk of serious injustice. I share some of the concerns that the hon. Gentleman seeks to articulate, but I reiterate that we are talking about the risk being serious rather than the injustice. He keeps talking about minor injustice and serious injustice, but that is not what the amendment says.

Mr. Wilshire: I take the hon. Gentleman's point. I have made my point. Equally, we should be discussing any risk, not serious or minor injustice. Either way, the word ''serious'' should not appear. I will be interested to hear the Minister's response.

Mr. Foulkes: This matter was discussed extensively under part 2. The hon. Member for Beaconsfield powerfully—if not convincingly—made many points to which my hon. Friend the Under-Secretary responded. I understood that earlier in our proceedings the hon. Gentleman wisely said that he did not intend to revisit matters that were extensively discussed in part 2. However, as the Opposition Whip has raised the matter, I should say that the word ''serious'' means exactly the same in Scotland as in England.

Mr. Grieve: The Minister is right that I do not wish to revisit the matter. In any case, I would hardly oppose the amendment to clause 99 because that would remove the only safeguard in the legislation after we have changed from the discretionary to the mandatory system. We will address the matter on Report when we revisit it across England, Wales, Scotland and, if necessary, Northern Ireland.

Amendment agreed to.

Amendments made: No. 151, in page 58, line 22, after 'if', insert '(a)'.

No. 152, in page 58, line 23, at end insert

', or

(b) there would be a serious risk of injustice if the assumption were made.'.—[Mr. Foulkes.]

Clause 99, as amended, ordered to stand part of the Bill.Clause 100Effect of order on court's other powers