Proceeds of Crime Bill

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Mr. Wilshire: I am grateful to the Minister for having made that clear. There is an argument of principle about whether the court should be able to vary the order downwards. However, if as the Minister says, the Government intend that that should not be possible, would it not be better if the wording of the clause referred to the ability to ``increase'' or ``vary upwards''? That would avoid doubt by putting into words what the Minister has just said. As the Bill stands, however, ``vary'' could be taken to mean upwards or downwards.

Mr. Ainsworth: The subsection relates to circumstances in which

    ``the defendant's benefit exceeds the amount found as his benefit for the purposes of the confiscation order''.

Paragraph (b) states that

    ``if it exceeds the amount required to be paid under the confiscation order''

the court

    ``may vary the order by substituting for the amount required to be paid such amount as it believes is just.''

Therefore, if the amount is increased but the court believes that to take the entire increase into account would be unjust, it may choose not to take into account the entire increase. The Bill does not allow the court to conclude that the benefits were lower than those in the original confiscation order, and nor should it.

As I said, at the time of the original confiscation, the defendant can put his case and show that his property was not the proceeds of crime. He has the opportunity to request a postponement in order to do that, of up to two years in normal circumstances and, in exceptional circumstances, beyond two years. That should provide him with the opportunity to prove his case. I do not understand why we should include yet another provision for that.

In discussing subsection (9), the hon. Gentleman suggests that we are being too soft and allowing people unnecessarily to keep the proceeds of crime. The provisions in subsection (9), like those in earlier clauses, are included in order to avoid double counting. The court goes through a process when it originally confiscates the proceeds of crime. It discounts other orders that may have been made subsequently. It may have imposed a fine after the confiscation order was made. It would be wrong if, in revisiting the benefits of the proceeds of crime, the court did not take into account any other orders that the defendant had been required to meet, and the fine imposed on him. We would effectively be confiscating the proceeds of crime twice, through either other orders or the fine imposed at the original confiscation hearing.

Mr. Nick Hawkins (Surrey Heath): I am sorry to break the Minister's flow on that point, and I do not want to be difficult by referring back to his previous response to my hon. Friend the Member for Spelthorne (Mr. Wilshire). However, since he discussed subsection 7(b), I have been examining it carefully, and I believe that he is mistaken. Nothing in the words ``may vary the order'' and put in such amount

    ``as it believes is just''

constrains the direction of the variation. I hope that the Minister and his officials will look again at subsection (7)(b), because the words at the beginning of paragraph (b) do not have the effect that the Minister says they do. The court is given the power to ``vary the order'' by

    ``such amount as it believes is just''.

The court is not constrained to use its discretion to vary the order in only one direction.

Mr. Ainsworth: We must read all of subsection (7), and not just paragraph (b). It states:

    ``If the amount found under the new calculation of the defendant's benefit exceeds the amount found as his benefit for the purposes of the confiscation order the court—

    (a) must make a new calculation . . . and

    (b) if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.''

The subsection applies in instances in which the recalculation increases the amount of benefit from the original confiscation, and it allows the court to decide that, if circumstances arise, it might not be just to increase the confiscation order to take in the whole of that increase. I do not believe that the subsection allows the court to decrease the amount from that prescribed in the original confiscation order.

Mr. Hawkins: The Minister is right to say that we must consider the whole of subsection (7), which prescribes the only circumstances in which the court may vary the amount found as benefit. If the court is given the power to vary the order, and to decide that the amount to be paid is just, its final decision is not constrained, whatever circumstances led it to make the calculation. That is my point.

Mr. Ainsworth: The power given to the court begins only when the defendant's benefit exceeds the amount that must be paid. In any case, the clause is not intended to allow reconsideration of whether the amount should be decreased.

The hon. Members for Orkney and Shetland (Mr. Carmichael) and for Beaconsfield (Mr. Grieve) have shown their combined expertise at redrafting on their feet. I do not know why we bother to employ parliamentary counsel when Opposition Members are so talented. I do not believe that the clause allows courts to reconsider whether the amount should be decreased.

Mr. Grieve: Despite the combined capacities of the hon. Member for Orkney and Shetland and myself, we do not pick up on every point. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) made a good point. It is clearly implicit in subsection (7) that an upward variation is intended, but there is a provision that the variation need not extend to the new amount: it could be somewhere in between, if that is considered just. He is right to say that, on the face of it, subsection (7) could be read as stating that if the amount under the new calculation exceeds the amount found as the defendant's benefit, the court has the unfettered power to vary the amount and move it up or down. That was a good point that the Minister might bear in mind, because no one in the Committee expects the amount to be adjusted downwards.

Mr. Ainsworth: It is good to hear that no Committee member would expect that result. I wonder whether the hon. Gentleman has the agreement of all Opposition Members on that, including the hon. Member for Cities of London and Westminster, who has come up with some interesting views in Committee.

I am more than happy to look over the clause with my officials to check that it says what I believe it to say, and that a downward variation cannot arise.

Mr. Hawkins: That is helpful, but the Minister should understand that my hon. Friend the Member for Beaconsfield and I are only trying to clarify the subsection. My hon. Friend the Member for Spelthorne made a good point. We want the clause to do precisely what the Minister wants it to do. We are not trying to weaken subsection (7)—we want to make sure that it operates correctly—but we genuinely believe that it contains a trigger and a power. The trigger makes the way in which it should operate implicit, but not explicit. The power is clearly unfettered—it is in the words.

Mr. Ainsworth: On this occasion, I absolutely and unequivocally accept the hon. Gentleman's reassurance that he has no intention of changing, softening or weakening the Bill. He is merely trying to ensure that it works as intended.

Mr. Ian Davidson (Glasgow, Pollok): I see a flying pig.

Mr. Ainsworth: I am not sure whether that was dissent from the Back Benches. [Interruption.]

The Chairman: Order. There is a lot of conversation going on, but we are trying to listen to the Minister. Hon. Members who wish to have private conversations may do so outside the Room.

Mr. Ainsworth: Thank you, Mr. McWilliam, for your protection from my hon. Friend the Member for Glasgow, Pollok. It is much appreciated.

Subsection (11) states:

    ``In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.''

After requiring the court to take into account the original proceeds of crime and any interest and benefit that may have accrued from investment, it would be strange and very unfair to not encourage it to take account of changes in the value of money. There are two sides of the coin when updating the decision with regard to benefits that the defendant may have accrued through the investment of his proceeds and the downside of time having elapsed.

Mr. Wilshire: I can well understand why, having bowled the Minister some tricky and technical questions, the way in which I posed the last one may have slipped his mind. I do not disagree with him. I accept that there should be adjustment. However, the simple reference to a change is inadequate. The way in which it is taken into account and method used to calculate inflation should be in the Bill. I did not disagree with the principle, but said that the Bill was insufficiently clear to achieve the Minister's intention.

Mr. Ainsworth: It might be difficult to spell out in the Bill exactly what the court must do to calculate the revaluation. I will consider what the hon. Gentleman said, but it would be difficult to lay down a set of proceedings that the court must follow when calculating movements in the value of money. The court must try to be just when updating the decision, and subsection (11) provides for that. I will consider whether there is a way of spelling out the calculation that would not lead to injustices that no hon. Member wants.

Mr. Field: Does the Minister not agree that we have already examined investments, which would clearly be caught? Likewise, the Bill contains a provision on interest. What does the Minister envisage would be caught by subsection (11)? No doubt, when examining investment, there would be a freeze on various guilty defendants' accounts on which a confiscation order was made. I appreciate the time that would be taken between the freezing of an account and a final judgment and reconsideration of benefit. We may say that interest has accrued over a matter of months or years on a defined account, and there may have been a range of investments that, dare I say—

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