Proceeds of Crime Bill

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Mr. Boris Johnson (Henley): I wonder whether the Minister could recapitulate for me, as a non-lawyer, what summary offences could generate proceeds that the agency could recover. He mentioned video shops. Could he elaborate?

Mr. Ainsworth: As I have said, there is an entire schedule of summary offences that attract confiscation under the Criminal Justice Act 1988. The hon. Gentleman may be able to imagine some of them: offences under the Copyright, Design and Patents Act 1988; criminal liability for making and dealing with infringing articles; criminal liability for making and dealing with used illicit recordings; offences related to the unauthorised use of trade marks; and offences relating to the operation of sex establishments. Currently, all those summary offences can result in confiscation of the proceeds of crime. If the amendment were accepted, they would no longer do so. Magistrates can also decide that the offence should be referred to the Crown court, but they will not be able to take into account the possibility of confiscation.

I want to make ensure that the hon. Gentleman understands that the prosecutor does not have the discretion to apply for confiscation. We are not talking about the magistrate's discretion. Before we discuss clause 70, we intend to provide the Committee with details of those offences and related issues.

We need to ensure that the system is not swamped, that the people targeted are those who have committed crimes that have clearly resulted in gain, and that the prosecutor does not have to apply for confiscation. Why would he or she have to do so when, as hon. Members have rightly said, other aspects of criminal law are available? The magistrate and the Crown court can sentence, and fine, the person. Why would the prosecutor go down the road of drawing up a confiscation order?

Mr. Hawkins: We all recognise that, even though in this country we are largely, and rightly, proud of our criminal justice system, not all prosecutors are perfect and not all decisions are absolutely right. Members on both sides of the Committee have been involved in cases in their professional lives that have involved substantial injustice. Perhaps with the best of motives, prosecutors sometimes make mistakes. Our concern is to try to ensure that the Bill is good law for the reasons that we have set out. I hope that the Minister accepts that there is a risk that the current draft risks mistakes being made by prosecutors.

Mr. Ainsworth: I can only say that we are talking about people who have been found guilty. Yes, the prosecutor has the discretion to decide whether to go for confiscation. Prosecuting agencies will get involved in cases of very serious offences in which there are considerable proceeds to be confiscated, and where the usual prosecutors do not believe that they have the ability, wherewithal or resources to pursue the matter.

The Government are satisfied that the Bill has the right approach to the issue. As confiscation can be a complex and unfamiliar procedure to the magistrates court, it gives the power to make confiscation orders to the Crown court, which is accustomed to using it. It also extends the scope of confiscation. Any offence that the defendant has benefited from can attract confiscation. We will no longer confine confiscation for summary offences to those listed in a schedule. Instead, the test applied will be the one that matters—did the offender benefit from his offence?

I hope that the Committee understands that making the amendments would be a retrograde step and I hope that they will not be pressed to a vote.

Mr. Carmichael: I listened to the Minister with a growing sense of foreboding. To hear him trumpet the use of confiscation orders in cases of licensing offences bodes ill for the future. My words about the agency being swamped may be sadly prophetic.

I am grateful to the hon. Member for Glasgow, Pollok (Mr. Davidson) for his reflections. Had he reflected more quickly, I might not have pressed the earlier clause to a Division. His point has force, but he is not quite out of the woods. Subsection (2)(a) states:

    ``But if the defendant shows that the available amount is less than the recoverable amount is''.

That places an onus on the defendant, which he might find difficult if he has a chaotic lifestyle. I made that point earlier so I will not pursue it further.

The Minister's point about loopholes may have force. To be candid, it had not occurred to me, and I am grateful to him for raising it. He should recognise some of the observations made—especially in the future when the agency is set up and guidelines are issued. We must be careful: we do not want to see the agency fail because it is overburdened.

Mr. Davidson: The hon. Gentleman made a valuable point about swamping—or the lack of it. The mechanism is self-regulating because the Secretary of State will give directions to the director in his annual plan. The Secretary of State will, therefore, decide which categories are pursued, beginning with a relatively small number, then rolling more out as the system develops. Rather than starting with the maximum number that could be caught in the trawl, we could build up to it, which would be welcome.

Mr. Carmichael: That may be the case but, for every scenario, the opposite is equally possible. The hon. Gentleman may feel differently in other circumstances, as it depends on the Secretary of State or the Minister of the day, with whom he may not always sympathise politically. He is inviting the Committee to second-guess what will happen, which is not an effective way of legislating. We must consider the regulatory framework only in the broadest sense. However, I am not minded to pursue the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 pm

Mr. Hawkins: I beg to move amendment No. 11, in page 3, line 32, leave out `has a criminal lifestyle' and insert

    `is an habitual criminal for gain'.

The Chairman: With this it will be convenient to take the following amendments: No. 12, in page 3, line 33, leave out `has a criminal lifestyle' and insert

    `is an habitual criminal for gain'.

No. 13, in page 3, line 35, leave out

    `does not have a criminal lifestyle'

and insert

    `is not an habitual criminal for gain'.

No. 16, in clause 11, page 5, line 36, leave out `has a criminal lifestyle' and insert

    `is an habitual criminal for gain'.

No. 17, in clause 17, page 9, line 26, leave out `has a criminal lifestyle' and insert

    `is an habitual criminal for gain'.

No. 18, in clause 17, page 9, line 30, leave out `has a criminal lifestyle' and insert

    `is an habitual criminal for gain'.

No. 19, in clause 17, page 9, line 41, leave out `has a criminal lifestyle' and insert

    `is an habitual criminal for gain'.

No. 20, in clause 21, page 12, line 31, leave out `has a criminal lifestyle' and insert

    `is an habitual criminal for gain'.

No. 21, in clause 21, page 12, line 33, leave out

`does not have a criminal lifestyle'

and insert

    `is not an habitual criminal for gain'.

No. 22, in clause 75, page 47, line 18, leave out `has a criminal lifestyle' and insert

    `is an habitual criminal for gain'.

Mr. Hawkins: Let me say at the outset that the amendments are substantive. The Committee will realise that the later amendments in the group are consequential on the earlier ones. My hon. Friend the Member for Beaconsfield and I have been through the Bill and I hope that we have not missed any consequential amendments. We are the first to say that our proposals are not absolutely perfect and the Minister and other members of the Committee may say that our wording is not right. However, the matter to which I am about to refer is one of enormous substance. The Minister will have to concede that the Government are introducing a novel concept into English law.

The concept that the courts will be asked to assess whether a defendant has a criminal lifestyle is something with which we are not familiar. The fact that such a provision has not existed before does not automatically mean that it is wrong. I am not one of those lawyers or politicians who says that, because something is hallowed by precedent and tradition, it must automatically be defended to the hilt, but many of our traditions under English law and British democracy are valuable and have survived for a long time because they work.

The Government will have substantial problems not only because organisations such as Justice and Liberty have expressed considerable reservations about the new concept, but because when the Bill goes to another place it will be subjected to substantial and sustained attack by Law Lords and Cross-Bench peers, as well as Conservative and Liberal Democrat peers. The Government will have to think carefully about such matters because I think that a catch-all provision such as ``a criminal lifestyle'' has not been used in any other legislation, although I await to hear from Ministers whether there is such an example.

Mr. Foulkes: On a point of order, Mr. Gale. I seek your advice because I shall reply to the debate to give my hon. Friend the Under-Secretary a well-earned rest. Do you intend to relate the debate to the criteria under clause 75, in which case the debate would be wide-ranging, or will you merely confine it to the semantics of ``criminal lifestyle'' versus

    ``an habitual criminal for gain''?

If we are to deal only with the semantics, the debate will be narrow, but if we extend it to the criteria it will be more wide-ranging. To enable me to be ready to reply and to advise the hon. Gentleman, it would be helpful to know your intentions.

Mr. Hawkins: Further to that point of order, Mr. Gale. I know that you will have a firm view, but we are happy to confine the debate quite narrowly. However, I felt that I had to set the scene because one of the amendments relates to clause 75. When we discuss that clause, we will have tabled other amendments that will lead to a wider debate. At present, I propose to confine my remarks to narrower matters.

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