Standing Committee B
Tuesday 27 November 2001
[Mr. Bill O'Brien in the Chair]
No order made: reconsideration of case
Mrs. Annette L. Brooke (Mid-Dorset and North Poole): I beg to move amendment No. 63, in page 11, line 17, after first `the', insert `investigating agencies or'.
The Chairman: With this it will be convenient to take the following amendments: No. 64, in clause 21, page 12, line 37, leave out from `Director' to `when' and insert
`or investigating agencies have evidence which was not available to them'.
No. 65, in clause 21, page 13, line 4, after first `the', insert `investigating agencies or'.
No. 106, in clause 90, page 54, line 22, at end insert—
`(2A) An investigating agency is any public authority within the meaning of section 6 of the Human Rights Act 1998 (c. 42) which conducts a criminal investigation within the meaning of subsection (2).'.
Mrs. Brooke: I have just stepped in to move the amendment on behalf of my hon. Friend the Member for Lewes (Norman Baker). We consider that it would strengthen the clause and make the final outcome clear. I should be grateful if the Minister would consider it seriously.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): Amendment No. 63 would prevent clause 20 from being used when the investigating agencies, as defined under amendment No. 106, had evidence relevant to the confiscation proceedings that was not made available to the prosecutor at the original proceedings. Amendments Nos. 64 and 65 would do precisely the same in respect of clause 21, except that that clause covers evidence that was not available to the director as well as evidence that was not available to the prosecutor. Amendment No. 106 would define what constitutes an investigating agency.
Under the existing law, the criterion for the operation of such powers is whether there was evidence that was not available to prosecutor at the time of the original proceedings. It does not matter whether the investigating agency concerned had withheld evidence from the prosecutor at the time for whatever reason.
I cannot think of any reason why an investigating agency should deliberately wish to withhold evidence from the prosecutor or the director in order to prevent a confiscation order from being made. By its nature, an investigating agency will want to ensure not only that the defendant is convicted of his crimes but that all his assets acquired from crime are taken away from him at the same time.
On rare occasions, there may be cases when, through incompetence, evidence may not have been brought to the prosecutor's attention, but that is a different matter. It is not possible to legislate for incompetence. In any event, there must still be a strong case for arguing that a convicted person should not benefit from his crimes simply because the investigating authority was inefficient or incompetent.
Mrs. Brooke: I said initially that the amendment would strengthen the Bill. The Minister's words have confirmed that. It would not undermine the Bill. I am a little perplexed that he will not consider inserting the extra words.
Mr. Ainsworth: The amendments would mean that where evidence has been withheld for whatever reason, the course cannot be followed. In circumstances in which evidence has been deliberately withheld—although I cannot envisage what those circumstances might be—it would also prevent compensation from being pursued where for reasons of oversight, inefficiency, or incompetence, evidence had not been disclosed to the prosecutor.
The hon. Lady may say that the amendments would effectively strengthen the clause, but that is a case that she will have to make. The consequence would be that, in such circumstances, confiscation would not be possible, and that is the reason for rejecting the amendments.
Under clauses 20 and 21, the court is not under any obligation to make a confiscation order, even if the prosecutor or the director produces evidence that should have been heard the first time round. Opposition Members have spoken on previous occasions about giving the court the discretion to exercise its judgment. This is precisely the sort of case when the court would want to consider whether it was fair to make an order. The amendments would deprive the court of the opportunity to do that, and for those reasons, I ask the Committee to reject them.
Mrs. Brooke: Although I see the matter in slightly different terms from the Minister, I bow to his reassurances and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 84, in page 11, line 28, leave out subsection (3)(a).
The Chairman: With this it will be convenient to take the following amendments: No. 85, in page 11, line 29, leave out `which constitutes offences.'.
No. 89, in clause 21, page 13, line 23, leave out subsection (7)(a).
No. 90, in clause 21, page 13, line 24, leave out `which constitutes offences'.
No. 92, in clause 22, page 14, line 30, leave out `which constitutes offences'.
Mr. Grieve: These are probing amendments, designed to elucidate what is intended in subsection (3). The clause concerns the reconsideration of a case in which no order has been made. This situation occurs when the director or prosecutor applies to the Crown court to reconsider the evidence and after considering that evidence believes that it is appropriate to proceed. Subsection (2) states:
``If this section applies the court must proceed under section 6''
and in those circumstances, subsections (3) to (8) apply.
In almost any circumstance, the defendant will have already been sentenced, whereas ordinarily a procedure for confiscation will take place prior to sentence.
Subsection (3)(a) states:
``section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned''.
This is another clause that it is not always easy to get my brain around. In the general probing amendment, I have suggested first that we might leave out the whole of subsection (3)(a). Suppose we did that. What would happen? The alternative approach, as in amendment No. 85, is to leave out the words ``which constitutes offences''. Perhaps I can dwell on that in a little more detail.
Subsection (3)(a) says that criminal conduct includes
``conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned''.
I cannot think of any criminal conduct that falls within the ambit of the Bill that does not constitute an offence, so why is the subsection included?
I appreciate that we are talking about the TIC provision—offences taken into consideration at the time of sentencing. Why is it necessary to spell that out in subsection (3)(a)? I would expect the court to have simply taken offences into account when it originally passed sentence. I do not think that there is any reason why clause 6 must have the effect that it has under subsection (3)(a). I am sure that the Minister will try to enlighten us.
This is a probing amendment. I appreciate that there may be a good reason for the inclusion of subsection (3)(a), but I was puzzled by the fact that it suggests the possibility of criminal conduct that does not constitute an offence. I also appreciate that the wording may be intended to describe an offence that has not been taken into consideration. I should be grateful if the Minister would clarify that point.
Amendments Nos. 85, 89, 90 and 92 are much of a muchness and relate to the same issue as it arises in subsequent clauses. Without more ado, I ask the Minister to clarify why the subsection has been included.
Mr. Bob Ainsworth: The hon. Gentleman tabled the amendments in order to explore the effect of clauses 20(3)(a) and 21(7)(a). The clauses make it clear that when a court has taken offences into consideration for sentencing, and is considering a defendant's benefit from criminal conduct at a revaluation hearing, it must add the benefit from the conduct constituting those offences to the overall benefit from any criminal conduct. Amendments Nos. 84 and 89 would remove that provision, and that would prevent the court from including offences taken into consideration in its calculation of the defendant's benefit at a revaluation hearing.
Amendments Nos. 85, 90 and 92 are different. They would delete words that explain that the court must consider the defendant's benefit from ``particular criminal conduct''. However, the court takes offences into consideration. The words are a drafting device to unite the two concepts.
The amendment would allow ``criminal conduct'' to include conduct that the court had taken into consideration when sentencing. However, the court takes not conduct but offences into consideration. The practice of confiscating the benefit of offences taken into consideration is of long standing, and we do not wish to remove it from the Bill.
The revaluation clauses ensure that, when reasonably practicable, the same procedure applies on revaluation as at the confiscation hearing that takes place immediately after conviction. The court has the power to confiscate the benefit of conduct that constitutes an offence taken into consideration if it is going through the confiscation procedures for conviction.
Mr. Grieve: The Minister has satisfied me about amendment No. 85; indeed, as I read subsection (3)(a) to him, I began to satisfy myself. I therefore have no difficulty on that score.
I return to the generality and the need for the clause. If I understand clause 6 correctly, the court may consider benefits that may have accrued from offences taken into consideration under that clause. The Minister nods. I am therefore puzzled about why it was felt necessary to restate that in clause 20 if clause 6 is supposed to apply. I would simply have said ``section 6 has effect''. I am puzzled about why it was felt necessary to restate the ability of the court to take TICs into consideration when coming to a subsequent reappraisal on the application of the director or prosecutor in the six-year period.