| Previous Section | Index | Home Page |
Amendment made: No. 79, in page 3, line 4, leave out from "offences" to end of line 5.—[Mr. Bob Ainsworth.]
'(1) This section applies where a confiscation order has been made in relation to any person and the prosecutor or the Director (as the case may be) has not satisfied the court that the person's interest in his family home has been acquired as a benefit from his criminal conduct.
(2) Where this section applies, then, before the receiver disposes of any right or interest in the person's family home he shall—
(a) obtain the relevant consent; or
(b) where he is unable to do so, apply to the court for authority to carry out the disposal.
(3) On an application being made to it under subsection (2)(b), the court, after having regard to all the circumstances of the case including—
(a) the needs and financial resources of the spouse or former spouse of the person concerned;
(b) the needs and financial resources of any child of the family;
(c) the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b),
may refuse to grant the application or may postpone the granting of the application for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.
(4) Subsection (3) shall apply to an action for the purpose of obtaining vacant possession of that home in order to dispose of it brought by the receiver as it applies to an application under subsection (2)(b) and, for the purposes of this subsection, any reference in subsection (3) to the granting of the application shall be construed as a reference to the granting of the relief sought in the action.
(5) In this section—
"family home", in relation to any person (in this subsection referred to as "the relevant person") means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the relevant person and his or her spouse or by the relevant person's spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child of the family;
"child of the family" includes any child or grandchild of either the relevant person or his or her spouse or former spouse, and any person who has been treated by either the relevant person or his or her spouse or former spouse as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be; and
"relevant consent" means in relation to the disposal of any right or interest in a family home—
(a) in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;
(b) where paragraph (a) does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person.'.—[Mr. Grieve.]
Brought up, and read the First time.
Mr. Grieve: I beg to move, That the clause be read a Second time.
Madam Deputy Speaker: With this it will be convenient to discuss the following: New clause 3—Disposal of family home: Northern Ireland—
'(1) This section applies where a confiscation order has been made in relation to any person and the prosecutor or the Director (as the case may be) has not satisfied the court that the person's interest in his family home has been acquired as a benefit from his criminal conduct.
(2) Where this section applies, then, before the receiver disposes of any right or interest in the person's family home he shall—
(a) obtain the relevant consent; or
(b) where he is unable to do so, apply to the court for authority to carry out the disposal.
(3) On an application being made to it under subsection (2)(b), the court, after having regard to all the circumstances of the case including—
(a) the needs and financial resources of the spouse or former spouse of the person concerned;
(b) the needs and financial resources of any child of the family;
(c) the length of the period during which the family home has been used as a residence by any of the persons referred to in paragraph (a) or (b),
may refuse to grant the application or may postpone the granting of the application for such period (not exceeding 12 months) as it may consider reasonable in the circumstances or may grant the application subject to such conditions as it may prescribe.
(4) Subsection (3) shall apply to an action for the purpose of obtaining vacant possession of that home in order to dispose of it brought by the receiver as it applies to an application under subsection (2)(b) and, for the purposes of this subsection, any reference in subsection (3) to the granting of the application shall be construed as a reference to the granting of the relief sought in the action.
(5) In this section—
"family home", in relation to any person (in this subsection referred to as "the relevant person") means any property in which the relevant person has or had (whether alone or in common with any other person) a right or interest, being property which is occupied as a residence by the relevant person and his or her spouse or by the relevant person's spouse or former spouse (in any case with or without a child of the family) or by the relevant person with a child of the family;
"child of the family" includes any child or grandchild of either the relevant person or his or her spouse or former spouse, and any person who has been treated by either the relevant person or his or her spouse or former spouse as if he or she were a child of the relevant person, spouse or former spouse, whatever the age of such a child, grandchild or person may be; and
"relevant consent" means in relation to the disposal of any right or interest in a family home—
(a) in a case where the family home is occupied by the spouse or former spouse of the relevant person, the consent of the spouse or, as the case may be, of the former spouse, whether or not the family home is also occupied by the relevant person;
(b) where paragraph (a) does not apply, in a case where the family home is occupied by the relevant person with a child of the family, the consent of the relevant person.'.
Amendment No. 207, in clause 101, page 60, line 29, at end insert—
'(bb) the needs and financial resources of a person of the same sex as the person concerned, who is and has been for a period of not less than six months, living with the person concerned in a relationship which has the characteristics, other than that the persons are of the same sex, of the relationship between husband and wife;
(bc) the needs and financial resources of any member of the person concerned's family who is and has been, for a period of not less than six months, living with the person concerned in the family home.'.
Amendment No. 208, in page 60, line 31, leave out "or (b)" and insert "(b), (bb) or (bc)".
Amendment No. 209, in page 60, line 35, at end insert—
'(3A) Before granting an application under subsection (3) above, the court must take into account representations made to it by any of the persons referred to in paragraphs (a), (b), (bb) or (bc) of subsection (3);
(3B) In making representations under subsection (3A), any of the persons referred to in paragraphs (a), (b), (bb) and (bc) of subsection (3) shall be entitled to appear before the court.'.
Amendment No. 210, in page 61, line 5, at end insert—
'or by the relevant person with a person of the same sex as the relevant person in terms of subsection (3)(bb) or by the relevant person with a member of his family in terms of subsection (3)(bc).'.
Amendment No. 211, in page 61, line 20, at end insert—
'(c) where the family home is occupied by the relevant person and a person of the same sex as the relevant person in terms of subsection (3)(bb), the consent of the same sex partner;
(d) in a case where the family home is occupied by the relevant person and a member of his family in terms of subsection (3)(bc), the consent of the member of his family.'.
Mr. Grieve: When we considered the Bill's confiscation provisions in Committee, it was noted that the provisions for Scotland, which were otherwise being brought into uniformity with those for England, Wales and Northern Ireland through the Government's amendments, remained entirely different in one respect—that is, the safeguards for the disposal of the family home in the event of the various assumptions being made.
During the debate, as the Minister of State, Scotland Office, the hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes), may recall—I could refer him to the relevant passages in Hansard, but I do not want to take up an excessive amount of the House's time—he emphasised the issue of the different regimes that would exist in Scotland and elsewhere in the United Kingdom. He provided the Committee with interesting historical background on why the safeguards for the family home existed in the Scottish system.
The official Opposition did not try to amend the sections on England, Wales and Northern Ireland to include a similar provision, but the Minister undertook—on behalf of the Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East (Mr. Ainsworth)—to consider whether uniformity was desirable for the purposes of safeguarding the interests of spouses or former spouses or the needs and financial resources of any child of the family. However, nothing has happened. I am not criticising the Minister, but I shall be interested to hear why he feels that no further change is necessary.
When I considered the matter before this debate, I found myself inexorably drawn to what I must assume is the opposite conclusion from that of the Minister: that there are compelling reasons for introducing a similar safeguard under the England and Wales regime to that which existed for Scotland, and likewise for Northern Ireland. I shall explain why.
During consideration of the Bill in Committee, I accepted that the equitable jurisdiction that applies in English courts when dealing with property, especially property that may be occupied by a spouse or a child, may provide certain safeguards that would mean that if the
spouse could show that in the course of the marriage she had acquired an equitable share in the property, it is possible that that part of the property might not be seized. I use the word "possible" advisedly, because it is not easy to reconcile the ordinary principles of an equitable jurisdiction with a criminal confiscatory mechanism, as stipulated in part 2.During that debate in the 15th sitting of the Committee, the Minister accepted that the principal responsibility of the court, once the assumption had been made, was to realise the assets, and that must include confiscating the family home.
The matter becomes particularly obvious and glaring in the different regimes that will now exist north and south of the border, as is shown by subsection (1) of new clause 2. It is immediately clear that, under the regime in Scotland, the reversal of the burden of proof that arises when the assumptions are made will not apply if one of the objects of seizure is the family home. The burden will remain on the prosecutor to show that the family home specifically has been acquired as a benefit from the criminal conduct.
| Next Section
| Index | Home Page |