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Mr. Stinchcombe: Is it not right that the judge would have some discretion to prevent such proceedings from commencing? The second condition includes the words

to carry on.

Mr. Grieve: No, the hon. Gentleman is mistaken. Were the matter left to the court, it would have that discretion, but if the prosecutor or the director made such a request of the court, it would not. I appreciate his point, but the second condition says

It does not use the word "and".

Mr. Stinchcombe: I think I said that the judge has some discretion and that the provision includes the power

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for the court to rule that it is not appropriate to commence. The only point that the amendment attacks is the discretion of the prosecutor or the director also to ask the court to proceed. It contemplates the director asking the court to proceed even if he thinks a serious risk of injustice is present. Surely that is counter-intuitive.

Mr. Grieve: I hope that, in my time as a prosecutor, I tried to act fairly, but the duties of a prosecutor or a director and those of the judiciary are somewhat different. I think most people hope that they have a fair prosecutor, but I trust that they look to the impartiality and good sense of the judiciary to prevent injustice. I would normally look to the powers of judges in that regard.

8 pm

Of course, such powers exist in a multiplicity of areas in judicial proceedings. In criminal proceedings, judges can stop cases. They can direct juries to return verdicts of not guilty. Those are substantial powers, which I have watched being invoked. It seems to me that, in such circumstances, giving the judiciary that power in no way detracts from the thrust of the legislation.

Amendment No. 41 deals with a completely different issue, which we did not tackle in Committee and to which I was oblivious at that stage. The amendment would make confiscation impossible if the benefit involved had already been forfeited. I am grateful to a professor of academic law at the University of Cardiff for bringing the matter to my attention, albeit too late for it to be considered in Committee.

A recent House of Lords decision—in the case of R v. Smith (David Cadman) 2001—had a surprising result. Let us suppose that cigarettes worth £200,000 are imported illegally into the United Kingdom and are seized at the port concerned. Let us suppose that those involved are forced to pay the duty, and that confiscation proceedings are then brought and a further £200,000 is demanded—as it would be under the Bill, as proceeds of crime.

With all due respect to their lordships, I find that a rather surprising concept. It is, in fact, a process of double recovery. I do not understand how the second amount can constitute the proceeds of crime when the proceeds of crime have already been confiscated, and I do not understand how, in that case, the amount can be recovered. It seems to me that a measure that, it should be remembered, related to the precise issue of smuggling rather than the wider issue of criminality could lead to unfairness.

The House and the Minister may, of course, wish such unfairness to continue. Let me point out to the Minister, however, that as a result of the Bill it may not just continue but be enormously widened. In many instances, people whose drugs worth £2 million are confiscated will be told "The proceeds of the crime are also worth £2 million. Pay up". Those amounts will relate to a single offence.

Mr. Garnier: I too have read the paper by Professor Peter Alldridge of Cardiff university, and I find the arguments very persuasive. During the Committee's consideration of clause 8, did the Government come up with their own definition of "the defendant's benefit"?

Mr. Grieve: There was undoubtedly discussion of what constituted the benefit, but it was based on the existing

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rules. There was no discussion of the impact of the court decision to which I have referred. It was not mentioned at any point. In fact, I must plead guilty to complete ignorance of not just its impact, but the consequence of widening the principle contained in it to the much wider issue of proceeds of crime generally.

I found the arguments of the Judicial Committee surprising, and I feel that Parliament should consider whether this is what it really intends. If we follow such a route, the matter may well not stop at the Judicial Committee; I suspect that it will end up in Strasbourg. Surely saying that, although the proceeds of a crime have already been confiscated under another provision, they will be confiscated again under the Proceeds of Crime Bill is nonsensical. I hope that the Minister will use the few minutes that remain to tell us whether that curiosity will be continued.

Mr. Carmichael: Of necessity, I shall be brief.

A number of amendments have been tabled by Liberal Democrats, including me. Under amendment No. 216, before seeking reconsideration of the benefits, the prosecutor must have new evidence that was not available when the court decided the amount of the accused's benefit for the purposes of a confiscation order. Such a procedure should be used in appropriate circumstances, and the amendment would avoid ambiguity.

Amendment No. 205 would ensure that the statement of information became an integral part of the assessment of the case, rather than something produced after the court had decided whether or not to proceed.

We agree with the hon. Member for Beaconsfield (Mr. Grieve) on amendment No. 39. It, along with the latter part of our amendment No. 205, would reintroduce to the courts some degree of discretion in the determination of the appropriateness of proceeding.

The right hon. Member for Wokingham (Mr. Redwood) spoke of legislating by soundbite. I fear that our desperate drive to emasculate the courts and fetter their discretion will produce bad legislation. The proposals in amendments Nos. 39 and 205 are modest, and even at this late stage I ask the Minister to reconsider.

Mr. Garnier: I want to speak briefly on amendment No. 41, and to support my hon. Friend the Member for Beaconsfield (Mr. Grieve).

My hon. Friend referred to the case law in Smith. The question of law certified by the Court of Appeal as being of general public importance for the House of Lords to consider was whether an importer of uncustomed goods who intended not to enter them for customs purposes and not pay any duty on them derived a benefit under section 74 of the Criminal Justice Act 1988 through not paying the required duty at the point of importation, where the goods were forfeited by Customs following importation, before their value could be realised by the importer.

The House of Lords said yes. There was only one speech, delivered by Lord Rodger of Earlsferry, a Scots judge. It was noteworthy for its commitment to a harsh approach to the confiscation legislation. He held that the subsequent fate of the cigarettes was irrelevant to the confiscation order. If they had been lost, liability to pay duty would remain. That they were seized was likewise irrelevant.

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Are the Government aware of that case, and are they passing legislation deliberately in the knowledge of that decision?

Mr. Foulkes: The list of amendments looks formidable, but many are technical. A number are drafting amendments, and a number bring Scotland into line with England and Wales. Amendments Nos. 39, 146 and 147, however, would require the court not to proceed with a confiscation hearing if it considered that there would be a real risk of injustice if it did so. I am afraid that the amendments run counter to the philosophy underlying the Bill, which is that recovering the proceeds of crime never involves any injustice.

The Bill specifically makes provision for the court not to make the statutory assumptions, but that is a different matter. Nobody is disputing that making the assumptions may occasionally present a serious risk of injustice and the Bill provides for that. That is not the same thing as a blanket provision that suggests that it may be unjust to proceed at all. If the purpose of the amendments is to suggest that recovering criminal proceeds is inherently unjust, I am afraid that I and my colleagues cannot share that viewpoint. I hope that the hon. Gentleman will withdraw the amendment.

Amendments Nos. 41, 150 and 151 would require the court to investigate whether any benefit of the defendant's had been recovered by means of any other power or enactment. We understand the spirit behind the amendments but, at the same time, we do not think that the approach is correct. The thinking underlying the amendments is clearly that the same benefit should not be confiscated twice. In fact, the Bill already makes provision to prevent this from happening at clauses 9(3), 97(3) and 165(3). However, I invite Opposition Members to send us details of the matters they have raised. We will consider them and see if any changes would be appropriate in the light of new evidence or circumstances. I hope that they will find that helpful.

Amendments Nos. 80, 269 and 178 are straightforward. They give the prosecutor in all three jurisdictions, and the director in the case of England and Wales, the right to be heard at all applications for time to pay or an extension of time to pay a confiscation order. That seems to us sensible, because there should be a counterbalance to the submissions of defendants who will often try to avoid payment by stalling for time.

Amendments Nos. 204 and 205 are unnecessary. The prosecutor's statement that sets out the Crown's calculation of an accused's proceeds of crime and of his assets will always be served upon a convicted person and lodged with the court. Accordingly, the court will always have before it a prosecutor's statement. Amendments Nos. 212 and 215 are consequential and, therefore, equally unnecessary.

The remaining Government amendments are either drafting amendments or bring Scotland into line with England and Wales. I will not cover them in any great detail.

Amendment No. 216 relates to proceedings held to consider increasing a confiscation order. It would prevent the prosecutor from deploying evidence at a hearing of this kind if it has been made available to the prosecutor when the confiscation order was made. It is rather odd that this proposal differs from the other reconsideration

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clauses in allowing the prosecutor to use evidence that he or she has not previously deployed. I agree that Opposition Members have a point with this amendment. I am glad to be helpful to Liberal Democrats—not often, but occasionally.

I am reluctant, however, to bring the clause into line with the others until I am clear why it is being treated differently. There may be good reason for the difference, but it is not immediately obvious. However, on the understanding that I am willing to give the point further consideration and that we will return to the House when matters have been clarified further, l invite hon. Members not to press the amendment.

I hope that I have answered the points in relation to amendments Nos. 39 and 41. I have resisted amendment No. 39, but I have been helpful on amendment No. 41. I hope that, on balance, the hon. Member for Beaconsfield will not press any of his amendments.

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