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Lord Goodhart: The other amendments in the group—Amendments Nos. 33 to 35, 113 to 115 and 157 to 159—stand in our names. They refer to the information which the prosecutor or director must place before the court in proceedings for a confiscation order.

Under Clause 17, the director or prosecutor must provide a statement of information. Under subsection (3) the statement of information is a,


in deciding whether the defendant has a general criminal lifestyle and has benefited from it.

The reference is not to "the matters" or to "all matters"; it is merely to "matters". The wording is similar in subsection (4) in relation to information relevant to the assumptions that are to be made under Clause 11. Under Clause 17(5),


    "If the prosecutor or the Director . . . does not believe the defendant has a criminal lifestyle",

it alleges a benefit from his particular criminal conduct.

I believe that the prosecutor or the director should be required to include all information in the statement which he believes is relevant. That would include information which, for example, might be inconsistent with the claim of there being a criminal lifestyle.

Amendments Nos. 33 to 35, as I have said, amend Clause 17 to ensure that all the information which the prosecutor or the defendant thinks is relevant must be included in the statement of information. I accept that it may be the intention anyway, but an amendment of this kind would clarify that and clear up a matter that is not clear at present. The later amendments apply to the Scottish and Northern Ireland situation.

Lord Rooker: Amendment No. 32 relates to an operational matter. The Secretary of State is not the person who is best placed to lay down guidance. We see no reason why the Secretary of State should be required to issue guidance to the director, or to anyone else for that matter, as to the contents of a statement of information. It is not a proper function for the Secretary of State. In any case, we see no reason why the contents of a statement should be formalised. There should be some flexibility to allow the statement to contain what is necessary on a case-by-case basis.

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The amendment relates to existing legislation with which I am personally unfamiliar, but the statement system has been in place for 15 years. I am told that it has been one of the more successful elements in the confiscation regime. We have received no complaints about its operation. After that period of time, therefore, it appears to have been tried and tested.

In response to the noble Lord, Lord Goodhart, we do not believe that the amendments are necessary. The effect of Clause 17 as drafted is that the statement must include all relevant information, simply because it does not contain any exceptions. If the court considers that it needs more information, it can ask for that information under Clause 17(6). I hope that the noble Baroness and the noble Lord find that answer satisfactory.

Baroness Buscombe: I thank the Minister for his response which is a little disappointing. I agree that there should be flexibility on a case-by-case basis. Some form of guidance would not necessarily disallow that flexibility; it might even encourage the production of more information relevant to each case so that a proper judgment could be made as to whether a defendant has a criminal lifestyle. I repeat that information provided by the prosecution is often in practice bald, extremely sketchy and barely existent. We believe that guidance notes would make a positive contribution to the Bill.

However, I hear the Minister. I am disappointed but I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 to 35 not moved.]

Clause 17 agreed to.

Clause 18 agreed to.

Clause 19 [Provision of information by defendant]:

Lord Thomas of Gresford moved Amendment No. 36:


    Page 11, line 24, at end insert—


"( ) Information given pursuant to an order under this section may not be used in evidence against the defendant in criminal proceedings, other than in proceedings under section 6."

The noble Lord said: The purpose of the amendment is that information given under Clause 19 shall not found a subsequent criminal prosecution. That is not the purpose of the clause, which is part of a quasi administrative procedure in which the civil standard of proof operates.

The court will make an order requiring


    "all or a specified part of the information to be given in a specified manner"

and the sanction appears to be not that refusal to obey the order would amount to contempt of court but that


    "the court may draw such inference as it believes is appropriate"

if the defendant fails to respond. I should welcome the Minister's assurance that contempt of court would not arise if an order were not obeyed in those circumstances.

Essentially this is the Saunders point and I can do no better than remind your Lordships of two passages from the judgment of the European Court of Human

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Rights. Paragraph 68 refers to the right not to incriminate oneself, which presupposes that the prosecution in a criminal case seeks to prove its case against the accused without resort to evidence obtained through methods of coercion in defiance of the will of the accused. In that sense, the right is closely linked to the presumption of innocence contained in Article 6, paragraph 2 of the Convention. Your Lordships will recall that Mr Saunders was required to answer questions that were put to him by Board of Trade inspectors.

Paragraph 74 of the judgment stated that it did not accept the Government's argument that the complexity of corporate fraud, the vital public interest in the investigation of such fraud and the punishment of those responsible could justify the marked departure in that case from the basic principle of a fair procedure. It continued that the general requirements of fairness contained in Article 6, including the right not to incriminate oneself, should apply to criminal proceedings in respect of all types of criminal offence, without distinction, from the most simple to the most complex and that the public interest should not be invoked to justify the use of answers compulsorily obtained in a non-judicial investigation to incriminate the accused during the trial proceedings.

I appreciate that that judgment refers to a non-judicial investigation but that does not amount to a significant distinction from the provisions of the Bill. If that is the view that has been clearly expressed by the European Court of Human Rights, our amendment is one that we hope the Government will accept. I beg to move.

7.15 p.m.

Lord Rooker: In the spirit of our debate, I shall consider the matter and return to it on Report.

I shall seek advice on the issue of contempt and will write to the noble Lord, Lord Thomas, well in advance of the Report stage.

Some people might argue that there is a respectable case to be made that evidence provided by the defendant in responding to an order under Clause 19 should be capable of being used against him, or indeed against others in separate criminal proceedings. We do not think that these orders are in the same category as orders to provide evidence under compulsion, such as in Saunders.

Clause 18(6) contains a provision that is very similar to that intended by the amendment. It goes further than the amendment in that it prevents the evidence from being used in the criminal trial of any person, not just the defendant. The provision has nothing to do with the Saunders judgment. The thinking underlying Clause 18(6) is that defendants are more likely to be honest and forthcoming about their benefit if the evidence they provide in response to a statement of information cannot be used to incriminate them or their associates.

Our thinking hitherto has been that Clauses 18 and 19 are different in the sense that Clause 18 statements invariably make allegations as to the defendant's

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criminal conduct, whereas Clause 19 orders are unlikely to do so. It may be that the same issue is capable of arising under both clauses in much the same way.

However, as I said, I shall consider the amendments tabled by the noble Lord, Lord Thomas, and come back to them on Report.

Lord Thomas of Gresford: I am grateful to the Minister for his response and ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clause 20 [No order made: reconsideration of case]:

[Amendment No. 37 not moved.]

Lord Rooker moved Amendment No. 38:


    Page 12, line 1, leave out paragraph (b).

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 [No order made: reconsideration of benefit]:

[Amendments Nos. 39 to 41 not moved.]

Lord Rooker moved Amendment No. 42:


    Page 13, line 43, leave out paragraph (b).

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Order made: reconsideration of benefit]:

Lord Rooker moved Amendment No. 43:


    Page 14, line 32, at end insert—


"(aa) there is evidence which was not available to the prosecutor or the Director at the relevant time,"

The noble Lord said: I am not complaining about the noble Baroness, but by not moving the first amendment when many others are grouped with it, she presents considerable difficulty to me. I shall explain the thinking behind the Government's amendments but I shall not discuss the amendments tabled by the Opposition because they were not moved.

The government amendments arise out of a point raised in the other place about Clause 22, as recorded in the Official Report on 27th November. First, under Clauses 20 and 21, the prosecutor and the director of the agency are allowed to apply to the court for a revaluation of the defendant's benefit from crime only if they have new evidence. Currently, there is no requirement of this kind in Clause 22. In theory, they could apply to the court on the basis of evidence that they have held in previous proceedings.

The question raised in the other place was whether the clause should not be brought into line with Clauses 20 and 21 in this respect. We agree that it should. The first purpose of the amendments is to make that clear. The director and the prosecutor will be able to apply under Clause 22 only if their evidence is new.

Secondly, our intention has always been that more than one revaluation should be possible under Clause 22. In looking again at the reconsideration clauses, we

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doubt whether the wording of the clause currently achieves that intention. It appears to allow for one application only. We have accordingly taken the opportunity to make it quite clear that there may be more than one revaluation under Clause 22. We have also made changes to Clause 23, making it clear that more than one application can be made under Clause 23.

Finally, Clause 23 permits the prosecutor and director to apply to the court for an increase in the confiscation order where more realisable property comes to light. Arguably, the clause does not allow such an application to be made where a confiscation order has been varied under Clause 22. We have taken the opportunity to put it beyond doubt that such applications are permissible.

These government amendments are very much fine-tuning amendments in one of the more technical areas of the Bill. However, they will help to ensure that it operates exactly as we would wish. I beg to move.

On Question, amendment agreed to.


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