Proceeds of Crime Bill

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The Minister of State, Scotland Office (Mr. George Foulkes): A criminal.

Mr. Grieve: Yes, but criminals come in all shapes and forms. There are not only chaotic shoplifters but, as I said on Second Reading, middle-aged shoplifters perhaps undergoing a nervous breakdown, which is not uncommon. Such people could fall within the provisions, but it is cryingly obvious that although they may have been convicted of an offence, its surrounding circumstances do not warrant any confiscation.

The Minister will say that the prosecutor and the director can exercise discretion and that if it is a summary only offence, the magistrates themselves can exercise discretion. The Minister will tell me if I am wrong. Under clause 70(2)(b), however, the magistrates court

    ``may commit him to the Crown Court in respect of any other offence falling within subsection (3)''.

I may have misunderstood it and the prosecutor could ask for committal to the Crown court irrespective of whether it is a summary only offence. Will the Minister clarify that? I noticed his look. If I have misunderstood it, the provisions are even wider than I had appreciated.

The Minister must focus on who exactly the provisions are aimed at. The Bill will not terrorise or deter the chaotic small-scale criminal. The deterrence will work on those tempted to carry out criminal conduct for gain because their gains can be latched on to for confiscation. The chaotic criminal would already have got rid of the proceeds of crime, long before he is brought to court, arrested or investigated.

Mr. Hawkins: With an eye to later debates, I should like to tell my hon. Friend that as soon as he mentioned criminals taking part in offences for gain, both Ministers started nodding vigorously. It was important to note that, in case my hon. Friend had not spotted it.

Mr. Grieve: I am grateful to my hon. Friend, although I had noticed it. His intervention allowed me to check the position under clause 70, and I realise that I was mistaken. Offenders are all susceptible to being sent to the Crown court. The point is that summary offences attached to them can be sent as well.

Mr. Foulkes: Will the hon. Gentleman advise the hon. Member for Surrey Heath (Mr. Hawkins) that when he looks at whether my head is nodding, he should also look at whether my eyes are open or closed?

Mr. Grieve: If I continue much longer, I can guarantee that the Minister of State will be past the nodding stage, so I will not prolong my comments.

I want to know what is intended, because it seems that we are over-egging the pudding.

Mr. Davidson: I will follow the points made by the hon. Member for Orkney and Shetland on chaotic lifestyles. As I promised this morning, I have reflected—not repented—and I have some sympathy for people with chaotic lifestyles, because there are many in my constituency. Also, I have always believed that a tidy office is the sign of a sick mind.

I refer the hon. Gentleman to clause 8(2)(b), which seems to allow the court to select a nominal amount. The court will have discretion on how much it seeks to recover. Even when the amount of stolen money or property is not available, it can still make a charge, even if it is nominal. If I understood him correctly, that covers his point. On methods, does the Minister believe that there is anything in the fine collection system from which lessons can be learned? The National Audit Office and others are examining the fine collection system to see whether improvements could be made, so perhaps that could be applied to our circumstances. That might be helpful.

Finally, I now have a greater understanding of the difference between the Liberals and Conservatives. Earlier today, the Conservatives spoke to us in Latin and the Liberals spoke in French. Deja vu, as I understand it, is a house with an outlook across a deja. We have no dejas in Pollok, but clearly they are common in Orkney and Shetland.

Ian Lucas: I hesitate to follow that, Mr. Gale.

The Chairman: Don't.

Ian Lucas: It is important to recognise that the process is initiated by the prosecutor in a magistrates court. That prosecutor will examine the particular individual with whom he is dealing and then make a considered decision about whether the case is appropriate for committal to a Crown court for a confiscation order. It is unlikely that the prosecuting authorities would create a situation in which a vast number of cases are committed to the Crown court. The measure is appropriate because a relatively minor offence—although six months' imprisonment is a serious punishment, and is dispensed regularly by magistrates courts—may be committed by an individual who has committed a long series of offences over a substantial period and secured considerable criminal benefits.

Mr. Bob Ainsworth: The amendment would prevent a Crown court from making a confiscation order of any kind after a conviction in a magistrates court. Its effect would not be confined to preventing the use of the assumptions procedure for such a conviction. The Bill allows the Crown court to make a confiscation order when a person is committed by a magistrates court for sentence or committed for confiscation on the request of the prosecutor. If the amendment was accepted, the Crown court could make a confiscation order only where it had convicted a person for one or more indictable offences.

It would be helpful if I explained the important background to the clause. The issues are important because they reverberate through the Bill. As some members of the Committee will know, modern confiscation in this country began with the Hodgson report of 1984 on the proceeds of crime and their recovery. That committee operated under the auspices of the Howard League and its recommendations were given serious consideration by the Government of the day. It is worth recalling what that committee considered should be the scope of the confiscation power.

The committee obviously took account of serious crimes such as drug trafficking and other offences involving serious dishonesty or trading in prohibited goods. However, it was also particularly exercised about

    ``contraventions of regulations that involve little or no public obloquy but where the profits made from the offence far outweigh, in many cases, any penalty exacted.''

The report considered whether it would be possible to limit confiscation to serious crime but the committee rejected this view. It considered that a restriction to serious crime would exclude many profitable regulatory offences that it thought should be included. It went on to say that a consequence of its thinking was that the magistrates court should be able to commit cases for confiscation where the offence could at that time be tried only summarily.

Criminal confiscation of the proceeds of non-drug crime has always covered the proceeds of some purely summary offences. The Criminal Justice Act 1988 empowers the magistrates court to make a confiscation order following conviction for an offence specified in schedule 4 of the Act, including certain purely summary offences, and there is a power to add others to the schedule. The Government believe that a decision to move away from the coverage of summary offences would be a negative and retrograde step.

I find unacceptable in principle the exclusion from confiscation of any class of criminal conduct. Apart from the practical possibility of significant proceeds being derived from some summary offences, that would be tantamount to saying that we have no objection to offenders retaining the proceeds of their crimes.

Mr. Hawkins: I understand the Minister's argument. Will he reflect on the fact that all hon. Members who have had dealings with drug-ridden estates, whether as Members of Parliament, legally qualified people or in whatever role, know that three levels of people are broadly involved? First, there are the Mr. Bigs, who are almost never addicted themselves. Secondly, there are many people who, while themselves addicts, could also be prosecuted as drug traffickers because they are involved in the business as a way of funding their drug habit. Lastly, there are the pure addicts—the pure victims. Cannot the Minister understand that people who may have had only minor convictions for dishonesty and who have the kind of confused lifestyles that we are discussing may stand at risk of having their entire assets taken away under the Bill?

Mr. Ainsworth: The hon. Gentleman must reflect on the words that he just used: ``stand at risk''. Surely he would accept that crime is massively interlinked. Traffickers of drugs do not confine themselves to trafficking drugs. Serious drug traffickers are not involved because they have a chaotic lifestyle or because they are paying for their own habit. They are in it for profit, and they turn their mind to any possible illegal profit. Evidence shows that they drift in and out of other types of criminality. The motive for the kind of people that we are after is profit.

3.30 pm

Mr. Hawkins: I understand that the Minister is saying that we are after the Mr. Bigs. Much of the debate on Second Reading consisted of hon. Members, particularly from the Government Back Benches, saying that we are only interested in the Mr. Bigs, and that the Bill will deal with such people. However, the point that we constantly make—the hon. Member for Orkney and Shetland also made it—is that the wording of the Bill is vastly wider than that. The Minister has not convinced us that his draft of the Bill is specifically targeted at the Mr. Bigs and does not include other people. Parliament should not run the risk of catching a huge number of other people in the net as a result of the law of unintended consequences, just to catch the Mr. Bigs. That is bad law.

Mr. Ainsworth: And the hon. Gentleman should reflect on the fact that, if we effectively limit the target to the Mr. Bigs, who are not stupid, they will find a way around the measures. Effectively, we would not target them at all. Yes, we must consider whether we might end up roping in people whom we did not intend to rope in, and swamping the system in the way that the Child Support Agency was swamped, with all the resulting problems, but we also have to consider whether providing loopholes means that people continually get away with retaining the proceeds of crime. There are two sides to the coin. I ask the hon. Gentleman to accept that we have thought seriously about how the legislation will be used and whether it should provide loopholes.

I find the idea of exclusion from confiscation of any class of criminal conduct unacceptable. Apart from the practical benefit of significant proceeds being derived from some summary offences, it would be tantamount to saying that we have no objection to offenders retaining the proceeds of their crimes. If conduct constitutes a criminal offence, which summary conduct does, the proceeds of it should be liable to confiscation.

Summary offences such as the possession of video recordings of unclassified work for the purposes of supply, the use of unlicensed premises for exhibitions that require a licence, and offences relating to sex establishments are capable of generating substantial proceeds, and we see no reason why the court should be prevented from confiscating them. Indeed, it is not prevented now from confiscating such proceeds, so we are not throwing the net wider. I ask the hon. Gentleman to consider the schedule under the Criminal Justice Act 1988, in which numerous summary offences are identified as being capable of attracting confiscation procedures.

We must also bear it in mind that the amendment does not deal with summary offences only but with any issue raised in a magistrates court. Loopholes would affect not only confiscation for summary offences that could attract considerable amounts of profit but far more. If a defendant pleads guilty or is convicted in a magistrates court, the magistrates court can send the defendant to be sentenced in the Crown court if it considers that its sentencing powers are not sufficient because of the seriousness of the offence or the need to protect the public from harm. However, as the law is structured, the magistrate will not be able to take into account the possibility of confiscation when it decides whether to refer the matter to the Crown court. If we accept the hon. Gentleman's amendment, it would allow people to plead guilty in certain circumstances—there are people who would be prepared to do that—and the magistrate will not be able to take into account, when he is deciding whether the crime is serious enough to be referred to the Crown court, the fact that considerable proceeds of crime could be confiscated. Lawyers who represent those people will almost have a duty to exploit that situation.

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Prepared 15 November 2001