Proceeds of Crime Bill

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Mr. Ainsworth: We believe that it is necessary to restate that because clause 76 looks forward, and confiscation normally takes place before sentencing. In dealing with reconsideration, we are therefore restating the principle that conduct in cases taken into consideration is part of the particular criminal conduct. I do not understand how removing the provision would make the matter clearer. The hon. Gentleman suggests that simply restating that clause 6 applies would do that. We are restating the provisions in clause 6 as they apply to reconsideration, and I am struggling to understand why he has a problem with that.

Mr. Grieve: I do not want to labour the point, and I am perfectly prepared to accept that I may have misunderstood the matter. However, subsection (2) states:

    ``If this section applies the court must proceed under section 6'',

but goes on to give a series of further definitions to try to marry ``section 6'' to the new position. I find it odd that the issue of offences taken into consideration should have to be explicitly restated in the clause. I would have expected it to apply in exactly the same way as the procedure under clause 6 if confiscation were taking place before sentence. During the confiscation process, I assume—I believe that it is common ground—that the offences that are to be taken into consideration will also be considered.

I accept that a drafting point may be involved. Ultimately, it may be that the difference between the Minister and me is minute, or that we are both worrying about nothing. Nevertheless, the provision was sufficiently odd for me to want to ascertain what was in the draftsman's mind in this case.

Mr. Ainsworth: The procedures under clause 20 cannot be exactly the same as those under clause 6, for the simple reason that confiscation takes place before certain parts of sentencing. When reconsideration takes place, obviously all the sentencing in the original consideration has taken place. The provisions therefore cannot be replicated.

Mr. Grieve: We may now have reached a point that involves a wider issue. Under the clause 6 procedure, confiscation takes place, an assessment is made and the defendant is sentenced. In such circumstances, might offences be taken into consideration during the sentencing process, after the confiscation order is made? The court could not make a confiscation order in respect of those TICs. However, six years later, when a reconsideration takes place, TICs could be taken into account in determining the confiscation order that is made. Does the Minister understand my point? There might be a different regime, and a defendant would be seriously disadvantaged in the reconsideration because TICs that were previously kept out of the confiscation picture could suddenly be brought in. I did not think that that was what he intended, and I find it hard to believe that it is, but he raises the slight possibility that that might be the case.

Mr. Ainsworth: I am fairly certain that what the hon. Gentleman has suggested is not what is inferred, but I will go away and make absolutely sure that that is the case. Cases that are taken into consideration will have been known to the court at the time of conviction, and it will then go through the procedures outlined in clause 6: sentencing, confiscation, and any fiscal sentencing that is considered appropriate after the confiscation is taken into account. That procedure would cover cases that are taken into consideration in the same way as they would be covered on reconsideration. Clause 20 does not introduce a new concept to that which is laid out in clause 6. I will find out whether that is correct, and I assure the hon. Gentleman that I will inform him if it is not.

Mr. Grieve: It is early in the morning, and I hope that the Minister will forgive me if, following yesterday's late night, I have not clearly explained what was bugging me about the clause. We have clarified that by dialogue, which is what a Committee is supposed to do.

I am pleased that the Minister is not envisaging a different regime under clause 20 from that laid out under clause 6. However, my concern is that one might consider that there are advantages. I had not thought of the following point until we came to clause 20: if clause 6 might produce a situation in which a person whose confiscation had been assessed before sentence could say, after he has been sentenced, ``I also want 250 other offences to be taken into account,'' that would raise, for the first time, possibilities with regard to benefits from criminal conduct that had not been thought about before. That circumstance would be a strange consequence of clause 6.

Vera Baird (Redcar): I wish to contribute to the excellent dialogue. If the hon. Gentleman refers back to clause 6, clause 76(3)(c) might serve to clarify the matter under discussion. It states that

    ``conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences''

can be taken into account as criminal conduct. Is that helpful, or does it muddy the waters?

Mr. Grieve: It is helpful. I have not come across a situation in which the offences to be taken into consideration are sprung on the court at the last minute, without being made available during the pre-sentencing process. Therefore, I expect that the regimes under clauses 6 and 20 would be identical. If that is the case, I merely repeat a question: why was it felt necessary to define the regime again in clause 20 and subsequent clauses? That is an interesting question.

I welcome the Minister's remarks, and I am sure that he will be able to provide reassurance.

Mr. David Wilshire (Spelthorne): My hon. Friend believes that clause 76 is helpful, and as he is a lawyer, I will not challenge his opinion on that. However, should not reference be made to clause 76 in clause 20, to clarify what we are trying to achieve? That point has cropped up before.

Mr. Grieve: It is an interesting point, and the Minister might wish to consider it. I do not want to go back over the drafting. The legislation is complex, and it is often necessary to go on a search for what a matter in a clause relates to. In some cases, one must examine not merely one clause, but a clause that refers one to yet another. I do not know whether that will make the Bill a practitioners' fortune or a practitioners' nightmare when it is implemented. I know that there are drafting matters to consider, and minimalism and simplicity are often important, but the Minister should bear it in mind that the Bill is not easy to read and understand. There is no doubt that a practitioners' handbook will be produced to do the cross-referencing when the Bill comes into operation. However, I prefer to read legislation that is apparent.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Grieve: I beg to move amendment No. 87, in page 11, line 38, leave out `or in connection with'.

The Chairman: With this it will be convenient to take the following amendments: No. 91, in clause 21, page 13, line 35, leave out `or in connection with'.

No. 93, in clause 22, page 14, line 38, leave out `or in connection with'.

Mr. Wilshire: On a point of order, Mr. O'Brien. These amendments are the third group relating to clause 20 and by the end of the debate there will have been a substantial discussion of some matters. However, both the Minister and my hon. Friend the Member for Beaconsfield (Mr. Grieve) said that they were discussing general issues. I believe that further general matters fall outside the amendments. Will you give the Committee guidance about whether we should make general points under this group of amendments or whether you will consider granting a stand part debate afterwards?

The Chairman: General issues can be debated in a stand part debate.

Mr. Grieve: The amendment raises a small matter about clause 20, but it may have wider importance. I would be grateful if the Minister would clarify the matter. The amendment is probing, to allow me to understand intent.

The provisions of clause 20 are intended to match those in clause 6, but for a situation that arises on reconsideration. Clause 20 points out that clause 9(2) will not apply—that makes perfect sense—and states that the court must take account of conduct that occurred before the relevant date, property that was obtained before that date, and property that was obtained on or after the relevant date

    ``if it was obtained as a result of or in connection with conduct occurring before that date.''

I understand that property obtained as a result of conduct occurring before the date means that property that arose from criminal conduct should be taken into consideration, although it may have accrued to the benefit of the defendant subsequent to the relevant date. However, what does

    ``property obtained . . . in connection with conduct''

mean? The connection is surely a result of the conduct. If it is not, how can the property be described as the proceeds of crime?

Have the draftsmen shown a superabundance of caution? I experienced that during consideration of a Northern Ireland Bill that stated that certain bands should not play ``musical or other instruments''. I asked what another instrument is if it is not musical, and the words were deleted. There is sometimes a tendency to over-egg the pudding. If the matter is not a result of that conduct, what is the aim of ``in connection with''? If the connection is not ``as a result of'', surely we are considering assets that are unassociated and would not fall for consideration.

Amendments Nos. 91 and 93 would make the same change to clauses 21 and 22 respectively. The issue is the same in relation to all three clauses. It is a simple matter, but I have an underlying concern as to whether the use of the words ``in connection with'' is not an attempt at widening the scope of the eventual confiscation order in a manner that might be thought unreasonable. Surely the whole issue of these provisions is that property obtained as result of criminal conduct falls to be confiscated.

11 am

To give the Minister an example—a difficult one—if I go out and buy a car with my inheritance from my grandmother, that is my money. If I happen to have driven that car on one of the days on which I was also committing one of the offences for which confiscation falls, does the Minister intend that that car should be confiscated? That is not how it appeared to me that the Bill was intended to operate under clause 6, which is why I am slightly puzzled that it has appeared in this form under clause 20.

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