Standing Committee B
Tuesday 27 November 2001
[Mr. John McWilliam in the Chair]
Order made: reconsideration of benefit
Question proposed [this day], That the clause stand part of the Bill.
Question again proposed.
Mr. David Wilshire (Spelthorne): When you listen to or watch a soap opera, one of the things that you need is a résumé of episodes that you have missed.
The Chairman: Order. As one who does not watch soap operas, I need no such thing.
Mr. Wilshire: I realise that difficulty, Mr. McWilliam, but if we had a different Chairman, I could have reminded him of what I said before I was politely interrupted. However, I will spare you that. I was worried that if a genuine mistake were found by the director or the prosecution services, it would be possible for them to ask for the amount to be reduced rather than increased. That relates to subsection (1). No doubt the Minister will respond in due course.
Subsection (4)(c) states that property that is gained before the review should be taken into account. If the hon. Member for Glasgow, Pollok (Mr. Davidson) was here, we might be in danger of agreeing about the need to tighten up. What is the situation regarding property that is criminally obtained—if that it the correct phrase; I am sure that the Minister knows what I mean—subsequent to the first order if further criminal gain has resulted in new property? I understand that subsection (4) means that that could not be taken into account, but I wonder why. If one wishes to confiscate property that is the proceeds of crime—and I understand that the Minister is interested in general property that is acquired illegally rather than specific property from the crime—why is any property that was criminally obtained subsequent to the first order excluded? There may be the possibility to tighten that up.
Subsection (7)(b) states that the court ``may vary'' what was previously decided. It will be helpful if the Minister confirms that that means that the court could reduce that amount, although the prosecution is required to present only arguments that would increase it. That is the point that I made before lunch. Notwithstanding the constraint on the prosecution, subsection (7) suggests that the court could listen to arguments and decide that the amount should not be increased and that a mistake was made in the first place, so the amount should be reduced. I assume that that is the meaning of ``may vary''.
Subsection (8)(b) refers to the date of the original order. If I read it correctly, as a non-lawyer, I understand that a court may intervene to make a new order or vary the order. Instead of the original dates for appeal periods and cut-off dates, which we discussed on earlier clauses, a new order would restart such time limits. I raise that to make it clear in my mind that if a new order is made, the period of appeal starts again, rather than an appeal being ruled out of time because it was not made within the period of the original order. It would be useful to clear that up.
The Chairman: Order. It would also be helpful if hon. Gentlemen were to ask permission to remove their jackets. If they were to do so, I would gladly grant it, but I have not yet heard anyone seek such permission.
Mr. Wilshire: It is not often that I apologise on behalf of hon. Members on both sides of the Committee. I foolishly assumed—it shows that I am a non-lawyer—that your generous ruling allowing us to remove our jackets during the previous sitting applied to this sitting, Mr. McWilliam.
The Chairman: Unfortunately, the rule is that it must be done sitting by sitting. The other daft thing about the rule is that it does not apply to hon. Ladies.
Mr. Wilshire: I shall not go into what might or should apply to hon. Ladies. I shall merely say that if you describe it as a daft rule, Mr. McWilliam, I shall describe it as daft that I forgot to ask your permission. I hope that you will accept my apology and retrospectively grant me permission to leave my jacket where it is. I am sure that other jacketless Members would wish to say the same thing.
Where was I?
The Minister of State, Scotland Office (Mr. George Foulkes): Going round in circles.
Mr. Wilshire: No, I was not going round in circles, I was moving on to subsection (9). It would be potentially dangerous to repeat what I said several times before lunch, but I want to draw the Minister's attention to the fact that we are watering down the powers to raise money and to confiscate by saying, once again, that notwithstanding what the court feels that it should impose, if the convicted person cannot afford it, it will be a lesser amount. I have said several times that that is not a sensible way to proceed. It seems to me that if a court feels that the amount of money that should be taken from somebody is X, then it should be X irrespective. If the person cannot afford it, that is tough luck. The hon. Member for Glasgow, Pollok has arrived just as I am saying something that will be music to his ears.
The Chairman: Order. Unfortunately, it has been music to his ears on rather too many occasions. The rule is that tedious repetition is not allowed. The repetition may be becoming tedious, and the hon. Gentleman has just received a yellow card.
Mr. Wilshire: Yes, I wondered whether it was tedious, repetitious or both. I was about to move on anyway, so I shall not chance my arm on that. One of the benefits of having more than one Chairman is that the rule is not so rigidly applied. Nevertheless, I was going to leave the matter even before you asked me to do so, Mr. McWilliam.
I want to refer to subsection (11), which I find curious. I am surprised that it has not cropped up in debate before. It states:
``In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.''
I suspect that we all know what that means. However, it seems to me that it leaves the interpretation wide open to abuse. I assume that it means that the court may take account of inflation. Despite what the Chancellor has been saying downstairs, it is highly unlikely that the value of money will increase rather than decrease, irrespective of which party is in power. The provision seems to say that the court may take account of inflation between the time when the first order is made and the time when the second is made.
Mr. Mark Field (Cities of London and Westminster): I wonder whether my hon. Friend has given any thought to the idea that subsection (11) might also take account of changes in the exchange rate, given that a significant amount of money may have been sequestrated, having come from abroad, or may be overseas currency that has been subject to a confiscation order under clause 6.
Mr. Wilshire: In so far as it is possible to go down that route before you try to stop me, Mr. McWilliam, my hon. Friend is right. I had considered that that was one of the issues. However, it seems to me that a reference to a change in the value of money should, in legal terms, be much more specific than that general statement allows. If the Minister confirms my supposition—that it means that if inflation has taken its toll, one must compare the real value of the original order with the current value of the subsequent one—the Bill should say so.
On the basis that politicians of all political persuasions are adept at using the statistics that suit their purpose best, simply referring to inflation will not necessarily ensure that one arrives at a factual figure for the absolute percentage increase that one should apply. If my supposition is correct, the Bill could usefully include an explanation of how the change in the value of money should be calculated. Should it be with reference to the retail prices index or other statistics, given that there are statistics, damned statistics and lies and we do not want a court to go down that avenue? My hon. Friend the Member for Cities of London and Westminster (Mr. Field) said that not only are we talking about the value of money—I assume that the Bill refers to the changes in the value of sterling—but it is appropriate for someone of my political persuasion—
The Chairman: Order. I have given the hon. Gentleman some leeway, but if he starts arguing the pound against the euro, what happens if it changes and whether or not it should change, he will be out of order.
Mr. Wilshire: You are very perceptive, Mr. McWilliam. I was about to ask what would be the exchange rate to the euro in the event of it coming into force. However, given that you have ruled that I must not say that, I would not dream of so doing. Nevertheless, irrespective of whether it is appropriate to debate the euro, there is a genuine point to be made in that when a Bill asserts what account should be taken of the differences in value, irrespective of party political banter, it should contain a legal definition of what is meant and how it is to be calculated.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I thought that the hon. Gentleman would never stop. His first point was whether there should not be a requirement on the prosecutor to discover—if that were the case—that there may have been an overcalculation of the benefit and make that known to the court so that the amount could be reduced.
We must remember that the benefit resulted originally from a statement by the prosecutor or the director and the opportunity was given to the defendant to rebut the statement to show that the items involved were not the proceeds of crime. I cannot envisage circumstances in which the prosecutor will discover under the clause that there has been an overcalculation of the benefit. Therefore, the hon. Gentleman's argument is not necessary.
The defendant is given the opportunity to seek a postponement if he is unable to show the origins of the properties. Under usual circumstances, that postponement can extend for up to two years and, in exceptional circumstances, it can go beyond that. However, we should not be writing into the Bill a requirement that the defendant can return at any time after six years, having managed to make a case that the items that were thought to be the proceeds of crime at the time were not. The process would be wide open to abuse. We should stick with the Bill and the ability of the defendant to seek postponement so that he can prove the origins of the property.
The hon. Gentleman referred to further criminal activities that were not connected with the original conviction that took place after the original hearing, and asked why the benefits or proceeds of those activities could not be confiscated, too. The Bill relates to criminal confiscation of the proceeds of the crime for which the person was convicted. If further crime were committed after the original conviction, it is a matter for that conviction to take into account the criminal gains that were made. It is not for the prosecutor to return to a previous conviction and attempt to rope in the gains made by subsequent crime.
The hon. Gentleman asked whether the reference in subsection (7)(b) to the court's ability to vary the order allows the court to reduce the order. It does not. At the time of the original decision there is an opportunity to prove the benefit of the criminal activity and the available amount. The purpose of the clause is not to allow the court to vary the order downwards, but to allow the prosecutor to return and show the benefits that were originally assessed to be inadequate.