Mr. Wilshire: I am sure that the Minister is right, because parliamentary draftsmen have been writing legislation for a long time and must have been making such qualifications. Does he agree that the wording in clause 7 that states that
``A confiscation order must be made''
is a bold statement? It does not suggest that the order must be made unless something happens. It would be helpful if the clause made reference to that.
Mr. Foulkes: Yes, I have said that we will examine that to decide whether there is an advantage to be gained from including a cross-reference in clause 7. We will clarify that at a later stage.
Question put and agreed to.
Clause 7 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Foulkes: I had hoped that all three clauses were straightforward, although relevant points were raised about clause 7.
Clause 8 establishes the basic rule governing the calculation of a confiscation order. The amount ordered to be paid is described as the recoverable amount. That amount must equal the defendant's benefit or the amount actually available for confiscation, if that is lower. The amount available for confiscation is referred to as the available amount.
The court will calculate the available amount only if the defendant asks it to do so. The onus rests on the defendant to prove that the available amount is lower than the benefit.
Mrs. Helen Clark (Peterborough): The defendant should be involved in order to ensure that assets acquired by true and honest gain are not subject to a confiscation order. Are we leaving to the defendant the whole process of determining what amount of assets will be recovered, especially given that the amount available for recovery is less than the amount enjoyed by the defendant from his criminal conduct?
Mr. Foulkes: I understand the point that my hon. Friend is making, and I shall deal with it later in our debate.
The court will calculate the available amount only if asked to do so by the defendant. The onus rests on the defendant to prove that the available amount is lower than the benefit. If that was not the case, the prosecutor would have to prove that there was sufficient property available to satisfy the confiscation order, which is a tall order in many cases, and virtually impossible when the defendant has hidden assets.
There is a discretion, however, in subsection (3) for the court to make any necessary adjustment to the recoverable amount to take account of claims by victims against the defendant in respect of the conduct concerned. That is consistent with the court's powers to have regard to such claims when making a confiscation order under clause 6(6).
Mr. Grieve: The Minister has touched on a point that will arise when we discuss a later amendment. Who comes within the category of victim? Will they be the victims of the individual offences of which the person has been found guilty, or, more generally, will they be the victims of the general criminal conduct, who may emerge during the investigation? I have always assumed that it was the former, not the latter. There is some imprecision, and I should be grateful for some clarification.
Mr. Foulkes: I agree that clarification is necessary. Perhaps it might be better to refer to the matter when we reach the hon. Gentleman's later amendment.
Subsection (2) makes it clear that in such a case, the revised amount must not exceed the available amount. Subsection (4) is new. It requires the court to deduct from the assessed benefit any benefit that is already the subject of a civil recovery order or a cash forfeiture order part 5. The aim of that is to avoid double recovery of the same benefit.
Subsection (5) is slightly different from the current legislation. Each time the court decides the available amount, it must draw up a statement setting out its calculations. At present, the court is obliged to do that only in cases when it decides that the available amount is lower than the assessed benefit. The purpose of the change is to improve the information available to the authorities when enforcing the confiscation order.
Mr. Wilshire: I am worried about a couple of issues. Some flexibility that is not aimed at assisting the convicted person could be useful. Subsection (1) states:
``The recoverable amount for the purposes of section 6 is an amount equal to the defendant's benefit from the conduct concerned.''
In most cases, that is correct. However, in other cases it could prove utterly impossible to be 100 per cent. certain that the amount was equal to the benefit. There could be a huge dispute about whether it was equal. It may benefit the Bill for the courts to have some discretion. I understand why the amount should not be more than equal to the benefit, and that we should not be taking more than the defendant's benefit as a result of the crime for which he is being convicted. It may assist the court, however, to say that it the amount can either be equal to the amount of benefit or a lesser figure. That is for the benefit not of the convicted person but of the court, because it could recover an amount without there being a protracted dispute about what ``equal to'' might mean. There could well be an argument on appeal when it could be shown that the amount was not equal to the benefit so the order should be declared invalid. I can envisage such a thought process. Will the Minister consider having flexibility under subsection (1), whereby the court could say that the amount would not have to be more than the benefit, but could be less?
Subsection (2) states:
``But if the defendant shows that the available amount is less than that benefit the recoverable amount is . . . the available amount.
It would be worth exploring the possibility of having flexibility in such circumstances, too. It does not take too much imagination to know that someone in such a position will do his or her level best to make sure that the available amount is as small as possible. However clever the lawyers are, however efficient the court is and however many accountants pore over such information, there will still be even cleverer lawyers and accountants who will reduce the maximum amount to a much smaller available amount.
I fully accept that it is wrong that we should seek to take away from peopleeven criminalsproperty or assets that they have acquired legally and legitimately, but I do not understand why a convicted criminal who has managed to spirit away some of the proceeds of crime should not at a later date be held to account for the money that has gone walkabout, by targeting the assets that he subsequently acquires legitimately. Someone who has spirited away £2 million or £3 million of the amount that should be paid may suddenly win a £15 million jackpot on the lottery. That person will have avoided paying £2 million or £3 million of the ill-gotten gains of crime just because he managed to reduce the available amount, so I do not understand why he should not subsequently be required to repay the proceeds of crime when he suddenly finds himself in pocket. That does not fly in the face of my understanding of justice. Under subsection (2), it may benefit the court to say that the amount recoverable is either that or a sum that it may decide. The arrangement would then be flexible and could take account of what might happen subsequently.
Mr. Hawkins: I wish to raise a point slightly different from that raised by my hon. Friend. In our earlier proceedings, those of us who have had some experience of the way in which the old drug trafficking orders worked discussed the length of time that the courts took after the original criminal conviction. I hope that the Minister will be able to say whether the Government have made an assessment of how much court time is likely to be taken up in cases when the defendant asks for the matter to be assessed. All members of the Committee are concerned about pressures on court time. I understand why the Government say that they are putting the onus on the defendant because the prosecution may find it difficult to establish such points. I hope that the Government will have used their experience of how the old drug trafficking orders worked to calculate in what proportion of cases the matter may arise, and how much time will be taken up in court. The Committee will want an indication of that.
Mr. Davidson: May I raise some points with the Minister, initially about subsection (1)? One of my colleagues has reminded me about the relatives of the hon. Member for Beaconsfield, who were cattle rustlers. Will the Minister clarify the amount considered to be equal to the defendant's benefit in the theft of a cow?
Mr. Grieve: I do not think that my relatives committed an offence, because they stole the cattle from the other side of the border. As the law then stood, there would not have been any criminal benefit in such circumstances.
Mr. Davidson: I shall not digress on the subject of cross-border traffic. I do not think that the hon. Gentleman's relatives were involved in a normal commercial arrangementafter all, in his maiden speech he described them as cattle thievesso we can probably leave that aside.
I return to the cost of cattle theft. Is the amount equal to the defendant's benefit the replacement cost of the cow, or the price realised if it is resold? If it is the latter, will there be an obligation on the guilty party to clarify the price for which the cow was sold? That is particularly important in terms of reset. If the price is to stand, will the defendant be obliged to produce the name and address of the person to whom the stolen goods were resold? That would be helpful in some circumstances. The cow could have had value added to itby cutting it into joints, for example. The money received from the sale of the individual parts would then probably be greater than the replacement cost of the cow or the normal resale price. That idea is particularly relevant to drugs. The cost of a kilo package of drugs would be much less than the price realised by selling the same quantity of drugs in small bags. Which amount would be used to calculate the benefit?
I shall now pick up the idea not of the little old lady with three shoplifting offences, but of tachographs, which the Conservatives advanced as a major factor. The Minister should be able to tell us about the defendant's benefit in tachograph offences. Recently, I was reading an article in the 16 June edition of the Leicester Mercuryas one does. The article said:
``Blakes Chill Distribution Ltd was fined a total of £72,000 and ordered to pay £9,000 costs by . . . magistrates after admitting 227 charges of failing to produce tachograph records. The firm, a subsidiary of Express Dairies Plc . . . asked for 217 similar charges to be taken into consideration.''
That seems to represent a consistent pattern of bad behaviour. [Interruption] Yes, as my hon. Friend the Member for Glasgow, Anniesland (John Robertson) says, it reflects a criminal lifestyle.
The article continues:
``The firm failed to produce these records within a permitted time scale during an investigation at its depot. As a result, 168,000 kilometres were missing from the driving records for one month alone.''
That shows that tachograph offences can be serious. Will the Minister give us guidance about how the defendant's benefit would be calculated in such circumstances?