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Baroness Buscombe: I entirely support my noble friend Lord Brooke and defer completely to his experience.

Lord Rooker: I was almost about to say the same. I have never set foot on the island of Ireland, but it is

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not so easy to carry out law enforcement activities on a small island with a single community as it is in a large country with millions of people. Therefore, the noble Lord's tribute to the bravery of the officers concerned is wholly justified. Although I cannot accept the amendments today, we shall accept the idea at another time. As Bob Ainsworth said in reply to the debate in the other place, we shall examine the matter further.

At present, anonymity is available only to police and to Customs officers and in very limited circumstances in relation to the investigation of terrorism. Civilian staff working for bodies such as the Crown Prosecution Service and the Serious Fraud Office have no statutory right to anonymity. However, we have given the matter further consideration. At a suitable point in the Bill—which I understand to be Part 12—the Government will bring forward an amendment dealing with the protection of the identity of members of staff of the agency. We shall have a full opportunity then to debate the issue.

It may be useful for future debate if I say that the amendment that we intend to table will empower the director of the agency, and only the director, to direct that members of agency staff may operate using pseudonyms in circumstances where they would otherwise need to identify themselves by name. That will, we believe, provide an important protection in appropriate cases. We shall discuss those in some detail when we reach that part of the Bill.

Viscount Bledisloe: As we shall be returning to this matter, perhaps I may make one point. Does not this provision go too far? The noble Lord, Lord Brooke, said that the identity of the anonymous person would be revealed to the judge. What happens if the judge himself thinks it necessary to reveal it for the purposes of the proceedings to other persons taking part in the proceedings? Strictly, under the Bill as drafted, the judge himself would be committing the offence under subsection (3) of the new clause proposed in Amendment No. 10. I do not believe that there is any exclusion for the judge causing the name to be revealed if he feels it necessary in the interests of justice.

Lord Rooker: The noble Viscount raises an important point. I do not know whether judges have that power when at the moment only limited anonymity is available. I hear what the noble Viscount says and we shall consider the issue with a view to debating it in greater detail. That point will have to be addressed in Part 12 of the Bill.

Lord Brooke of Sutton Mandeville: I am grateful to your Lordships who have taken part in this debate and I am extremely grateful to the Minister for his response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 6 [Making of order]:

Baroness Buscombe moved Amendment No. 11:

    Page 3, line 17, at end insert "and the court considers that there is no real risk of injustice from it so proceeding"

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The noble Baroness said: I shall also speak to Amendments Nos. 13, 15, 78, 97, 98, 144 and 146. I do not intend to speak to Amendments Nos. 87, 140 and 200.

The amendment address one of the most important issues of the Bill, which is judicial discretion and the power of the judiciary to intervene to ensure that justice is done, and seen to be done. There was considerable debate on this issue in another place and a good deal of concern was expressed in your Lordships' House at Second Reading. All the reasoning was laudable and reflected the criminal justice system as we know it and as we wish to protect it. In so doing, we wish to protect the freedom and rights of the individual against the undue and overbearing power of the state.

To put the matter in context, when I first read the Bill I was appalled at the prospect of the courts having no discretion to decide whether an investigation should proceed under Clause 3. We are then confronted with a further new element of criminal lifestyle, which is thrust upon us in Clause 6, wherein a judge can decide only as a matter of fact whether to confiscate a person's assets before the person has had the opportunity to show that such assets were obtained by innocent means.

Our Amendments Nos. 11, 13, 93, 97, 98 and 144 all contend that the court should have a discretion at the outset as to whether an investigation should take place at all. The matter was pressed in another place by my honourable friends the Members for Beaconsfield and for Surrey Heath. My honourable friend the Member for Beaconsfied, Mr Grieve, said:

    "Under the Bill, action can be taken not only at the prosecutor's but at the director's discretion. In truth, it is being turned into a confiscatory administrative mechanism, wholly controlled by the director of the Assets Recovery Agency. That should be a source of concern to those who wish asset recovery to be an instrument of justice and not of oppression".—[Official Report, Commons Standing Committee B, 15/11/01; col. 61.]

Following discussions with the metropolitan police and the head of the serious crime group, we are now suggesting in Amendments Nos. 15, 78 and 146 what we believe to be a sensible, workable compromise. We appreciate that when a prosecutor asks for an investigation he or she is doing so at a stage when a judge or magistrate will not necessarily have the information that underlies the reason for that investigation.

Under Clause 6 the Crown Court can make a confiscation order if certain conditions are satisfied. For example, if a defendant is convicted of an offence in the Crown Court and the prosecutor asks the court to proceed under Clause 6, and if the court decides that the defendant has a criminal lifestyle and has benefited from his general criminal conduct, or if he has benefited from his particular criminal conduct although he does not have a criminal lifestyle, the court must—not may—make a confiscation order. The court has no discretion in the matter. Essentially the only discretion leading to a confiscation order is to be exercised by the prosecutor or the director of the assets recovery agency making the appropriate

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decision to ask the court to proceed under Clause 6. If either of them do that the court must make the confiscation order once it has decided certain issues of fact.

The court must make that order however great the injustice. We think that it could be argued that the court should have discretion in the matter. It cannot be right that what little discretion there is under the clause can be exercised only by a prosecutor, who is hardly an impartial observer. We believe that a judge is the best qualified person. He has the appropriate knowledge, experience and impartiality to decide whether a confiscation order should be made.

Amendment No. 15 would give the judge a discretion not to make a confiscation order if he felt it inappropriate to do so. If the prosecutor or the director of the assets recovery agency does not like that decision, he or she can appeal. The noble and learned Lord the Attorney-General may say that our amendment is unnecessary because of Clause 11(6). Clause 11 refers to assumptions to be made in case of a criminal lifestyle and subsection (6) states that,

    "the court must not make a required assumption in relation to particular property or expenditure if . . . there would be a serious risk of injustice if the assumption were made".

That is not sufficient. At this stage of the proceedings, the court must be given proper discretion on all the facts before it decides what is just. I beg to move.

4.45 p.m.

Lord Goodhart: This group of amendments includes three—Amendments Nos. 14, 95 and 145—in my name and that of my noble friend Lord Thomas of Gresford. I should say at the outset that our views are similar to those of the Conservatives, as expressed by the noble Baroness.

The Government are showing an alarming lack of trust in the courts, and perhaps an equally alarming confidence in the prosecutor or director to reach the right decisions. The Government are attempting to impose rigid rules. I have no great problem with the idea that if a defendant is convicted in the Crown Court, or committed there for sentence, the court must at least consider making a confiscation order if it is asked to do so by the director or the prosecution. However, that consideration opens up a two-stage process in cases when a criminal lifestyle is alleged.

The court has to decide whether the defendant has a criminal lifestyle, and if it finds that he does, under Clause 11, it has to investigate what benefit, if any, the defendant has obtained from that lifestyle and order the confiscation of the benefit. Criminal lifestyle is defined in Clause 75.

The court's decision at stage one of the inquiry—whether there is a criminal lifestyle—depends almost entirely on the defendant having been convicted of one or more offences included in the list, or three or more unlisted offences. In the great majority of cases, previous convictions will be formally proved and that will be that. But the formality of the requirement in

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Clause 75 leaves the court with no effective discretion. We know that three minor shoplifting offences for which a defendant has been convicted over a period of six years would constitute a criminal lifestyle. So, too, as it appears from the reply of the noble and learned Lord the Attorney-General to a previous group of amendments, would a conspiracy for apparently any purpose that had continued for a period of six months, or more; for example, a conspiracy by members of an environmental group deliberately to cause some relatively minor form of criminal damage as part of a protest.

The court cannot say, technically, that the requirements of Clause 75 are satisfied if the defendant does not, in reality, have anything that could be called "a criminal lifestyle". The Government can, and do, say that in such a case the prosecutor would not ask for a confiscation order—probably not. But there will be cases, although perhaps not quite so obviously non-lifestyle as the ones that I mentioned, where an over-zealous prosecutor might ask for a confiscation order on the basis of general criminal conduct where it was unreasonable to press for such an order.

The Government will then point out that there is a safety net in the courts' jurisdiction in Clause 11(6). The courts can refuse to make an assumption under Clause 11 if there would be a serious risk of injustice if an assumption were made. Indeed, I acknowledge that that is a matter of some help. However, it still means that the defendant will have to go through the process of providing information about his assets, identifying how they were paid for, and so on, which will be extremely onerous. Where the defendant's lifestyle is criminal in a purely technical sense only under Clause 75 and not so in reality, it would surely be much better for the court to have power to stop the case at stage 1 and not have to continue with the full investigation required by stage 2.

The Government are saying, "We can't trust the courts to exercise that discretion reasonably. Therefore we have to force everyone to sit through the lengthy hearing of an application, which should not have been brought to begin with". I accept that the fact that convictions are nominally trivial does not always mean that there is not a real criminal lifestyle, but in deciding what is just the prosecution could outline the case against a defendant—and would no doubt do so—and could allege that the conviction was only the tip of the iceberg and that, therefore, the confiscation order was justified.

In order to achieve a just result, we need a power for the court to bring the proceedings to an end at stage 1 when the court decides whether or not a criminal lifestyle is proven, if the court is satisfied that, in all the circumstances of the case, it would be unjust to allow the proceedings to continue on the basis that there was a criminal lifestyle.

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