|
Mr. Foulkes: I beg to move amendment No. 163, in page 62, line 20, after 'information', insert
The Chairman: With this it will be convenient to take the following: Government amendments Nos. 164 and 165.
Clause stand part.
Mr. Foulkes: Amendment No. 163 is a paving amendment. Amendment No. 164 is designed to ensure that the court will always have before it an up-to-date statement of the prosecutor's position. It places a requirement on the prosecutor to give the court a further statement of information if the court orders him to do so, and within the period that the court orders. Amendment No. 165 is a purely drafting amendment to delete superfluous subsections (6) to (9) of clause 104, as the provisions are already contained in clause 99(6) to (9).
Mr. Grieve: This is a small point. The Minister will remember that when we were discussing the procedure in respect of England and Wales, the Opposition expressed slight concern about the duties appearing to be to supply information to the court and not necessarily to the defendant and vice versa. We had some disagreement on that. I am not familiar with what one would expect in relation to Scots procedure, which is why I am so cautious, but I would like reassurance that the provision of supplying information to the court also includes supplying information to the other party, and does not need to be spelled out expressly.
Mr. Foulkes: I cannot immediately answer that question, but I shall undertake to do so. I understand that the hon. Gentleman is right. If I am wrong about that, I shall let him know. However, without a brief—
Mr. Wilshire: I am always nervous when Ministers are without briefs. On this occasion, however, the Minister appears to have found a copy.
Mr. Foulkes: I assure the hon. Gentlemen that the prosecutor's statement will always be given to the accused.
Amendment agreed to.
Amendments made: No. 164, in page 62, line 21, at end insert—
'(b) he must give the court a further statement of information if it orders him to do so, and he must give it within the period the court orders'.
No. 165, in page 62, line 22, leave out subsections (6) to (9).—[Mr. Foulkes.]
Clause 104, as amended, ordered to stand part of the Bill.
Clause 105
Accused's response to statement
of information
Mr. Foulkes: I beg to move, amendment No. 166, in page 62, line 37, leave out 'If' and insert 'When'.
The Chairman: With this it will be convenient to take the following: Government amendments Nos. 167 to 169.
Clause stand part.
Government amendment No. 170.
Clause 106 stand part.
Mr. Foulkes: The purpose of amendment No. 166 is to make it absolutely clear that there is an obligation on the prosecutor to give the court a statement of information in every case in which he is seeking a confiscation order within a period specified by the court. Amendment Nos. 167 and 168 are purely drafting amendments.
Amendment No. 169 inserts a cross-reference to clause 102 to ensure that the prosecutor receives notice of the accused's response to the statement of information no later than six months before the end of the postponement period, which is a maximum of two years. That is designed to ensure that the final confiscation hearing can take place before the end of the postponement period. Amendment No. 170 is also a purely drafting amendment and is designed to bring the wording of clause 106(4) in line with that of clause 19(5).
Clause 105 gives the accused the opportunity to contest the prosecutor's allegations in the statement of information that is provided under clause 104. Clause 106 empowers the court, at any stage in the confiscation proceedings, to order the accused to provide information that it needs to enable it to carry out its confiscation functions. The power is important and flexible and may be used by the court, for example, to require the accused to provide further information about a point in the prosecutor's statement. The power reproduced in clause 106 has proved useful in practice.
Mr. Grieve: I ask about the change of the word ''assertion'' to ''allegation''. I am aware of the desire for uniformity and I tread delicately because of my lack of knowledge of Scottish legal words. However, something about the word ''assertion'' strikes me that it has the capacity to be a term of art in law while ''allegation'' does not. Why is the amendment necessary? There is either no reason to use the word ''assertion'', in which case one wonders why it crept into the Scottish part of the Bill, or ''assertion'' is a familiar word in Scottish legal terminology, in which case its substitution for ''allegation'' may have a greater effect than initially thought. I do not know whether the Minister or any other hon. Member can enlighten the Committee, but it seems that the two words have a slightly different meaning. Why does Scots law use the word ''assertion'' rather than ''allegation'', and what will be the consequence of getting rid of the word?
Mr. Foulkes: I understand that the change would not have any legal significance and that the amendment is a drafting amendment to ensure consistent wording with the English part of the Bill.
Amendment agreed to.
Amendments made: No. 167, in page 62, line 40, leave out
'(within the period it orders)'.
No. 168, in page 62, line 43, after paragraph (b), insert
', within the period it orders'.
No. 169, in page 62, line 43, at end insert—
'(1A) Where by virtue of section 102 the court postpones proceedings under section 94, the period ordered by the court under subsection (1) shall be a period ending not less than six months before the end of the permitted period mentioned in section 102.'.—[Mr. Foulkes.]
Clause 105, as amended, ordered to stand part of the Bill.
Clause 106
Provision of information by accused
Amendment made: No. 170, in page 63, line 33, leave out 'assertion' and insert 'allegation'.—[Mr. Foulkes.]
Clause 106, as amended, ordered to stand part of the Bill.
Clause 107
No order made: reconsideration of case
Mr. Bob Ainsworth: I beg to move amendment No. 171, in page 64, line 6, leave out 'date of conviction' and insert 'relevant date'.
The Chairman: With this it will be convenient to take the following: Government amendments Nos. 174 to 178.
Clause stand part.
Government amendments Nos. 180 to 182, 184 and 183.
Clause 108 stand part.
Government amendments Nos. 186 to 189.
Clause 109 stand part.
Government amendments Nos. 191 to 193.
Mr. Ainsworth: All the clauses, taken with the amendments bearing on them, from now to clause 120, take us back to the situation in which there will be no difference in the proposals for Scotland and those in respect of England and Wales. When we reach clause 120—having caught his breath—my hon. Friend the Minister will take over again. We are, in effect, rendering part 3 of the Bill identical to part 2, which is the only reason why the amendments have been entrusted to my care. These are all either drafting amendments or consequential on such changes.
Mr. Carmichael: I should be grateful if the Under-Secretary will expand on amendment No. 175. It bears further explanation than the Government have given us.
Mr. Ainsworth: That will teach me. Amendments Nos. 174, 175 and 176 are consequential on making the change to a mandatory regime in Scotland. On what point does the hon. Gentleman want me to expand?
Mr. Carmichael: The phrase ''proceeding under section 94(6)(b)'' is a nice, clean and easily understandable provision, but to replace it with the words
''arriving at the just amount''
is, dare I say it, apparently giving some discretion. I do not agree that it would achieve the result that the Under-Secretary claims.
Mr. Ainsworth: It is exactly the same as the provision that we discussed under part 2.
Mr. Carmichael: What is the objection to ''proceeding under section 94(6)(b)''? I am merely curious. I am not trying to make difficulties. Honest.
Mr. Hawkins: I have not directed my attention to the amendment, but the hon. Gentleman has made a good point. We have already amended ''may'' to ''must'' under clause 94(6)(b) and that provision would introduce the element of compulsion. As he said, it is a bit odd, having made such an amendment then to remove ''proceeding under section 94(6)(b)'', and replace it with
''arriving at the just amount'',
thus leaving it to the court's discretion to determine what is or what is not just. An element of discretion is being reintroduced that changing ''may'' to ''must'' under clause 94(6)(b) had removed.
Mr. Carmichael: Is there another subsection under which the court can proceed in arriving at the just amount?
Mr. Ainsworth: Let us see if there is not some kind of drafting amendment. The amendments are intended to provide for a mandatory system under part 3 that is similar to that under part 2. I will inform the hon. Gentleman if they fail to do that. I hope that we did not make a drafting error when we made the changes.
Mr. Grieve: I think that, for once, the Minister has not made a drafting error. If a reference to clause 94(6)(b) had been left in, that would have removed any possibility of not making the confiscation order: that paragraph, having been altered so that ''may'' is replaced by ''must'', implies no measure of discretion. He substituted the reference to the just amount to leave in the residuary discretion that is implied by the other subsection—the number of which I have forgotten—that says that the court can, when it has taken all the circumstances of the case into consideration, decide not to take all the money.
11.15 am
Mr. Ainsworth: The hon. Gentleman is probably right, but let us give him the chance to reflect on his wife and his drawing room, while the officials check that that is the case.
Amendment agreed to.
Amendments made: No. 172, in page 64, line 13, leave out 'may' and insert 'must'.
No. 173, in page 64, line 23, leave out 'may' and insert 'must'.
No. 174, in page 64, line 29, at end insert—
No. 175, in page 64, line 30, leave out 'proceeding under section 94(6)(b)' and insert
'arriving at the just amount'.
No. 176, in page 64, line 31, at end insert—
'(aa) the amount found under section 96;'.
No. 177, in page 64, line 35, leave out ', unless the order has' and insert 'and has not'.
No. 178, in page 64, line 41, at end insert—
'(6A) If an order for payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 100(5) and (6) do not apply.'.—[Mr. Ainsworth.]
Clause 107, as amended, ordered to stand part of the Bill.
Clause 108
No order made: reconsideration of benefit
Amendments made: No. 179, in page 65, line 43, leave out 'may' and insert 'must'.
No. 180, in page 66, line 6, at end insert—
No. 181, in page 66, line 7, leave out 'proceeding under section 94(6)(b)' and insert
'arriving at the just amount'.
No. 182, in page 66, line 8, at end insert—
'(aa) the amount found under section 96'.
No. 184, in page 66, line 12, leave out ', unless the order has' and insert 'and has not'.
No. 183, in page 66, line 18, at end insert—
'(9A) If an order for the payment of compensation under section 249 of the Procedure Act has been made against the accused in respect of the offence or offences concerned, section 100(5) and (6) do not apply.'.—[Mr. Ainsworth.]
Clause 108, as amended, ordered to stand part of the Bill.
Clause 109
Order made: reconsideration of benefit
Amendments made: No. 185, in page 66, line 43, leave out 'may' and insert 'must'.
No. 186, in page 67, leave out lines 10 to 12 and insert—
'(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 just.'.
No. 187, in page 67, line 23, leave out ', unless the order has' and insert 'and has not'.
No. 188, in page 67, line 26, at end insert—
'(c) any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.'.
No. 189, in page 67, line 26, at end insert—
'(8A) But in applying subsection (6)(b) the court must not have regard to an order falling within subsection (8)(c) if a court has made a direction under section 100(6).'.—[Mr. Ainsworth.]
Clause 109, as amended, ordered to stand part of the Bill.
Clause 110
Order made: reconsideration of
available amount
| 
