Proceeds of Crime Bill

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Mr. Grieve: The Minister said earlier that the Opposition were, as usual, trying to row back from the force of the legislation. In the light of his most recent comments, that was clearly uncalled for, so I hope that he will withdraw the remark.

Mr. Foulkes: I will certainly do so in the case of amendment No. 102, but I will persist in advocating that my remark applies to amendment No. 101.

Mr. Lazarowicz: Perhaps the hon. Member for Cities of London and Westminster has made a valid point and highlighted a possible defect. A court may allow a period of time for payment to be made, but during that time the criminal could presumably continue to earn interest on the sums that he possessed during those six months. In those circumstances, it would be quite fair for interest to be charged on the sum that the defendant was due to pay. Perhaps the Minister will consider whether the amendment has some merit.

Mr. Foulkes: That is an interesting argument. It seems to have the support of my hon. Friend the Member for Glasgow, Pollok, so I wonder whether I should ignore it.

I want to deal with two points raised by the hon. Member for Beaconsfield. Incidentally, I understand that he had a fantastic slogan when he was elected: ``Grieve for Beaconsfield''.

Mr. Grieve: We talked about earlier generations, and it was a member of an earlier generation of my family who had the slogan, ``Grieve for Lincoln''. I have never had the slogan, ``Grieve for Beaconsfield'', even though my e-mail address at the House of Commons-it is appropriate for an Opposition Member of Parliament-is [email protected]

The Chairman: Order. That was a fascinating intervention, but I do not propose to give the Committee seven minutes to think about it, never mind seven days.

Mr. Foulkes: I was going to reply to the hon. Gentleman's intervention, but I shall not.

The hon. Gentleman raised several interesting points about the complex issues. The thrust of the Government's approach is that confiscation should be much more commonly applied, as I hope he understands. Also, the defendant will know from the trial that a confiscation order is likely to be made. In spite of his eloquent and disarming introduction, I must ask the hon. Member for Cities of London and Westminster not to insist on the amendments, and especially amendment No. 102.

Mr. Field: I hope that you will be happy, Mr. Gale, if I briefly foray into the subject of surnames and slogans. With a name such as Field, it is entirely appropriate that I should be in the Conservative party's least rural seat in the country. I am sure that we could all make such observations.

I thank the Minister for his explanation and kind words. I was amazed at the soft heart that he suddenly showed towards the criminal fraternity. The Committee has made strange bedfellows of us, as I agree with the hon. Member for Glasgow, Pollok on what I accept is a narrow point. We will withdraw the amendment, but it strikes us that the subject of interest might be considered further, especially if the time for payment is protracted. The hon. Member for Edinburgh, North and Leith made a good point. An enormous sum of money might literally earn thousands of pounds of interest each week.

Mr. Grieve: After all, interest accrues immediately on a civil judgment debt imposed on the day of the hearing.

Mr. Field: I was in the throes of ending my remarks when my hon. Friend intervened. I thank the Minister and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Mr. Carmichael: I beg to move amendment No. 61, in page 6, line 41, leave out from `made' to end of line 42.

The Chairman: With this it will be convenient to take Government amendments Nos. 36 and 37.

Mr. Carmichael: In addition to my normal dose of sweet reason and good nature, I bring a particularly unpleasant north isles bug to the Committee today, which I shall do my best not to share. If I do not run out of arguments, I fear that I shall run out of voice.

The genesis of the amendment is in a briefing received from a body styling itself the Law Society. As a member of the Law Society of Scotland, I have always found the Law Society's use of the definite article just a tad presumptuous. Let us say that the briefing is from a Law Society. I am being candid in this way because the explanation that was offered to me, which persuaded me to table the amendment, involves a scenario with which I have never been acquainted. However, my experience is north of the border and we are dealing with provisions that are largely applicable in England and Wales.

Will the Minister consider the fact that, currently, persons subject to confiscation orders can be made to pay at the rate of £2 to £5 a week. If they have no means with which to pay, a mandatory time limit might lead to their serving a default prison sentence, with the order still to pay. That leaves the unfortunate position that the state incurs the expense of a sentence being served and the proceeds of crime are not recovered.

This might be worthy of consideration because the basis on which the confiscation of the proceeds of crime is allowed to proceed is now so wide. It is possible that we shall be dealing with a lower range of offences than is currently the case, and people of much more restricted means might become the subject of confiscation orders.

The final consideration is, as has been made clear by the hon. Member for Beaconsfield on a number of occasions, that the amount of assets identified in a confiscation order is often greater than the recoverable amount. It is often the case that the money by which a confiscation order is to be satisfied is money acquired at a date later than that of the order. As a Presbyterian, I am always keen to promote the cause of the genuine penitent. If somebody intends to make every effort to fulfil obligations under a confiscation order by using new resources, every opportunity should be allowed for that, and as much time given as might be considered reasonable.

Mr. Foulkes: I sympathise with the hon. Gentleman and his northern bug. I have a southern one.

The amendment would allow the court, in exceptional circumstances, to grant the defendant an unlimited period in which to pay the confiscation order. The Government's position is that clause 12 sets out to tackle one of the main problems with the current system for enforcing confiscation orders. Confiscation orders are basically enforced like Crown court fines. One of the consequences of that regime is that the Crown court, when it makes a confiscation order, has the power to allow payment by instalments and time to pay.

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We have removed payment by instalments because by definition the individual must have assets with which to pay the order, as we said earlier with reference to the available amount. There is also some evidence of unacceptable use of the present powers. We are informed that the present typical period seems to be between two and three years. To improve matters, we are abolishing payment by instalments and placing a finite limit on the court's power to allow time to pay. The Bill expects offenders to pay their confiscation orders straight away, as provided for. The amount of a confiscation order is based on the value of the property available for enforcement when the order is made, not on an assessment of future earnings, which is important which and deals with one of the points raised by the hon. Member for Orkney and Shetland.

Mr. Grieve: I understand exactly what the Minister is trying to achieve and I am sympathetic to it. However, has any assessment been made, by means of inquiring of the judiciary, of why the old system tended to allow such huge periods for payment, particularly in the light of what the hon. Member for Orkney and Shetland has said about the historical problem of overestimating the assets? Are those two matters linked and are we confident that the new mechanism will not have similar problems?

Mr. Foulkes: I will deal with the hon. Gentleman's first point later. On his second point, the Bill's definition of ``available amount'', which includes many qualifications and conditions, will prevent overestimation. I cannot answer the point on consultation with the judiciary immediately, but I understand why the hon. Gentleman asked the question and I will endeavour to give him an answer or to have my hon. friend the Under-Secretary give him an answer later.

Let me respond to the hon. Member for Orkney and Shetland. The chance of default imprisonment is low. The defendant must have the assets to pay the order, as I said. If he does not, he can ask the court to revisit the available amount under clause 24. The hon. Gentleman will find that safeguard in clause 24, which ensures that the defendant is able to say, ``Please revisit this, because I don't have the available assets.''

I am now able to advise the hon. Member for Beaconsfield that we have taken advice from the prosecuting authorities and have received information from the inter-departmental working group in relation to the matter. I hope that that will satisfy him to some extent. In no circumstances, not even exceptional ones, should the period be extended beyond 12 months. No defendant should take more than a year to dispose of their assets in order to satisfy a confiscation order. If, for example, they wish to sell a house, they have the opportunity to do that at the most propitious time during the course of an annual cycle.

I hope that my remarks make it clear why we have some difficulty with the amendment. Far from speeding up enforcement, it would preserve the open-ended payment regime that is one of the system's weak points. I hope that in light of my remarks the hon. Member for Orkney and Shetland will see fit to withdraw the amendment.

I would like to deal with Government amendments Nos. 36 and 37 together. Amendment No. 37 is dependent on the acceptance of amendment No. 36. They are technical amendments that relate to applications for more time to pay and payment of interest. As we can see from subsection (1), confiscation orders must normally be paid immediately on the making of a confiscation order. However, under the circumstances described in subsection (2), the court may grant a period of six months for paying the confiscation order; and, in exceptional circumstances, that period may be extended upon application by the defendant to a maximum of 12 months from the date on which the confiscation order was made.

However, the clause does not make it clear what happens when a defendant applies for more time to pay before the expiry of the previous time limit but the court does not have time to deal with the application before the time to pay expires. The amendment makes it clear that the court may continue to deal with the application after the previous period of time to pay has expired. The amendment removes doubt about the procedures involved in handling applications for further time to pay. I hope that that will assist the courts.

Amendment No. 37 is consequential on amendment No. 36. Under clause 13, if the defendant fails to pay the confiscation order in full before the time to pay expires, the order automatically accrues interest at a fixed rate, which is currently 8 per cent. The amendment provides that when a defendant applies for an extension of time to pay before a previous period expires, no interest shall accrue on the order as long as the application is outstanding, or if it is less than 12 months since the order was made, after which time no extension can be given in any case.

Amendment No. 37 will ensure that defendants are not unfairly subjected to the payment of interest. I hope that the hon. Member for Beaconsfield will find it attractive. In light of my previous explanation, I urge the hon. Member for Orkney and Shetland to consider withdrawing his amendment.

 
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