Proceeds of Crime Bill

[back to previous text]

Mr. Alistair Carmichael (Orkney and Shetland): I was interested to see the amendment on the amendment paper, but I am more interested to hear that the basis on which it is offered is one of practicality. From a practical point of view, although I accept that the hon. Gentleman tabled it in a spirit of helpfulness, the amendment might cause confusion, because subsections (2) onwards provide for payment to be made within a certain amount of time. The practical position is that at present a monetary penalty such as a fine paid in court is always payable at the time that it is imposed, but as a matter of practice the court will allow time for payment where the need is shown.

Mr. Field: I take on board the hon. Gentleman's comments, but it is important to get the Bill right, and my strong feeling was that-

Mr. Lazarowicz: I endorse the comments of the hon. Member for Orkney and Shetland (Mr. Carmichael) and suggest to the hon. Member for Cities of London and Westminster (Mr. Field) that another problem is involved. In many circumstances in which such an order is likely to be made, the defendant may have taken the precaution of trying to dispose of or hide assets prior to its being made. Does the hon. Member for Cities of London and Westminster accept that the defendant may not have taken such precautions? Does he not believe that giving a convicted person seven days' grace is an invitation to that person to hide as much of the money as he can in that period?

Mr. Field: I fully understand how the hon. Gentleman might on first reading have come to that conclusion. The practical reality is that a person who is subject to a lengthy criminal trial will have been subject to a sophisticated analysis of assets, and the idea that within those seven days-which I regard as good housekeeping as much as anything else-he would be able salt away assets is unrealistic. I notice that my honourable adversary the Member for Glasgow, Pollok, about whom I spoke in vain, is now present. He will have to read in the report what I said earlier.

Mr. Lazarowicz: I accept that the hon. Gentleman's argument about assets having been salted away at an earlier stage may apply in circumstances such as those involving money laundering, in which I understand that he has a particular interest. The case of the cash economy of a drug dealer is an example that has been much discussed in Committee. Is not that precisely a case in which assets might be held as large amounts of cash that could easily be dissipated in seven days, if that period of grace was allowed? As the hon. Member for Orkney and Shetland points out, if such a case comes to court, the time for payment can be extended not just for seven days but for up to six months. Is not that much fairer than the loophole for drug dealers that I fear is contained in the amendment?

Mr. Field: I beg to differ. We have discussed the point. I do not think that the amendment creates a loophole that creates a risk that money may go far afield. It has been pointed out that there are certain safeguards, but they are the discretionary safeguards of the courts. I wanted to tidy up the measure, and had hoped that the amendment would be no more than a practicality that points out how the clause would work in reality.

Mr. McCabe: I have a simple point to make. I recall that the hon. Gentleman and the hon. Member for Surrey Heath earlier made the strong point that they wanted to put the defendant out of his or her misery, and did not want a delay between sentencing and the issue of the confiscation order. Now the former is pleading to give the defendant a longer period of misery. Is not he concerned that he should resume his earlier argument about tidying up matters as quickly as possible?

Mr. Field: I respectfully suggest that the hon. Gentleman has missed the point of what we want to achieve. A handful of days will not make much difference in the way of misery.

I have made my initial comments on the matter and should like to hear the Minister's response.

Mr. Grieve: My hon. Friend has done the Committee a favour by moving the amendment, which raises an interesting issue-one that is by no means favourable to the defendant. I was struck by the interventions of the hon. Members for Edinburgh, North and Leith (Mr. Lazarowicz) and for Orkney and Shetland, who raised the issue of the normal practice by which fines are levied. They are quite right. Normally, the fine is payable immediately. Those of us who have practised in magistrates courts recollect times when the magistrate inquired of a police officer how much money a defendant had in his pockets, and made the assessment then and there. The money was handed over, and that was the end of the matter. I think that that is effectively the original method-certainly, when a fine is levied, it is assumed that the defendant has the assets to pay it.

In contrast, it is implied that the Bill will frequently be used in complex asset cases. After all, assets must first be realised, unless they are in cash. Assets could take the form of shareholdings or chattels-there is a wide range of assets that the courts would want to confiscate, and could make orders to confiscate. One must assume that if there is a danger that someone will dispose of their assets, those assets shall be subject to restraint before the order is made. I do not think that the ``salting away'' argument is valid, because the seven-day theory will not make a difference to that.

Mr. Foulkes: The hon. Gentleman is right about salting away. He mentions that the assets may be of a complicated nature. Surely subsection (2) addresses that.

Mr. Grieve: The Minister is right. Subsection (2) provides what I would call the normal mechanism for the payment of fines. The merit of the amendment is that in reality there will be no instance in which immediate payment of such sums will ever be made. In reality, defendants will always need time to pay. The oddity is that, by stipulating seven days or 28 days, we would probably be putting more pressure on the defendant than if such action had to be taken immediately. We would at least be defining the rapidity with which Parliament has deemed that payment should be made.

10.45 am

Mr. Carmichael: While associating myself with the remarks of my hon. Friend the Minister of State, may I bring it to the hon. Gentleman's attention that such action will be coming at the end of a complex inquisitory procedure? Surely the courts should have a substantial amount of information at their disposal by the time we proceed under subsection (2).

Mr. Grieve: I agree with the hon. Gentleman, which is why I shall not labour my remarks. The point is narrow. Nevertheless, it is interesting. Measures under subsection (1) will be unrealistic in practice. I can envisage some instances when payment in seven days is possible, but I do not envisage circumstances in which someone will hand over the cash then and there. If Parliament is trying to realistic and logical, there is merit in the amendment.

We could look at the matter in a different way and make the period 28 days to ensure that the proceedings are not too spun out and to provide a benchmark against which the payment proceedings should be operated. I am sure that the Minister will agree that the problem of not providing a definition means that the opportunity to expand the periods in which to make the payment may be easier-curiously enough-than if a reasonable time limit had been set. That is a narrow point, but it is perfectly reasonable and I am grateful to my hon. Friend the Member for Cities of London and Westminster for bringing it to our attention.

Mr. Foulkes: Despite the disarming introduction to the amendment by the hon. Member for Cities of London and Westminster, on which I congratulate him, I must resist it. The amendment would stop the court ordering the payment of a confiscation order within less than seven days, and amendment No. 102 would require the defendant to pay interest on every confiscation order that has not been paid within seven days of the making of the order, even if the court had allowed longer than seven days to pay it. That may not be what the hon. Gentleman had intended.

The court has always had the power to order the payment of a confiscation order immediately, because Crown court fine enforcement procedures allow it. As the hon. Member for Orkney and Shetland said, payment is deemed to be required forthwith, unless time to pay is allowed. The amendment, like other Opposition amendments before it, would row back even from the existing legislation concerning immediate payment.

I shall explain why the Government oppose the amendments. Clause 12 aims to tighten up the current time-to-pay regime. We do not want any time to pay allowed unless the defendant specifically applies for it and justifies it. The power to order immediate payment of a confiscation order is clearly justified. We start from the premise that a confiscation order is made by the court only if the defendant has sufficient funds available in cash or property to pay it. By definition, a defendant must have the assets to pay a confiscation order, as the amount of the order cannot exceed the available amount that has been calculated by the court.

There may be cases when a confiscation order will be for a small sum and the defendant may have on his or her person in court sufficient funds to pay it there and then, whether by cash or cheque. I put it to the hon. Gentleman that, under such circumstances, it would not be appropriate to allow any time to pay.

The hon. Member for Beaconsfield referred to circumstances in which the defendant needs time to realise property or to arrange for investments to be cashed so that he can pay the confiscation order. The clause will allow that, subject to a cut-off point of a maximum period of 12 months.

I am concerned about the effect that amendment No. 102 would have. It cannot be right that a defendant should have to pay interest from seven days after the confiscation order was made when the court had agreed that he should have longer. Is that really what the Opposition intended?

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 22 November 2001