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Mr. Deputy Speaker (Sir Michael Lord): I have no knowledge of the matter to which the hon. Gentleman refers. Ministerial statements are entirely a matter for the Ministers responsible, but the House will have heard the point that the hon. Gentleman has made.
Mr. Salmond: On a point of order, Mr. Deputy Speaker. Have you had notification from the Minister of State, Scotland Office that he is going to make a statement on an interview that he has given to BBC Scotland suggesting that the Electricity Act 1989 should take precedence over planning Acts in Scotland, to allow decisions on the development of nuclear power stations in Scotland to be made here rather than in the Scottish Parliament? If the Minister is going to make statements subordinating Scottish democracy to this Government's nuclear obsession, at least he should have the courtesy to do so from the Dispatch Box, rather than to BBC Scotland.
Mr. Deputy Speaker: That is not a point of order for the Chair.
Mr. Grieve: I beg to move amendment No. 39, in page 3, line 20, at end insert—
'and the court considers that there is no real risk of injustice from it so proceeding'.
Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 41, in clause 8, page 4, line 20, at end insert—
'(1A) But the defendant shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.
Government amendments Nos. 80, 190 to 192, 85 and 86.
Amendment No. 204, in clause 94, page 56, line 11, leave out "three" and insert "four".
Amendment No. 146, in page 56, line 12, at end insert—
'and the court considers that there is no real risk of injustice from it so proceeding'.
Amendment No. 205, in page 56, line 23, at end insert—
'(4A) The fourth condition is that, after considering the evidence contained in a statement of information prepared by the prosecutor under section 104, the court believes that it is appropriate for it to act under this section.'.
Amendment No. 206, in page 56, line 41, at end insert—
'(8A) In making representations to the court under subsection (8), any person whom the court thinks is likely to be affected shall be entitled to appear before the court.'.
Amendment No. 150, in clause 96, page 57, line 16, at end insert—
'(1A) But the accused shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.
Amendment No. 212, in clause 104, page 63, line 11, leave out from first "the" to end of line 12 and insert—
'prosecutor asks the court to act under section 94, the prosecutor shall, within such period as the court may specify, give the court a statement of information'.
Amendment No. 213, in page 63, line 31, leave out "If the prosecutor gives" and insert "After giving".
Amendment No. 214, in page 63, line 32, leave out "he" and insert "the prosecutor".
Amendment No. 215, in clause 105, page 63, line 36, leave out from beginning to "on" in line 37 and insert—
'If the court is acting under section 94 and it is satisfied that the prosecutor has served a copy of the statement of information'.
Government amendments Nos. 258 to 260.
Amendment No. 216, in clause 109, page 67, line 37, at end insert—
'(bb) the prosecutor has evidence which was not available to him when the court decided the amount of the accused's benefit for the purposes of the order,'.
Government amendments Nos. 261, 231, 262 and 263.
Amendment No. 217, in clause 118, page 73, line 16, at end insert—
'(cb) a decision of the court not to act under section 94;".'.
Amendment No. 218, in page 73, line 17, at end insert—
'(3A) In subsection (2), after paragraph (v) insert—
(vi) under paragraph (cb), that the decision not to act under section 94 was inappropriate".'.
Amendment No. 219, in page 73, line 28, at end insert—
'(cb) a decision of the court not to act under section 94;".'.
Amendment No. 220, in page 73, line 29, at end insert—
'(7A) In subsection (4A) after paragraph (b)(v) insert—
"(vi) under paragraph (cb), that the decision not to act under section 94 was inappropriate.".'.
Government amendments Nos. 269 to 275, 233, 276 to 278, 234, 280, 283 and 284.
Amendment No. 147, in clause 162, page 96, line 38, at end insert—
'and the court considers that there is no real risk of injustice from it so proceeding'.
Amendment No. 151, in clause 164, page 97, line 37, at end insert—
'(1A) But the defendant shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment.'.
Government amendments Nos. 178, 193 to 195, 183, 184, 100 and 187 to 189.
Mr. Grieve: Were we to attempt to consider each amendment individually in the time available before the guillotine falls on our proceedings, I fear that we might get into difficulty. Therefore, I intend to confine my remarks to amendments Nos. 39 and 41, which are of considerable importance. However, they are very different and there is no immediate link between them, so they should be discussed separately.
I start with amendment No. 39. As we discussed at length in Committee, clause 6 is the first relating to confiscation orders, which we have debated in respect of new clause 2. On making an order, clause 6 baldly states:
- "The Crown Court must proceed under this section if the following two conditions are satisfied."
- "convicted of an offence or offences in proceedings before the Crown Court"
- "committed to the Crown Court for sentence"
- "committed to the Crown Court in respect of an offence or offences under section 70".
- "the prosecutor or the Director asks the court to proceed"
- "believes it is appropriate for it to do so."
The point was also made on Second Reading that the process may be initiated by a prosecutor when a person has committed offences amounting, perhaps, to no more than having no rear light on their vehicle. As the law will stand, those are offences for gain, because there is undoubtedly a pecuniary advantage in not having or replacing a rear light. As we discussed extensively in Committee, by such small matters a person may be moved into a procedure that the Minister has often acknowledged is draconian. Indeed, it is intended that it should be draconian towards those from whom assets are to be confiscated.
In Committee, we suggested that it might be better if "must" were replaced by "may" to allow some judicial discretion as to whether the process should be initiated. If a prosecutor says that he wants to embark on the process, a judge presented with a convicted criminal may simply reply at the outset, "What are this person's assets? Please tell me what you suspect. The offences appear to be of the utmost triviality." The judge could prevent the process from being initiated if he thinks that an injustice would result. Indeed, such a form of words existed for the Scottish provisions until they were reworded at the request, I am told, of Scottish Labour Back Benchers. The change that we discussed earlier therefore came about.
I acknowledge that the Government have a point about changing "must" to "may" in respect of the signal that might be sent out as to their resolution in dealing with
criminals. Nevertheless, having thought about the matter following our debates in Committee, I still believe, as does the Law Society and a number of organisations, that a safeguard to prevent the procedure from being embarked on would be useful. That is why amendment No. 39 states that the other factor that may be taken into account when the court proceeds is whether
- "the court considers that there is no real risk of injustice from it so proceeding".
- "a real risk of injustice"
I ask hon. Members to consider whether the change would provide the residual safeguard to prevent time and money from being lost and injustice from occurring while in no way detracting from the force of the legislation. I commend the amendment to the House and say bluntly to the Minister that it would create not some loophole through which a criminal could escape the confiscation of his assets, but prevent time wasting in the judicial process. A judge considering what is being sought could say that injustice would result from the court and the prosecutor embarking on an onerous procedure that places great burdens on the accused.
Let me put one or two possibilities to the Minister. Ending up with defendants who fall ill, experience memory loss or suffer brain damage is not unheard of. Indeed, I have represented a person on serious criminal charges who was undoubtedly suffering from mental incapacity resulting from injury. In precisely such a case, the judge might say, "How on earth can this individual rebut the assumptions made against him when the burden is placed on him?" That is what the full thrust of the procedures is all about.
In such circumstances, the power of the legislation would be enhanced by allowing a judge to say at the outset, "This procedure is likely to be unfair and to lead to serious risk of injustice." That would show that Parliament has taken on board the possibility that injustice may result.
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