Proceeds of Crime Bill

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Mr. Wilshire: As it is the time for expressing gratitude, may I express gratitude to the Minister for pointing out the questions that I should have asked,

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and then answering them before I got around to asking them?

Amendment agreed to.

Amendments made: No. 658, in page 270, line 16, after '2' insert ', 3'.

No. 659, in page 270, line 16, at end insert—

    'Immigration Act 1971 (c. 77)

    (1) In section 28L of the Immigration Act 1971, in paragraph (c) for the words ''33 of the Criminal Law (Consolidation) Act 1995'' substitute ''397 of the Proceeds of Crime Act 2002''.'—[Mr. Bob Ainsworth.]

Mr. Grieve: I beg to move amendment No. 647, in page 270, leave out lines 17 to 30.

The Chairman: With this it will be convenient to take Government amendment No. 516.

Mr. Grieve: The amendment relates to the provisions in schedule 8 for amending the Rehabilitation of Offenders Act 1974 and the Rehabilitation of Offenders (Northern Ireland) Order 1978. The two are linked to achieve the same thing. Paragraph 5 of schedule 8 says:

    In section 1 of the Rehabilitation of Offenders Act 1974 (rehabilitated persons and spent convictions) after subsection (2A) insert—

    ''(2B) In subsection (2)(a) above the reference to a fine or other sum adjudged to be paid by or imposed on a conviction does not include a reference to an amount payable under a confiscation order made under Part 2 of the Proceeds of Crime Act 2001.''.

That is to be further amended by a Government amendment to relate it to part 3 as well, which is about Scottish confiscation provisions. The same provision applies in Northern Ireland and, as spelled out in the explanatory notes, the purpose of the amendment is that a failure to pay a confiscation order will prevent a person from being rehabilitated under the 1974 Act.

I shall wait with interest to hear the Minister's explanation. It may be that I have not fully thought through the matter and that he will satisfy me that that is the correct approach to adopt, but it raised several important points. For example, it is worth remembering that the confiscation provisions under part 2 are not in themselves about the commission of a criminal offence, although they may be linked to it. It is possible for a person to have his assets confiscated under part 2 and, although he would have to have had previous convictions, they need not necessarily be related to the offence in question. Of course, the standard of proof for those confiscations is the balance of probabilities, and the burden of proof is reversed.

When there has been a failure to pay, there are—unless I have misunderstood the position, in which case the Minister will correct me—penalties under the Bill. Therefore, it is puzzling that the policy decision is to remove from the provisions of the Rehabilitation of Offenders Act 1974 those people under a confiscation order who fail to pay the amount due. Surely, the time for which a person is subject to the provisions of the Rehabilitation of Offenders Act and would have to declare his conviction should follow on from the convictional period of imprisonment that was imposed in lieu of payment. Why is a failure to pay a confiscation order subject, per se, to being entirely removed from the Rehabilitation of Offenders Act?

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That is slightly mysterious, but perhaps the Minister has a cogent and reasonable explanation.

On a matter of principle, I believe that the Rehabilitation of Offenders Act is good legislation. It is a feature of the criminal justice system in this country that, while we may not succeed in reforming the people whom we convict and sometimes sentence to long periods of imprisonment, we certainly succeed in imposing stigmas on them. Those stigmas can subsequently make it very difficult for them to gain employment, even many years after the commission of the original offence and despite the community's belief that they have been rehabilitated. Why, therefore, should those who fail to comply with a confiscation order be exempt from the protection afforded by the Rehabilitation of Offenders Act? That is my understanding of the explanatory notes and the Bill, and I will be grateful if the Minister will explain the position.

Mr. Hawkins: My hon. Friend the Member for Beaconsfield has made some important points, with which I entirely agree. There is a further issue that I want the Minister to think about. The Committee will recall that in earlier sittings we talked about the fact that gangsterism is rife in Northern Ireland. All of us—especially the absent hon. Member for Glasgow, Pollok—have been at pains to point out that the Mr. Bigs are the main target of the Bill. Mr. Bigs are as prevalent in Ulster as they are in Pollok. They are, sadly, the type of people who are involved with terrorist violence, as well as with the gangsterism at which the Bill is aimed.

I want the Minister to think about whether provisions for the rehabilitation of offenders in Northern Ireland should be slightly different from those that affect the mainland. I agree that the Rehabilitation of Offenders Act has worked well on the mainland, but I am not convinced that it always works well in the Province of Ulster. Gangsterism is rife in Ulster, and I am worried about its connections with terrorism. Will the Minister address that point specifically? My hon. Friend the Member for Spelthorne and I have always taken a big interest in issues that relate to Ulster. I hope that we shall receive some reassurance. For the sake of probing, the amendment would delete lines 17 to 30, and that would affect Northern Ireland provisions, too.

6 pm

Mr. Foulkes: On a general note, I wish to say that I agree with the hon. Member for Beaconsfield about his approval of the Rehabilitation of Offenders Act 1974. That was a welcome Act. It was Labour legislation, too. It has been beneficial.

The amendment would enable offenders who fail to pay their confiscation orders to take advantage of that Act, which applies to England and Wales, and Scotland. It would have the same effect in Northern Ireland where the Rehabilitation of Offenders (Northern Ireland) Order 1978 applies. Others came to the same conclusion as I did when listening to the hon. Member for Surrey Heath. Perhaps I do not take as close an interest in the detail of Northern Ireland legislation as he and the hon. Member for Spelthorne

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do, but I cannot see a policy justification for a difference between the jurisdictions on rehabilitation.

Confiscation legislation has always included a provision that prevents offenders who would otherwise be rehabilitated from becoming so if they fail to pay their confiscation orders. Such a policy is not new, but a continuation. The reason for the prohibition is straightforward. The recovery of the proceeds of crime is critical. There is another important point that I should stress. Unlike a confiscation order, the failure to pay a fine does not prevent an offender from being rehabilitated. However, there is a crucial difference between fines and confiscation orders. A confiscation order is based on the amount of property available for confiscation at the time that the order is made, and as such it can always be paid. A fine may, for example, take account of future earnings and different criteria may apply.

Offenders should be encouraged to repay their debt to society—a particularly apposite expression in the context of confiscation—and the provision will do precisely that. The new enforcement provisions are designed to speed up the enforcement. In most cases, we expect a confiscation order to have been met through restraint and receivership. The issue of rehabilitation should not really arise. The amendment would let offenders off the hook: something that I do not believe that Conservative Members would wish.

I ask Opposition Members to support Government amendment No. 516. The Rehabilitation of Offenders Act 1974 applies both to England and Wales and to Scotland. Accordingly, the restriction on rehabilitation should apply to Scottish confiscation orders under part 3 as well as to English confiscation orders under part 2. Similar provisions under the current legislation already apply to Scotland. I politely ask the hon. Member for Beaconsfield to consider withdrawing the amendment.

Mr. Grieve: I am grateful to the Minister for his comments. I thought that he would say that previous legislation had incorporated such a provision. The distinction that I sought and that we discussed at some length under part 2 is that confiscation was linked originally to the money identified as being derived from a particular offence. We are now in a different environment in which, given the balance of probabilities with a reverse burden of proof, we will be confiscating money from individuals who have a criminal lifestyle that is not necessarily linked to the particular offence. Although the proceeding is differentiated from the civil recovery proceedings, it has elements of a civil or administrative law remedy that does not give rise to a criminal conviction. That is what is such an interesting aspect, although I accept that defaulting payment may give rise to a criminal sanction.

That is why I wondered whether this was an opportunity to revisit the issue. However, the Minister made a persuasive point that if the money is identified and available for payment, a refusal to pay seems extraordinary. In reality, that is unlikely to

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occur, because the money would already have been seized. I suspect that the money would be available for the payment to be made.

Mr. Foulkes: Alternatively, the money might be salted away overseas. I am sure that the hon. Gentleman would not want a person who salted a million quid overseas to be rehabilitated.

Mr. Grieve: The Minister makes a good point. For those reasons, I am content that the matter has been aired, and I shall withdraw the amendment. I am happy with the Government amendment, which extends the provisions to Scotland, although I suspect that the Committee expected that the provisions would be present in the first place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 516, in page 270, line 23, after '2', insert 'or 3'.—[Mr. Foulkes.]

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