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I beg to move amendment No. 174, in page 24, line 2, leave out ‘and other’.
Clause 34 makes provision—which brings me back to my earlier comment—for the court to be entitled to hear from any person.
Subsection (2) of new section 23B states:
“In considering whether to make an order...in respect of any property, a court shall have regard to...the value of the property, and...the likely financial and other effects on the convicted person of the making of the order (taken together with any other order that the court contemplates making).
Since the order is in fact a financial order, what are the “other effects” that the Government consider the court might wish to take into account?
I always like to agree with my hon. and learned Friend the Member for Beaconsfield, but this is one of the occasions when I am jolly uneasy about the amendment. My general rule, as the Committee will know, is to take the libertarian view and I ask myself: what is the impact of the criteria set out in my hon. and learned Friend’s amendment? It seems to me to tighten up the circumstances, against the interests of the convicted person.
I can well comprehend a range of circumstances when “other effects” will go outside the financial effects. If somebody, for example, owns a car—I am sorry to come back to the car, but it is a rather good example—forfeiting a car might not only have a financial effect, but it might preclude a person from being able to live where that person has chosen to live, or go to work, or other such consequences. As the power to forfeit extends to anything—I use the word advisedly, because it is in the language of the statute—I want the court to be able to consider as wide a set of consequences as is possible. [Interruption.] If my hon. and learned Friend is seeking to intervene, I will certainly give way.
I am. My right hon. and learned Friend is doing the Minister’s job for him. These are the matters that I rather hoped that the Minister would put on the record so that they can be waved around in court when, at a subsequent time, people seek to advance the very arguments that my right hon. and learned Friend is seeking to advance here. I was not intending to restrict the scope.
There we are—the Committee is a big tent, because I too am with the libertarian right and the liberal right and the Liberal Democrat centre, or whatever it is. The key point is, if we go back to the imaginary Mr. McNulty, he or his partner may live in the middle of rural Lincolnshire and just have the car for survival and for whatever they can do with that car or van to earn a living. It may well be that the impact of forfeiture on the rest of the family needs to be taken into account and a range of other circumstance could prevail, including seeking and maintaining gainful employment.
I am very glad that the Minister has mentioned the effect on the broader family as it is not explicit in the Bill—the court can take into account only the effect on the offender. Can he assure me that it can be construed as meaning also the effect on the family?
I should love to show off and reel off a whole bunch of case law rooted in the Powers of Criminal Courts (Sentencing) Act 2000, which as I described earlier is exactly the architecture that much of this forfeiture regime comes from. We feel that having “and other” in there is precisely broadly enough drawn to take into account all such circumstances, as the right hon. and learned Member for Sleaford and North Hykeham and, to be fair, the hon. and learned Member for Beaconsfield seek to imply. We think that amendment No. 147 runs counter to the establishment of an effective and fair regime with appropriate safeguards within it.
I apologise. Amendment No. 174 runs counter to a fair and effective regime with the appropriate safeguards, and I would ask the liberal right to withdraw the amendment and come with me and the libertarian right.
This was always a probing amendment. Having recorded in Hansard at Committee stage both the scope of what the expression “and other” will mean and, even more helpfully, the suggestion that it extends beyond the immediate impact on the individual concerned to those who are dependent upon him—as I believe it does—I beg to ask leave to withdraw the amendment.
I am sorry to come back to the imaginary Mr. McNulty, because I know that the real Minister is a little exasperated by this. However, I remain very concerned about the position of innocent third parties. I took the liberty of tabling an amendment. I know that it is starred, because it was put down late, but it is an attempt to set out the protection that I think should be given to innocent third parties.
I have read the Proceeds of Crime Act 2002 and the relevant provisions in the Misuse of Drugs Act 1971, and I am perfectly willing to accept that the provisions set out in the Bill are broadly in line with those provisions. However, I ask myself a basic question: are the interests of the innocent third party properly safeguarded by the provision in new section 23B(1), which, in my view, is the key part of clause 34? I think that the honest answer is no. Nothing is said about the burden of proof or the standard of proof, and nothing actually sets out the criteria that a court has to adopt.
The Minister may well say that there is a body of case law arising from, for example, POCA or the Misuse of Drugs Act, and that the courts need no further guidance, but I find that a profoundly unsatisfactory explanation for two reasons. First, it seems to me that the citizen—the ordinary chap; the imaginary Mr. McNulty—is entitled to know what the law is by looking at the relevant statute without having to go to a body of case law to which, in reality, he will not have access. Secondly, although, at common law, we have long accepted judge-made law, and although it is inevitable that a majority of law is judge-made law, in the sense that statutory interpretation has to be in the hands of the judges, we parliamentarians should set out the tests and the criteria if we have the opportunity to do so. Here, we have not set out the criteria that address the question and we are relying instead on judge-made law from the past. Frankly, I do not think that is satisfactory. Given the opportunity, Parliament should set out the criteria and tests. If there is then ambiguity or uncertainty, the judges will have to interpret that. Simply shrugging off the responsibility seems to me to be profoundly unsatisfactory. We are not doing our job of safeguarding the innocents—in this case, the imaginary Mr. McNulty.
I do. We touched on this matter last week. I understand why the right hon. and learned Member for Sleaford and North Hykeham wished to table his amendment, but it is unnecessary. If we followed his exhortation, we would have some quite large Bills. I do not believe that there is any ambiguity in the surrounding architecture of this or any other clauses in the Bill that relate to existing statutes, common law provisions or case law. It goes without saying that it is for Parliament to pass laws—good laws. Given that we already have the provision elsewhere and, as far as I can see, it has worked satisfactorily, and given the provision in the ECHR and the other oversight and safeguards that I described, new section 23B(1) makes it very clear that there is role for at least looking at claims of ownership from third parties regarding forfeited assets.
As the right hon. and learned Gentleman implies, the provision mirrors similar protections in the Proceeds of Crime Act, and Parliament did not consider, when passing that Act, that an amendment such as that which he is suggesting was necessary. It was not necessary then and I do not believe that it is necessary now. The safeguards already exist. It is not necessary to legislate in such explicit terms to prevent the courts from unjustly punishing innocent people. If we were considering the amendment—if it were not starred—I would argue that it was otiose, unnecessary and irrelevant. As was the case last week, I take the thrust of the right hon. and learned Gentleman’s argument, but I do not believe it is necessary to reflect that in the Bill.