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Viscount Goschen: In the noble and learned Lord's introductory remarks he took care to discuss certain offences which were not to be included in the new schedule. Among those he listed that of terrorism activity and pointed to a future amendment that the Government may bring forward which would add some detail.
First, I wonder whether, at this early stage of our consideration in Committee, the noble and learned Lord can go a little further in clarifying the degree to which the Bill could be used, and should be used, towards addressing the racketeering activities of terrorist groups. Clearly a reading of the offences under "lifestyle offences" which are included within the new schedule, such as drug trafficking, money laundering and arms trafficking in particular, may lead one to consider that the racketeering activities of certain terrorist groups, particularly those within Northern Ireland, would be squarely caught. So anything further that the Minister could say at this stage would accelerate our proceedings as these matters are likely to come up on a number of other occasions.
Secondly, will the Minister accept that the list to determine whether or not a criminal lifestyle is being enjoyed by a specific individual should be used with care? It does not in fact give a definitive indication both in terms of the offences omittedthere are proper reasons why that should be soand also on the question of degree. To take one example, I looked at the paragraph on intellectual property. Paragraph 6(1)(c)refers to,
One can envisage circumstances where someone makes a recording of a CD for their own personal use, or downloads an MP3 file from the Internet, thereby stealing someone else's intellectual property. I understand that the law is still somewhat of a grey area
The Earl of Mar and Kellie: Will the noble and learned Lord clarify a point for me? I may well have got the wrong end of the stick on this point. Believe it or not I am going to talk about cutting down trees and I am also going to talk about intimidation, though not necessarily at the same time.
Intimidation is excluded from this provision. Is somebody enjoying a criminal lifestyle who regularly makes a habit of intimidating competitors so that they go away and the person is then able to purchase property, for example, at a lower than market value because there was no competition? Similarly, a developer may buy a site, cut down trees, improve views and, more to the point, improve site value and therefore, by acting in that, on the face of it, minor illegal waycutting down trees without a licence clearly acquire a lot more money as a result. Is he leading a criminal lifestyle?
Lord Williamson of Horton: Can the noble and learned Lord say whether, when producing this list of offences, the Government considered the issue of large-scale smuggling by organised gangs? The only reason I raise the point is that there is a considerable amount of money at issue. The Government have published figures showing a loss of revenue of £2.5 billion and therefore a large amount of money is swilling about in consequence.
I agree with the text of Amendment No. 3. I do not have any difficulty with it. But I should like to know whether or not this point was considered since it is a substantial amount of money which forms the proceeds of crime. That money goes somewhere and is not easily recovered.
I thank the Minister for responding positively to concerns raised in another place by my honourable friends. The new schedule gives clarity and we have no doubt that it will considerably assist the assets recovery agency and the courts. The introduction of this new schedule much improves the Bill. Further, we are pleased with the important concession that all regulations made by the Secretary of State under this provision will be subject to an affirmative resolution of both Houses, in which case Amendment No. 82, which seeks to leave out Clause 75(2)(c), is unnecessary.
I was interested to hear what the Attorney-General said in relation to certain offences that are not listed. Perhaps I may refer to one in particular and use this as an excuse and an opportunity to make a plea to the noble and learned Lord. He referred to child
In his response to our amendment referring to the Terrorism Act 2000, we understand the Minister to say that the Government will bring forward an amendment to take account of that point. Clearly racketeering is an important issue, as mentioned by my noble friend Lord Goschen. Indeed, I support my noble friend in his request for the Attorney-General to expand on that at this stage as it is so important and will assist us through the passage of this Bill.
We agree that a cautious approach should be taken to this matter. It will be helpful to hear the Attorney-General's response to the various questions concerning the parameters of the list. We heard what the Minister had to say with regard to Amendments Nos. 74 and 75 and so we shall not be moving them. That applies also to Amendment No. 80 and related amendments.
That said, in relation to Amendment No. 83, will the noble and learned Lord respond to the proposal to prevent a finding of a criminal lifestyle solely on the basis that a single offence has been committed which lasted for a period of at least six months? In our view, that category is unduly broad and any such offences should be specified under the new schedule of lifestyle offences proposed by the Government.
I am perhaps less concerned about the parameters of the schedule depending upon the Government's response to a proposal that I shall put forward when we reach Amendment No. 13, which relates specifically to the discretion of the court. On that basis I shall not press any of the amendments we tabled following on from Amendment No. 3 and await with interest the Minister's response.
Lord Goodhart: Perhaps I may intervene very briefly. While I can understand and appreciate the arguments in relation to the amendments to Clause 70, which would exclude any power of the magistrates' court to commit a defendant to the Crown Court whether it was for general or specific criminal conduct, I do not entirely agree with the noble Baroness, Lady Buscombe, that the amendments to Clause 75 are inappropriate. I agree that it would not be right to limit those to indictable offences or to either way offences. However, there are serious arguments for saying that before one can describe someone as having a criminal lifestyle they must at least have committed offences which are punishable by imprisonment. If a person has demolished a listed building without planning consent, or committed another offence which does not carry imprisonment as a penalty, perhaps he or she should be pursued for profits made as a result of particular criminal conduct or for a civil recovery order. Even if committed on more than one occasion, it does not seem appropriate to decide that that constitutes a criminal lifestyle.
What kinds of offence are contemplated by paragraph (e)the offence committed over a period of six monthsand why is it necessary to include those as constituting a criminal lifestyle? If particular offences can be identified, I agree with the noble Baroness that they should be listed in the schedule.
Lord Goldsmith: First, I am grateful for the warm welcome that noble Lords have given to the proposed amendment. I have spent a number of years in practice close to the noble Viscount, Lord Bledisloe. I am well aware of his interest in technical matters. Amendment No. 81 forms part of the same grouping; the two plainly go together. I hope he will agree that his objections, although soundly based, do not give rise to any difficulty. Noble Lords well know where we are. As long as both amendments are passed, the purpose of the schedule will be clear.
I shall deal with some of the questions and return to the main points. The noble Viscount, Lord Bledisloe, also asked about the position in relation to blackmail. He is right. Because the offence under the Theft Act is a single offence it would cover a single instance of blackmail which did not constitute extortion. As a matter of English law, in the definition of the offence, there is no way of distinguishing between the one and the other.
However, there are two important safeguards. It is important to bear them in mind when considering that case and certain other cases. First, the order will not be made save where the prosecutor asks for confiscation. One would not expect that to take place if there were a single isolated instance of an opportunistic blackmail of the kind to which the noble Viscount referred. Secondly, under Clause 11 the court always has the power not to apply the assumptions if there might be a serious risk of injustice. That is a second safeguard against the instance where there would be an isolated example which, in the court's view, did not justify the finding.
As I made clear, whether to include blackmail was not an easy decision precisely because of the point to which the noble Viscount refers. It was thought on balance that it was right to do so in order to catch the important extortion and protection racketeering type of offences.
I turn to the relationship with terrorism to which the noble Viscount, Lord Goschen, and other noble Lords referred. We need to bear in mind that Section 23 of the Terrorism Act 2000 already sets out a discrete forfeiture scheme for persons convicted of those terrorist fund-raising offences. The scheme enables the forfeiture of funds which are intended for use in terrorism and other similar property. Theoretically, there is nothing to prevent a confiscation order under the Bill in respect of the benefit generated to the defendant by the offence as well as a forfeiture order under the 2000 Act in respect of the benefit generated for the terrorist cause. Those could be made in the same proceedings. I suggest that that would give the flexibility which the authorities require.
The Bill does not state that terrorist fund-raising is itself a criminal lifestyle offence and, therefore, does not trigger that set of provisions. The Government have not thought it appropriate that it should trigger those provisions. It is not clear that a single conviction for terrorist fund-raising would be indicative that the defendant is likely to be living off the proceeds of crime. It indicates that he has certain ideological or other convictions and political aspirations but not perhaps that he is a lifestyle criminal. That is the thinking underlying the existing provision. The Government are likely to return to the matter on Report. If I can provide the noble Viscount, Lord Goschen, before then with further information on the detail, I shall write to him.
The noble Earl, Lord Mar and Kellie, raised two points, including the question of environmental offences. Again in accordance with Government's overall approach, the question is whether a single conviction is indicative of a criminal lifestyle. The Government would not consider that appropriate. I shall come back to the issued raised by the noble Baroness, Lady Buscombe, and the noble Lord, Lord Goodhart, on Amendment No. 83, with regard to a series of offences committed over a period of time. I hope that I have indicated that a careful approach has been adopted in putting together the schedule.
I should mention two other examples which were referred to. The noble Lord, Lord Williamson, referred to smuggling. We are considering whether to include this sort of offence. His observations were helpful. We shall make our views known on Report.
The noble Viscount, Lord Goschen, referred to the copyright offence. The relevant definition of the offenceI hope that I have it right from recollectioninvolves making such a recording for sale or hire; in other words, it is for commercial purposes. Therefore, the example he gives of someone making it for his or her own purpose does not fall within the scheduled offence.
Once againI mention the same two safeguardsthe prosecutor, or the court if the prosecutor does not do so, would have to decide whether to seek such an order and it would be a matter for the court to decide whether in the circumstances of a particular case there would be a serious risk of injustice if the assumptions were applied. The Government suggest that those are sufficient safeguards to prevent injudicious use of this provision.
I remind the CommitteeI may want to return to this point later in the debatethat the proposal in the Bill is not as tight in some respects as the present law. On the present criteria, for example, it depends whether there is one other offence in the preceding six months or two or more on the indictment in the same proceedings. We have made these provisions tighter for the purposes of consolidating and bringing the different parts of the legislation together.
In opening, I dealt with summary offences. Of course, the schedule does not include summary offences. This situation arises in circumstances where one of the other provisionsfor example, the provision in relation to repeat offencesis triggered. It is important to bear that clearly in mind. Where there are repeat offences, whether a summary or an either-way offence or an indictable-only offence, the Committee may feel that that is strongly indicative of a criminal lifestyle. Again, the assumptions under the Act can be displaced. I shall return to that point. The assumptions arise only where an order is sought and the court has the ability to say that in a particular case there is a serious risk of injustice so the assumption will not be made. For those reasons the Government press Amendment No. 3 and related provisions and they continue to resist those amendments that are still being pursued.