Absolutely so, and specific to Northern Ireland. As I have said to the Committee, in quite rightly looking at the dismantling of the assorted security and terrorist legislation in Northern Ireland, and given the peace process, the Government have sought to learn from those experiences and see how we can improve our legislation, if we think the legislation should be translated into a UK dimension.
It should also be pointed out that the civil standard of proof is required in testing whether there has been unlawful conduct such as to bring into play the proceedings for recovery and confiscation of assets under the Proceeds of Crime Act 2002. Clearly, however, giving the courts this power needs to be balanced by appropriate safeguards to prevent assets being unfairly removed either from the convicted person or from innocent owners, such as the imaginary Mr. McNulty. Such safeguards do exist, and with your indulgence, Mr. O’Hara, I will run through them now, as they are germane to the amendment as well as to the overall clause.
First, the court must still have before it all the necessary evidence in order to make a full and proper investigation into the prosecution's application. This is established in case law with R v. Pemberton 1982, and applies to all court orders for deprivation and forfeiture of assets. The court must also act in a way that is compatible with the European convention on human rights, in particular article 8, the right to respect of private and family life, home and correspondence, and article 1 of the first protocol, the right to peaceful enjoyment of possessions.
The Bill provides greater safeguards than the forfeiture provisions in the 2000 Act and new section 23B(2) provides that the court must also have regard to the value of the property and to the
“financial and other effects on the convicted person of the making of the order”.
Given those safeguards, the existence in other legislation of a similar standard of proof when considering deprivation of assets, and the need for a fully effective forfeiture regime, amendment No. 173 is not necessary and I would ask that it be withdrawn.