Mr. Grieve: I am happy to do that. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 ordered to stand part of the Bill.
Defendant neither convicted nor acquitted
Question proposed, That the clause stand part of the Bill.
Mr. Grieve: I do not wish to repeat what I said earlier, but there seems to be an issue here. It would be helpful if the Minister could take me through the procedure under clause 29 so that the Committee can understand how it differs from other procedures. If I have understood it correctly, there is a mechanism for confiscating the assets of someone who has not stood trial and who might not otherwise fall within the criteria for confiscation. If that is correct, why are we retaining it when we have a civil power to do exactly that to unconvicted criminals?
As these provisions cast the net so much wider by focusing not on offences or the proceeds linked to an offence, but on the whole criminal life and general criminal conduct, is there not a risk of injustice? After all, it is perfectly possible to bring civil proceedings in someone's absence and it is usually quite easy to prove one's case. Most of us who have been in the civil courts have had to go to court to prove our case in the absence of a defendant. It is not unusual. In those circumstances I seek the Committee's opinion as to whether it is correct to keep that power and extend it across a wide variety of offences and circumstances when an alternative is available.
Stephen Hesford (Wirral, West): I am obliged to the hon. Gentleman for giving way. Subsection (3)(b) contains the appropriateness provision. Does he not accept that if a defendant deliberately absconds, and has done so for a substantial period, it might be more difficult to go after him under the civil procedure? There should be a residuary element under this procedure if the judge, on examining the full circumstances of the deliberate absconding, decides that it could apply.
Mr. Grieve: I accept that that the hon. Gentleman may have a point. We have not had a chance to look at the civil procedure. From what I have read of it, it will apparently be a powerful tool in the hands of the director for recovering money from individuals who have not been convicted of offences. There may be—[Interruption.]
The Chairman: Order. Just because the hon. Member for Glasgow, Pollok is in his dinner suit and looks like he is moonlighting for the Refreshment Department, other members should not discuss it while the hon. Gentleman makes his case.
Mr. Grieve: The civil recovery procedure may create problems in relation to legal proceedings being brought against an absentee. In my opinion, it is perfectly possible to cure that by amending the procedure. In my experience, civil proceedings can be brought against someone who has absconded by serving notice at their last known address in this country. There are a number of other provisions that can be used if necessary, but we should not get away from the underlying principle.
The confiscation regime has now been greatly strengthened—we supported that in principle—for the purpose of targeting assets linked to crime over a specified period, and those resulting from a criminal lifestyle. However, it depends on someone having a criminal lifestyle and the building blocks that lead up to it. If those blocks are not there because a person has not been convicted, should we use the procedure against that person?
Mr. Hawkins: My hon. Friend's argument reinforces the point raised by the previous amendments, which attempted to delete the references to clause 11 in clauses 28 and 29. It seems odd that we have an exact parallel of the provisions, including the reference to clause 11, in clause 28, where it might be less exceptionable when the defendant has been convicted or acquitted, and in clause 29 where, as the hon. Gentleman says, the defendant will not have been convicted or acquitted particularly as there will have been no conviction—is very odd indeed.
Mr. Grieve: I agree with my hon. Friend. The best thing that I can do now is to listen to other Committee members and, in particular, to the Minister. If we find that there is a point to be made, perhaps we can have a more developed debate on the subject.
Mr. Carmichael: I find myself in some sympathy with the argument of the hon. Member for Beaconsfield, which I urge the Minister to consider. It strikes me that we are in danger of dealing with a provision that is a relic of previous legislation and does not take sufficient account of later provisions that provide for recovery through the civil courts without the need to obtain a criminal conviction first.
I remind the Minister that part of this concern was raised on Second Reading. The Bill should include a clearly defined hierarchy of the different options that are open to the authorities when seeking to confiscate assets. If that were included, many of the hon. Gentleman's concerns, which I share, may be answered.
Mr. Hawkins: The hon. Gentleman, with whom I agree, will recognise that we tabled amendment No. 115, which seeks to delete clause 29. It was not selected because it would amount to a clause stand part debate and I understand the reason for that. Does the hon. Gentleman agree that we should delete the clause altogether?
Mr. Carmichael: No. I am not yet sufficiently persuaded. I chose the words ``some sympathy with'' quite deliberately. I wait to hear what the Minister has to say, but it is appropriate that the concern has been raised, and will perhaps be addressed later.
The Chairman: Order. Before I call the Minister, may I clarify that the amendment was not selected because, as the hon. Member for Surrey Heath rightly said, it is a wrecking amendment and the same result could be achieved by dealing with the clause?
Mr. Ainsworth: I wish to make a point, which I hope will not provoke the hon. Member for Beaconsfield or the Chair. We are considering an substantial issue and it is a great shame—I will put it no more strongly than that—that, having agreed a programme motion, and having adjusted it to accommodate issues as we were requested, we have come to consider this matter only now, after we have debated subjects such as whether to replace the definite article with the indefinite article, and whether to replace three words with one, when there is no discernible difference between the alternatives. I hope that that was not the intention behind some of our previous debates.
Clause 29 enables the court to make a confiscation order in absentia, when criminal proceedings have been started against a person who absconds before conviction. The clause's key change is to extend the power to make a confiscation order in absentia: that used to apply only to absconding drug offenders but will now also apply to people who have been charged with other crimes. The provision exists in legislation relating to drug offences, but we are broadening it—so the provision broadens with the legislation. The justification for the power is the same as in clause 28: no defendant should escape confiscation by absconding.
If a person flees justice, it would not be right for them to be able to frustrate a confiscation order in its entirety. I appreciate that there are good reasons why our criminal justice system does not generally allow proceedings to take place in absentia, but that does not mean that such proceedings should be prohibited when there are good reasons for them.
There are several safeguards: the main one is that of legal representation for the absconder, and I can confirm that such representation will always be provided in the form of amicus curiae— a term with which hon. Members who are lawyers and barristers will be more familiar than I am. Moreover, third parties are allowed representation at an absconder's confiscation hearing, even though that is not possible at an ordinary confiscation hearing. That is because, at an ordinary confiscation hearing, the defendant can call witnesses who might be third parties.
In the absence of the defendant, a wider right of representation should be permitted. In addition, an absconder who returns and is acquitted, or who is not proceeded against, can have that confiscation order cancelled, and there is special provision for compensation under such circumstances.
The hon. Member for Orkney and Shetland said that he had some sympathy with the point that was raised by the hon. Member for Beaconsfield. He said that he would feel more comfortable if there were a hierarchy in respect of the use of the procedure. One of the main points made in that regard was that civil recovery is appropriate, and that in certain circumstances it should be used rather than confiscation.
I do not know whether the hon. Gentleman is objecting to the fact that the hierarchy is not written into the Bill, but I assure him that there is intended to be a hierarchy. I believe that I have distributed the guidance that will be given for the use of these powers to all Committee members, and that hierarchy clearly states that the pursuit of the criminal through normal criminal proceedings should come first and foremost; that confiscation—under part 2 as it applies to England and Wales, and under part 3 as it applies to Scotland—should come second; and that only in cases in which those are not being considered should we consider civil recovery under part 5.
That hierarchy does exist. Part may be usable in principle, but I invite the hon. Gentleman to consider when such circumstances may arise. Proceedings have already commenced. The charge has been made. In all probability—although not necessarily—a restraint order has been placed on the defendant. Let us suppose that the defendant absconds in the middle of the proceedings. If he reappears, he has the ability to challenge the confiscation order, and as I have said, he can knock it down and receive compensation in such circumstances, too.
Is it right that, in those circumstances, we oblige the law and order authorities to abandon the case and to pick up with a wholly separate civil recovery procedure to pursue the assets? I recognise that that point is substantial and important.