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Lords amendment: No. 4.
Mr. Bob Ainsworth: I beg to move, That this House disagrees with the Lords in the said amendment.
Mr. Deputy Speaker: With this we may take Lords amendments Nos. 43 and 73 and the Government motions to disagree thereto.
Mr. Ainsworth: We now come to the first serious test of whether the Conservatives are trying to do serious damage to the Bill, or whether they intend to support the measures needed to combat crime and remove its profits. I look forward to that.
This group of amendments returns us to a theme that will by now be familiar to the House—the question of mandatory versus discretionary confiscation procedures. It has been discussed at length in Committee in both Houses and on Report in another place; I refer the House to the Hansard reports for 4 December 2001, and 22 April and 25 June 2002.
It is not clear to us what the exact effect of this group of Opposition amendments would be—[Interruption.] The amendments would do serious damage, as I shall explain, and would reverse the direction in which policy in this area has been travelling for a long time, including under the guidance of Conservative Governments.
There are two schools of thought about what is being proposed. The first is that the amendments would give the courts the discretion not to mount a confiscation hearing at all. The second is that the amendments would require the court to confiscate the benefit from the defendant's particular criminal conduct, at the request of the director or the prosecutor, but would empower it not to confiscate the benefit of the defendant's general criminal conduct.
Either way, we are wholly opposed to these amendments. Replacing a mandatory procedure with a discretionary procedure would drive a coach and horses
through the basic policy in the Bill. The amendments would reverse a gradual historical development in the direction of an increasingly mandatory regime, not a less mandatory one.Confiscation in England and Wales has always had a strong mandatory element. Under the Drug Trafficking Offences Act 1986 the court was required to make a confiscation order in every case. The assumptions procedure under the Act was discretionary, but was replaced with a mandatory assumptions procedure by the Criminal Justice Act 1993.
The non-drug confiscation legislation was originally discretionary—
Mr. Douglas Hogg (Sleaford and North Hykeham) rose—
Mr. Ainsworth: I shall give way to the right hon. and learned Gentleman in a moment.
That was changed, and the procedure was made mandatory by the Proceeds of Crime Act 1995.
To emphasise the direction in which policy has been travelling, and before I give way to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), I shall read what Lord Hurd, as he now is, said during the passage of the 1986 Act:
- "the Crown court will in future be required to determine, in the case of every person convicted of a drug trafficking offence, whether he has benefited from drug trafficking and, if he has, to impose a confiscation order to deprive him of the entire proceeds of that trafficking . . . Therefore, we propose in clause 2 that courts should be able to assume that the whole of an offender's property, together with any assets which have passed through his hands in the previous five years, represent the proceeds of trafficking, except in so far as he shows otherwise."—[Official Report, 21 January 1986; Vol. 90, c. 243.]
4 pm
Mr. Hogg: Will the Under-Secretary give way?
Mr. Ainsworth: I shall give way to the right hon. and learned Gentleman in a moment, as I said I would.
Some six years later, in making amendments, the Minister said:
- "During the six years in which the legislation has been in force, the courts have declined to apply the assumptions in a number of major cases, thereby placing the prosecution in the impossible position of being expected to prove matters in relation to the offender's property which are solely within his knowledge."—[Official Report, Standing Committee B, 8 June 1993; c. 76-77.]
Mr. Ainsworth: The right hon. and learned Gentleman is very impatient.
Those comments show clearly that the Conservative party recognised the need for a move towards a mandatory scheme. There is no evidence since that time of a huge abuse of power or of miscarriages of justice—quite the reverse. All the evidence shows that, despite such efforts, confiscation has been used a lot less than it ought to be. Given the problems that we face, there is therefore no
reason for us to start heading in the opposite direction by softening the regime rather than toughening it up, which, in effect, is what the amendment proposes.
Mr. Hogg: The Under-Secretary criticises the Opposition for championing a discretionary power. Would he be good enough to look at clause 6(3)(b)? On doing so, he will discover that his own Bill gives the court discretionary power. If the prosecutor or the director does not make an application to the court, it will be for the court to decide. That is a discretionary power.
Mr. Ainsworth: Exactly. We believe that the Bill as it stands contains sufficient safeguards to allow for the avoidance of injustices. Yes, it is for the prosecutor to decide whether it is appropriate to make an application, and if he thinks it inappropriate, he should not do so. Yes, in terms of the risk of a serious injustice, the court can effectively prevent an action from taking place. However, the existing mandatory system should continue, and should be toughened rather than loosened. We do not need to retreat from the direction in which we are travelling, given the continued existence of a very real problem.
Perhaps Opposition Members think that the impact of such legislation has been profound up to now, or perhaps they can give instances of its being so draconian that it has led to injustices. However, I have seen no such evidence, and nor has such evidence been presented to the House during the Bill's passage.
In effect, mandatory assumptions have been tested in court, so even if concerns exist about the Human Rights Act 1998 or the European convention on human rights, there is no particular reason why we should retreat from our current direction. In considering the mandatory application of assumptions in drug trafficking cases such as the Phillips v. United Kingdom case, which was decided on 5 July 2001, the Strasbourg court found that such applications are consistent with the convention. So I am not persuaded that there is a problem, or that the amendments would improve the Bill's effectiveness.
Without the amendments, the Bill gives a clear definition of a criminal lifestyle. When criminals commit offences, they will know exactly what they are exposing themselves to in confiscation terms. The amendments would remove certainty, turn confiscation hearings into a lottery, and reverse the trend towards a mandatory regime that has continued for some time under both Labour and Conservative Governments. I do not believe that there is any justification for the amendments; indeed, they would do considerable damage to the Bill. I therefore ask the House to oppose them.
Mr. Grieve: I am grateful to the Under-Secretary for his kind remarks. He pointed out that we sought to improve the Bill in Committee and on Report, and I note with great pleasure that many of the tabled Lords amendments have in fact arisen from discussions in Committee that involved all parties, and which the Government undertook to look into further. I am pleased to have this opportunity to express my gratitude to the Under-Secretary for taking those discussions on board.
However, on this matter I fear that there may be a continuing difference between us. In saying that, I should make clear my support for the Bill's confiscation provisions. Given that the Under-Secretary raised the
issue earlier, I should also point out that, as an Opposition, it is our job to scrutinise legislation. That process, which we hope will lead to the best possible legislation, comes to a conclusion when Royal Assent is given. We do not have to suspend our judgment or our debate and get into a happy-clappy, mutually self-congratulatory moment before that happens. I shall welcome the Bill when it receives Royal Assent, but until then I shall continue a dialogue with the Under-Secretary and other Government members on how to ensure that it is in the best possible condition.We have indeed already discussed the question of whether there should be a discretionary or a mandatory component in initiating the confiscation procedure. As the Under-Secretary will remember, one intriguing point about the Bill was that, when it was first considered in Committee, it contained a discretionary regime for Scotland, but not for England and Wales. Apparently, that was due to an historical fact—but not one, I am bound to say, that appeared ever to have interfered whatsoever with the operation of previous Scottish legislation.
The Under-Secretary has gone on at some length this afternoon about the previous regime under previous legislation. I accept that, but the point is that that legislation was in no way as wide ranging and draconian in its powers and consequences as this Bill.
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