Proceeds of Crime Bill

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Mr. Bob Ainsworth: Clause 20 is one of three clauses that allow reconsideration within six years. On the one hand, my hon. Friend the Member for Glasgow, Pollok asks me why the period should be limited to six years, and on the other, Opposition Members say that no period should be allowed, and that we are only encouraging ineffective enforcement by allowing people to reconsider cases.

There is a six-year limitation on the assumptions. To make the Bill proportionate, there should be a time limit for when people can go back. We therefore propose that the reconsideration clauses should be subject to a six-year limit.

When the director or prosecutor seeks reconsideration, he must convince the court that it is appropriate. It is at the court's discretion whether such action will proceed. I shall clarify the point made by the hon. Member for Beaconsfield. In theory, there can be multiple reconsiderations and I do not see why that should not be so. To our knowledge, however, reconsideration under the existing legislation is rare. I am not aware of any circumstances in which there have been multiple reconsiderations. I ask members of the Committee to think about the backstop position in which new evidence came to light that would convince the court that it was appropriate for reconsideration to be allowed. The Bill should not prevent that from happening.

I accept that, under clause 20, a confiscation order may not be made or allowed because there was no evidence that the person who committed the crimes had made an acquisition. However, it may be shown clearly at a later date that a substantial gain had been made from those activities and that a confiscation order should have been taken out against the individual. It would be appropriate to return to the court with the new evidence that there had been an acquisition and allow it to consider the position.

The hon. Member for Spelthorne referred to people challenging the conviction. There is provision in the Bill to prevent self-incrimination. Under clause 18(6), evidence given by a defendant that he has benefited from his actions is not admissible in proceedings for an offence. If a person were obliged to give evidence about the proceeds of crime, that could not be used against him in respect of further convictions. That is the matter of double jeopardy to which the hon. Gentleman rightly referred. If we are, in effect, obliging disclosure in confiscation proceedings, that will not trigger self-incrimination.

Mr. Wilshire: The Minister said that such an act could not be used in proceedings after disclosure. Could it be used if a further order were sought? I know the distinction between criminal proceedings and the making of an order. Is the hon. Gentleman saying that self-incrimination could not lead to further prosecution or the making of a new order?

Mr. Ainsworth: I am saying that such evidence could not be used to further a prosecution. I am not saying that evidence gained in a previous confiscation order could not be taken into account in a subsequent confiscation order. Confiscation procedures are separate from criminal procedures that would result in a conviction in the first place or in a conviction being overturned subsequently. It is obviously the defendant's right to seek to overturn the original confiscation.

As for whether subsection (7) allows fines to be taken into account and discounted through confiscation, we must go back to the provisions under clause 6. Let us suppose that, at the original conviction, the court decided to sentence an individual, and subsequently to proceed with confiscation, and, after confiscation, considered whether to impose a fine. Other orders were taken into account in the relevant way under clause 6. Given that we are coming back to reconsideration, it would be inappropriate. Let us suppose that the person was convicted, and, under clause 20, there was no confiscation, but the court then decided to fine the individual. It would have made that decision after a confiscation order had been imposed and taken into account. It is therefore only right to return to that consideration subsequently, look at the fine imposed, and take it into account when deciding on the size of the confiscation.

I do not know what more to say to hon. Gentlemen other than that we believe that it is appropriate that the prosecutor should be allowed to go back in such circumstances, when he can convince the court that there is evidence of an acquisition which, for whatever reason, was not available at the time. In those circumstances, he should seek to confiscate the proceeds of crime. I hope that the hon. Gentlemen will accept that, and support the clause.

Mr. Davidson: I welcome the Minister's statement. The procedure, as clarified, allows the court to re-examine the assets of the guilty on multiple occasions. Can he provide further clarification on the question of finality of proceedings? There is a point at which such finality is undoubtedly wanted, but there must be a consideration of what is proportionate. Many people in my constituency and my city suffer the finality of death from overdoses. If someone is dead from an overdose, the period of supervision of a person who has sold, or been involved in the supply of the drugs responsible for that death should not be too brief. The Minister made the point about not being able to go back more than six years. In those circumstances, we are not going back at all—we are going forward. One can go forward only six years from the date of conviction.

It is not unreasonable that if someone has been convicted of such a serious offence he should be on the equivalent of probation for life. If he decides to turn honest, earn money and so on, there is no difficulty with that, but he must be able to demonstrate that he earned his money honestly. If, subsequently, whether 10, 20 or 30 years down the line, that person suddenly appears to have gained an enormous amount of wealth with no trace whatever, and there is strong suspicion that it is the proceeds of crime, there is no reason why the court should not be able to pursue that person, especially given that many of that person's customers, clients and victims are dead, remain dead, have been dead for some time and will continue to be dead for some time to come.

It is a matter of what is proportionate. Families in my constituency and my city have been grieving for a long time, and will continue to grieve. It will be obscene if a six-year limit allows the person who caused those deaths to ride free after that period.

Mr. Ainsworth: Let me potentially make the offence even worse. My hon. Friend is determined to brand me with a Mr. Softy title, so let me dampen my hon. Friend's enthusiasm for multiple reconsiderations. It would be difficult for a prosecutor to go back to the court repeatedly, although he would be allowed to do so, to seek further confiscation. Eyes would widen on each occasion. It would not be an effective tool except in the most extreme circumstances. My hon. Friend may remain of the opinion that we are being soft on such people. In respect of the six-year period, we have little choice but to draw the line for criminal confiscation somewhere.

12.15 pm

The only point that I can make in mitigation against the image with which my hon. Friend is determined to brand me is that other provisions in part 5 relate to the potential for civil litigation against an individual who, years and years after a confiscation, comes up with huge amounts of property for which he has no lawful explanation. The agency and director would have to examine whether that person could be pursued under part 5 of the Bill for the civil recovery of those assets. However, I am sure that that does not satisfy my hon. Friend and that he believes that we should go much further.

Mr. Hawkins: The Minister mentioned the difficulties that he has with the hon. Member for Glasgow, Pollok wishing to brand him a softy. Does the Minister agree that the hon. Gentleman is always keen to attack lawyers? However, his policy of constantly returning to the courts could be implemented only if lawyers brought the applications. The hon. Gentleman seems to believe that only defence lawyers are venal and corrupt, when, of course, the same people prosecute and defend.

Mr. Ainsworth: There is a dreadful lack of respect in the Committee, and I do not intend to get involved.

Question put and agreed to.

Clause 20 ordered to stand part of the Bill.

Clause 21

No order made: reconsideration of benefit

Mr. Grieve: I beg to move amendment No. 88, in page 12, line 33, leave out subsection (2)(b).

It may be due to the hour of the night when I drafted some of the amendments but a re-reading of clause 21 seems to provide reassurance for my anxieties and doubts. However, there is a matter that the Committee should flag up.

We are considering the reconsideration of the benefit. My probing amendment asks what is intended by subsection (2)(b), which states:

    ``the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct''.

Subsection (5) makes it clear that a fresh decision should be based upon a reconsideration of the benefit, rather than whether a person had a criminal lifestyle in the first place, which originally sprang to my mind. We should consider what should happen if a court concluded that a person did not have a criminal lifestyle, but subsequent evidence emerged to indicate that he did. The situation of a defendant who is convicted when the court does not have all information about his previous convictions is not unheard of. I have seen that happen, and observed defendants being convicted when the court was ignorant of their previous convictions.

The definition of a person's criminal lifestyle arises from whether they have committed a particular offence or a series of offences. What would be the situation be if, subsequent to a conviction, it were to emerge that, because the wrong button had been pressed on the police computer, the court—having decided that there was no benefit from that criminal conduct—discovered that the person fell within the general criminal conduct provisions?

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Prepared 27 November 2001