Proceeds of Crime Bill

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Mr. Wilshire: The clause deals with reconsideration of any benefits from crimes. I will not repeat our anxieties about how benefits are considered under the earlier parts of the Bill, although the same worries apply to clause 21. However, I hope the Minister will be persuaded that the clause should stay in the Bill, because it is another way of addressing benefits.

I should like clarification of several matters in clause 21. My understanding of subsection (4)(a) is that if new evidence is available, it can be brought forward. What I find surprising, as a layman, is that the clause does not say ``new evidence'', but refers to

    ``evidence which was not available to the prosecutor''.

Thus, it is possible that the director may have had evidence that he failed to bring to the attention of the prosecutor, and that raises the question of why the director would withhold information. That could be accidental or deliberate, or it could be for all sorts of reasons. However, that is not the cause of my concern. In clause 20, this clause and the next two clauses, the general thrust of the justification for reopening something that has been closed must be new evidence, if double jeopardy—which we debated before you assumed the Chair, Mr. McWilliam—is not to arise.

I can go along with the argument that says, ``We dealt with it like that, but we have now discovered something different. We must therefore revisit it.'' However, I am worried that subsection (4)(a) does not appear to say that. It seems simply to say that if the prosecutor is given new information, the matter can be reopened. I want the Government to consider making it clear that the matter can be reopened when there is new evidence that was not available originally to the prosecutor, rather than when the information was known but he was not told about it.

Subsection (4)(c) refers to

    ``general or particular criminal conduct''.

The moment that we talk about general conduct, we start to talk about criminal lifestyles and Christmas coming. Perhaps, afterwards, we will no longer have such debates. Would the new evidence involved be about particular criminal conduct—the original charges that led to the conviction—or could it be about any sort of conduct, whether criminal or related to a criminal lifestyle? If somebody did a trawl and found out something by way of interesting gossip, might that be used rather than particular evidence about a particular crime? I would welcome clarification in that regard.

If I heard the Minister correctly during a previous debate, he said that it was not possible to revisit assumptions. However, under subsection (9), four assumptions can be ignored. As a layman, I am confused about that, because I think that I heard the Minister say that assumptions could not be revisited, yet part of this clause says, ``You will revisit assumptions, and so much so that you will ignore them.'' I am sure that there is an explanation for my confusion, but I would be grateful if the Minister would give it to me.

Subsection (10) seems to say—this may be the layman in me rather than the lawyer—that when the benefits of crime are reconsidered and a new calculation is made, that new calculation cannot arrive at a figure that exceeds the figure calculated under clause 8. If clause 21 says that the matter can be reconsidered, but the figure cannot be greater than the previous figure, all that we are doing is introducing a mechanism for reducing the amount. I should have imagined that the underlying thinking of those who drafted the Bill was that reconsideration was needed in order to increase the figure if new information came to light. Does subsection (10) rule out an increase in the figure, which would mean that it can only be lower, thereby introducing a mechanism for letting the individual concerned pay less? I am sure that hon. Members on both sides would not be comfortable with that.

My final concern is about subsection (11). Again, it would be possible to have the entire debate about clause 20 all over again, and I shall try not to. The subsection seeks to water down the amount that will be paid under an order because of other orders, fines and so on. I suspect that the hon. Member for Glasgow, Pollok and I agree that we should not water it down. The only conclusion that I can draw is that either the hon. Gentleman or I should be nervous that we agree.

Mr. Bob Ainsworth: On the point raised by the hon. Member for Surrey Heath (Mr. Hawkins), I will do as he asks and go away to examine the interaction with, and impact on, the Rehabilitation of Offenders Act 1974.

Stephen Hesford (Wirral, West): Will my hon. Friend consider the earlier point about convictions that are missed? Should that apply more to clause 20 rather than clause 21 since one considers only the benefit? That would put the matter one stage backwards.

Mr. Ainsworth: I am not sure that I understand what my hon. Friend said.

Mr. Grieve: I understood the hon. Member for Wirral, West (Stephen Hesford). Indeed, his point crossed my mind during discussions. If we are to insert a provision that allows for reconsideration when a court had not received a full record of a person's previous convictions, which might bring him into the category of criminal lifestyle, that might be better done in clause 20 than clause 21. The hon. Gentleman has a point, although it arose to me when I considered clause 21.

Mr. Ainsworth: Obviously, if we concluded that there were grounds for including a provision to reopen the triggering of assumptions based on convictions that were not known at the time, we would have to consider where in the Bill it would be appropriate to place that. However, we must decide whether the provision is necessary before we consider how to deal with it. I take the point made by my hon. Friend the Member for Wirral, West on board.

My hon. Friend the Member for Glasgow, Pollok asked for reassurance that subsequently discovered proceeds of crime that could be revisited under these clauses within five years could also be considered for civil recovery after seven years. The answer is yes, although different criteria procedures must be followed. After rehabilitating myself in my hon. Friend's eyes, I must tell him that that would not be possible after 13 years, because there is a 12-year limitation in part 5 of the Bill. I do not want him to think that I have satisfied him entirely.

The hon. Member for Spelthorne asked about justification for reconsiderations. The prosecutor would have to convince the court that reconsideration was justified. The manner in which that was done would reopen procedures in clause 6. The prosecutor would try to convince the court to reconsider the benefit of the defendant's general conduct because there were grounds to trigger the assumptions procedure in clause 6. All that we are doing is applying the procedure in clause 6 to reconsideration. The same procedures will apply and the court must be convinced of the justification for reopening matters.

The hon. Gentleman asked about clause 8 and whether we are simply re-opening matters to reduce benefit. Of course, we are not. We are applying clause 8 to the new procedures to ensure that the revalued benefit, which may be much higher than that originally discovered at the time of conviction, does not go beyond the available amount, as it would not have been allowed to do on the first consideration. The reference to clause 8 will make it certain that the available amount is the ceiling that can be confiscated, not an amount that is well above the assets.

I do not know whether I have answered all the points made by the hon. Member for Spelthorne. If I have not, I am sure that he will question me further.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.

Clause 22

No order made: reconsideration of benefit

12.45 pm

Mr. Grieve: I beg to move amendment No. 94, in page 14, line 18, after `were', insert `now'.

The Chairman: With this it will be convenient to take amendment No. 95, in page 14, line 20, after `amount', insert `originally'.

Mr. Grieve: We are about to discuss a minor drafting issue, but one that would improve the clause. Clause 22 explains about the reconsideration of benefit. It states:

    ``This section applies if . . . a court has made a confiscation order''.

Like other sentences in the Bill, when I first read the next sentence I had to pause. It continues:

    ``the prosecutor or the Director believes that if the court were to find the amount of the defendant's benefit in pursuance of this section it would exceed the amount found as his benefit for the purposes of the order.''

On the face of it, that provision has a contradictory feel about it, but that can be readily cured by inserting the word ``now'' between ``to'' and ``find'' and the word ``originally'' between ``amount'' and ``found''. The insertion of the word ``original'' between words ``the'' and ``order'' in line 20 would be an alternative way in which to approach the problem.

Mr. Hawkins: I had not previously spotted the problem, but the position at which my hon. Friend is suggesting to insert the word ``now'' would create a split infinitive. The word ``now'' should be inserted before the word ``to''.

Mr. Grieve: My hon. Friend is right, but inserting the words ``now'' and ``originally'' into the provision would make clear the intention of the clause. I commend the amendment to the Minister and hope that we shall not be told that it would affect the clause, because it would not. Similar amendments could be tabled at other points in the Bill, but the addition of those two words would make it immediately clear what the Bill wants to achieve. Otherwise, we would have to rethink the intention behind the clause. For those reasons, I commend the amendments to the Committee. If the Minister says that he will accept them, but that he would prefer to reword them so that the infinitive is not split, I shall agree immediately.

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