|Proceeds of Crime Bill
Mr. Wilshire: I am grateful for your clarification, Mr. Gale. I asked that very point of the Clerk earlier this morning and received a helpful reply. I read clauses 15 and 16 and reached the conclusion that there was an issue to be dealt with. I am not disagreeing with the ruling, but clause 7 says what must or must not happen regarding sentencing. It refers to the time at which sentencing takes place, whereas clauses 15 and 16 refer to postponements of the making of an order. It could be argued that the two matters are linked, but I do not consider that they are the same. The general principle under clause 7 is important. It is correct and needs to be thought about.
Under the clause, the position is unfortunate to say the least. It could be more serious if the power were abused. A lawyer would probably tell me that I have misunderstood matters but, as a layman, I would have thought that, if I am called before a court, tried and convicted of an offence, simple common decency, in a civilised society, should dictate that I am sentenced as quickly as possible, rather than being left dangling for an indefinite period before I know my fate. Not letting someone know what their future is, on a random basis, for an indefinite period, is not the way that a civilised society should conduct itself. It therefore seemed to me, when I looked at the amendments, that a clause of this sortwithout reference to clauses 15 and 16, to which I shall refer in a moment, if I may, Mr. Galeunder which one cannot be sentenced before something happens, should have a time limit on it, irrespective of what might be covered in subsequent clauses. There is therefore an argument to be made that the clause is not adequate.
Mr. McCabe: I have some sympathy with the hon. Gentleman's point of view. How would he ensure that the individual and his or her legal representatives did not use the safeguard that he is trying to develop to string out the process for as long as possible? If he wants to build in a time limit, part of that should require the individual and his or her legal representatives to co-operate fully with the process, and not to try to string it out to avoid sentencing when they are on bail and no doubt planning to abscond.
Mr. Wilshire rose
The Chairman: Order. These are complex issues. I draw the hon. Gentleman's attention to clause 15(4), which sets down the period to which he refers. As I explained clearly, the reason for not accepting the amendment was that it was at an inappropriate place in the Bill. It is in order for him to have this discussion, argument and debate, but he would need to table an amendment to clause 15, not clause 7.
Mr. Wilshire: I understand that, and I hope that that is what will happen. Again, I feel under constraint because if I say much about clauses 15 and 16, Mr. Gale, you will rightly rule me out of order because we have not reached that part of the Bill. As I understand clause 15(4), it refers to a two-year period during which the process of making a confiscation order can take place. Clause 7 refers to the point at which sentence is carried out, not a delay in the investigation. As a non-lawyer, it seems to me that we should be able to address the principle of how long a sentence can be delayed, rather than how long a process can be delayed before sentence, as a separate issue.
I am grateful to the hon. Member for Birmingham, Hall Green for saying that I may have a point in this regard, and he raises a perfectly valid sub-point that, if we safeguard the interests of the convicted personI make no apologies for wanting to do that, in a civilised society, under those circumstancessomebody may try to take advantage of that. I accept that. However, there comes a moment when the layman's common sense must give way to the lawyer's expertise. That may be a bit of a weak response, but I am sure that it is not beyond the wit of the legal profession to pick up my point and find a formula of words that would safeguard the interests of the convicted person and also pick up that sub-point. I do not disagree with the hon. Gentleman in principle, but sadly, if he wants to know how to put that into practice, I cannot tell him.
Mr. Foulkes: I do not want to be sycophantic, Mr. Gale, but it would help if both Government and Opposition Members were to take account of your advice. Perhaps I was tempting fate when I said that this matter was straightforward. However, I am a non-lawyer, if there is such a thingto put it another way, I am not a lawyerand it seems clear to me that there will not be a delay in sentencing. In simple cases, a confiscation order can be taken account of before the court comes to a view on whether the defendant should be fined as part of the sentence.
In cases in which it takes a long time to make a confiscation order, the prosecutor or the director will apply for a postponement so that there will be not be a delay in sentencing. In simple cases, people will be sentenced immediately after the confiscation order, and that will be taken into account in deciding whether a fine should be imposed, and in complicated cases, a sentence will be passed and a decision about the confiscation order will be taken later on. That is perfectly simple.
Mr. Wilshire: It might be perfectly simple to the Minister, who has the benefit of the advice of lawyers and civil servants, but it does not appear to be simple to me, and I disagree with him.
As the Minister has saidand as you, Mr. Gale, have said from the Chairclause 16 states that it is possible to proceed to sentence if there is a delay, and that is being used as a reason for arguing that I should not be expressing concern about the matter. However, that clause also states that if, after a person is sentenced, it is decided that that sentence is wrong, it is possible to change it. If that is the safeguard that is being offered to the concerns that I have expressed with regard to clause 7, it is not strong. Legislation that says, ``We will quickly put you out of your misery, and subsequently change our minds if it suits our purpose,'' is not a fair response to the issue that I am raising.
Mr. Field: One of the concerns that is shared by many hon. Members of my party relating to the Billas well as to this specific clauseis that it is driven by the desire to confiscate money that has been illegally acquired by criminals, and is more interested in the issuing of confiscation orders than in the doing of justice. A balance must be struck between confiscation orders and sentencing. In that regard, the issue of timing is key. I doubt whether Labour Members would be greatly troubled by the notion that a sensible balance should be struck by applying clause 7 rather than clause 15(4).
Mr. Wilshire: I agree with my hon. Friend. By raising such matters, my hon. Friends and I are not seeking to undermine the principles that underpin the Bill. Those of us who stand up and say that we still believe that a convicted person has some rights do not need to apologise. A wish to uphold common decency in a civilised society is one of the reasons why we should proceed in the way that I am suggesting.
That is my general point, but I also have a specific question. The Minister stated that clause 7 means what it says if there is no postponement. I understand that, but, although I do not know how to draft a Bill of this sort, I am mystified by why, if clause 15 and 16 are relevant to clause 7, they are not mentioned in it to draw attention to the fact that they will also deal with the matter. If he was correct in saying that we must treat clause 7 as meaning what it says if there is no postponement, why does not it contain a statement such as ``Where there is no postponement a confiscation order must not be made''? I am sure that the lawyers know the answer, but it is not only lawyers who need to understand what is going on.
I will listen carefully to the Minister's response to the general points, but I would also be interested to hear his explanation of why the issues that he claims are contained in the clause are not actually spelled out there.
Mr. Foulkes: The hon. Gentleman has made a reasonable point about reference being made in clause 7 to clauses 15 and 16. An amendment to clause 7 that stated, for instance, ``subject to the provisions under clauses 15 and 16'' might have been acceptable to the Chair, but I cannot speculate whether that would have been the case. I would not have had any objection if an amendment had been tabled under clause 7 that drew attention to either clause 15 or clause 16. Those clauses are integral to the Bill, as is clause 7. Clauses 15 and 16 refer to clause 7, so presumably there is no need for clause 7 to refer to them.
Mr. Wilshire: I am mystified, because clause 7 says something different from clauses 15 and 16. Is it permissible to have a Bill that says one thing in clause 7 and something fundamentally different in clauses 15 and 16?
Mr. Foulkes: I do not think that they are different. Further on in the Bill, there are clauses that qualify earlier clauses. I would not have objected if an amendment had been tabled under clause 7 that referred to clauses 15 and 16.
Ian Lucas: I notice that clause 16(6)(b) refers to section 7 being ignored. However, I accept the point of the hon. Member for Spelthorne (Mr. Wilshire), and it would assist any judge to apply legislation if reference was made in clause 7 to provisions that are subject to clauses 15 and 16.
Mr. Foulkes: We can certainly take that into account, and my hon. Friend and the hon. Member for Spelthorne made a reasonable point. We can examine whether it would aid interpretation to make reference to clauses 15 and 16 in clause 7. That would provide a cross-reference between clause 7 and clauses 15 and 16. I understand that earlier clauses can be qualified legitimately by later ones. However, if a cross-reference would help, we shall examine that.
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