Proceeds of Crime Bill

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Mr. Wilshire: On a point of order, Mr. Gale. I am sorry that I was not here earlier, but the Minister has just referred to clauses 12 and 13. Will it be possible to debate clause 13 separately, even after we have disposed of the Government amendments? Some issues overlap, and I would like to know whether we need to deal with them both now.

The Chairman: The amendments are being taken together, but the clauses are not. In due course, we shall move to a Division or accept the amendments before the Committee. One of those amendments relates to clause 13. When we come to the stand part debate on clause 13, hon. Members will have an opportunity to discuss further matters arising.

Mr. Carmichael: I have briefly considered the terms of clause 24. It is a generally commendable provision, and I look forward to debating it in due course. My only observation is that subsection 24(2) appears to require application of the provisions of clause 10, but that there is no provision for reopening matters otherwise. If one gets it wrong the first time, I do not see what is to stop one getting it wrong again. That is something to be considered when we visit clause 24. I have pleaded the cause but, as a genuine penitent, I am persuaded that it is not appropriate to pursue the matter. I beg to ask leave to withdraw the amendment.

Mr. Grieve rose-

The Chairman: Order.

Mr. Wilshire: On a point of order, Mr. Gale. I am conscious that my hon. Friend the Member for Beaconsfield wished to catch your eye, and was in the process of rising to his feet when I interrupted him. For the record, I saw him stand. However, I shall accept whatever ruling you give on the matter.

The Chairman: It is up to hon. Members to catch the eye of the Chair. As I said in an earlier ruling, if the mover of the amendment has been called to wind up and if he seeks to withdraw the amendment, that is the end of the debate. However, the hon. Gentleman has been a Member of the House long enough to be aware that he has the opportunity in certain circumstances to raise matters arising during the stand part debate.

Amendment, by leave, withdrawn.

Amendment made: No. 36, in page 6, line 42, at end add-

    `(6) An order under subsection (4)-

    (a) may be made after the end of the specified period, but

    (b) must not be made after the end of the period of 12 months starting with the day on which the confiscation order is made.'-[Mr. Foulkes.]

Question proposed, That the clause stand part of the Bill.

Mr. Grieve: I apologise for having to avail myself of this opportunity to speak. Although I stood up vigorously before my hon. Friend the Member for Spelthorne made his point of order, I was perhaps a bit slower when he sat down.

I turn to the amendment that the Minister has just made. I fully understand its purpose, do not want to quibble with it and would not have wanted to vote against it. However, some clarification would be helpful. Clearly, the intention behind proposed new subsection (6) is that if someone fails to go back to the court within the 12-month period to tell the court that he does not have the assets originally sought, it is that person's tough luck. If an individual is properly advised, his adviser will tell him, once eleven and a half months have passed, ``We haven't succeeded in realising the assets that we thought we had. We have sold some assets, but they have brought in less than we expected and, given that 12 months have almost passed, you should go straight back to court to make an application for the variation.'' I assume that the words ``make the application'' imply not having the application heard but the physical process of making it. That was my assumption when the Minister explained the provision.

What would happen in the case of someone who leads a chaotic lifestyle-we have heard about that-who fails to do what is required within the 12-month period, when it is glaringly obvious that a mistake has been made over the assets? Does that person simply go to prison in default? I ask that question because we need to consider the point. That may be what the Minister intends, and one could of course say that people in such cases are simply being irresponsible. However, most of us who practise at the Bar know of numerous examples of people who failed to make applications within the period when they should have been made. It does not necessarily mean that their application was bogus or unwarranted.

Mr. Wilshire: I approach the matter as a layman. Having listened to the Minister's explanation of why we needed proposed new subsection (6), I thought carefully about what I had been asked to agree to, which the Committee has now approved. The clause seems to say that something must be done immediately, then suggests that it may not have to be done immediately but in a ``specified period'', then goes on to say not simply ``specified period'' but ``six months''. Now that we have accepted the amendment, the clause seems to say that whatever must be done must be done within ``12 months''. As a layman, I am puzzled by the fact that a single clause in a 400-clause Bill can make four differing statements about the same thing.

I have heard hon. Members talk about the valuable skill some people possess of ensuring that a lawyer or a court cannot pin them down. A lot of the debate has related to that point. If people can find only a technicality, a curiosity or confusion in the law, they may discover a possible loophole. They will then spend a great deal of time and-to the lawyers' benefit-a great deal of money in seeking to nullify what the law was designed to achieve. By drafting a clause such as this, we seem to be moving into that territory. Giving the person to whom the law applies those four choices-immediately, specified, six months or 12 months-is a recipe that will allow that person to wriggle and squirm. I hope that the Minister will assure us that there will be no repetition of the problem and that, between now and future sittings, someone will go through the Bill and ensure that it specifies one term or another rather than if, but, when or how.

We all agree that we are trying to take the proceeds of crime away from people who deserve it. Therefore, we should make common cause to prevent clauses such as this from cropping up, as they give people four choices-in my view, four opportunities to get out from under-when one clear statement would be adequate.

11.15 am

Mr. Foulkes: The debate has been interesting. Some of the comments that we made earlier about Opposition Members being soft must have struck home, because they no longer appear to be the criminal's friends. Instead, they seem to have taken our advice.

Incidentally, I should say that if the debate continues in the afternoon, my hon. Friend the Under-Secretary will answer it as I have to be elsewhere. I would like to deal with it now.

The hon. Member for Beaconsfield will understand the need for the provision. If the money is available and the sum is not too large-we know that the sum required to be paid under the order will be no greater than the available sum-the person could and should pay it immediately by cheque or cash. Under certain circumstances, property may have to be sold and assets may have to be realised. The hon. Member for Spelthorne told us about all his shares. In the extremely unlikely event that he were a criminal, or if a criminal had a similar amount of shares, those shares would have to be sold and realised. It is appropriate to specify a period no greater than six months.

Mr. Wilshire: When the Minister referred to me having to sell shares, he triggered a thought in my mind about when the court considered shares as the asset to be sold in the specified period. If someone said that the shares of company X were not doing well, but that they were expected to increase in value during the specified period or at a time to which the period ought therefore to be extended, would the court be entitled-would the Government encourage it-to make an order so that the shares could rise in value and more money would be made? Is that what the Minister has in mind?

Mr. Foulkes: No.

As I said earlier to the hon. Member for Orkney and Shetland, it would be possible under clause 24 for the order to be revisited, so various points could be made at another time. For the hon. Member for Beaconsfield, I add the fact that the available sum could be revisited after 12 months under clause 24, but interest would start to accrue.

The provisions are not designed to be soft on criminals. They are meant not to make life easier for criminals, but to make it easier for the court to take money from criminals. They will ensure that money and assets-property, shares and anything else-can be obtained, realised and liquidated so that the cash can be paid to the court.

Mr. Grieve: The Minister makes a good point. I accept that clause 24 allows the possibility of going back to court to reapply for a variation of the order when the available sum is inadequate. The sum could therefore be re-calculated. Under the provision that we have recently incorporated in the Bill, interest would accrue on the sum originally ordered, but that may be found to be wrong. Is the Minister saying that, in those circumstances, the person would have to pay interest on a sum that it is subsequently accepted that he should never have had to pay?

Mr. Foulkes: I wonder whether the hon. Gentleman could clarify that point because I did not quite understand it.

Mr. Grieve: I hope that I am correct to suggest-and I think that the Minister suggested-that there are mechanisms for reconsidering the benefit where an individual is ordered to pay an amount. The new figure-whether higher or lower-can then be imposed. However, those who want more time to pay under the system that, for very valid reasons, is incorporated in the clause must return to court within the specified period or within a maximum of 12 months. If they do not, interest will accrue. However, if it is found on reconsideration that they should pay less, will they have to pay interest on the initial sum, which was eventually found not to be due? I hope that I have made myself clear.

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