Jenny
Willott: Will the Minister confirm whether the provision
of public transport will be taken into account when deciding on an
order under part 6? There are certainly parts of the country where
using public transport is simply not a viable way for someone to hold
down a job. Would that be taken into
account?
Bridget
Prentice: I have just said that the court, in making a
decision, would only make it appropriately and when all other avenues
have been explored. I assume that the court would take into account all
of the defendant’s concerns and needs before deciding to make
the clamping order. Schedule 16 makes it clear that any regulations
made for the detailed operation of motor vehicle orders would offer
protection to defendants: first, the court must be satisfied that
failure to pay is a result of wilful refusal or culpable neglect and
that the amount raised by the sale would exceed half the amount due;
secondly, by specifying that a disabled person’s vehicle may
never be the subject of an order; and thirdly, by specifying that, once
a vehicle has been clamped, it may not be sold until after a specified
period. The
powers set out in clause 131 and schedule 16 add to existing measures,
ensuring that the defendant who can afford to but nevertheless fails to
comply will face a speedy, effective but proportionate sanction. On
that basis, I hope that the hon. Gentleman feels able to withdraw the
amendment.
Mr.
Bellingham: I am grateful to the Minister for her
explanation, which was given with her usual courtesy and understanding
of our position. I would take her to task for what she said about cars,
but I shall not go down that byway tonight, Mr. Cook,
because you might well call me to order. On the basis of what the
Minister
has said, some of the assurances that she has given to us and her
commitment to look again at one or two aspects, I beg to ask leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
131 ordered to stand part of the Bill.
Schedule 16
agreed
to. Clause
132 ordered to stand part of the
Bill.
Clause
133Exploitation
proceeds
orders Question
proposed, That the clause stand part of the
Bill.
Mr.
Bellingham: We have supported the Government’s
policy of including part 7 on criminal memoirs in the Bill and have
taken the view for some time that people who commit heinous crimes
should not benefit financially from them after their release or, as in
some cases, while they are in prison. Will the Minister give us a
two-minute thumbnail sketch, which will be a challenge for her, of how
the clause will
work?
David
Howarth: Like the hon. Gentleman, I have no objection to
the general principle—indeed, I support it—that people
should not benefit from their own wrong. Civil remedies in this area
are more difficult to obtain than and are not as extensive as some
academic commentators would have us believe. I have two points,
however, one of which applies to the whole of part 7, while the other,
which I would like the Minister to address, relates specifically to
clause
133. On
the general point, there is rightly very little sympathy for a
criminal’s right to express themselves and gain from writing
about or exploiting their criminal career. Nevertheless, freedom of
speech is not only about the rights of people to share information, but
about the rights of other people to receive it. I am slightly concerned
that the rights of the general public, who might view certain
information or opinions as useful, have not entirely been taken into
account. I will talk about that in slightly more detail when we get to
clause 140.
In certain
cases, someone taking part in a protest might be found guilty of
criminal trespass or some other offence related to direct action, or
someone might be found guilty of an offence under the Official Secrets
Act, whereby the person expressing their views and telling their story
should not particularly have any rights. We should not worry about
that, but we should worry about the fact that we as citizens might be
denied the opportunity to hear what happened to such people and to
judge the authorities’ actions in the light of
that.
Mr.
Garnier: I may have misunderstood the hon.
Gentleman’s point and the clause under discussion, but the
contents of clause 140 may be of use to him. As I understand it, clause
133 confiscates the profit, but it does not prevent the
publication.
David
Howarth: As the hon. and learned Gentleman says, we will
get to the detail of the issue in clause 140. However, if all profits
are taken from certain activities, that will result in less information
on those activities being available in the public domain in the long
run.
Mr.
George Howarth: That depends whether an offence has been
committed.
David
Howarth: Well, there might also be further information of
interest to the public. I have no interest in, or brief for, the
offender, but the public’s interest in hearing about certain
activities is affected to some degree. We will come back to the
details in clause 140.
My second
point is about where the money goes. Under clause 133, the money will
go to the Consolidated Fund. In other words, it will go to the
Government. Surely, if the concern is mainly with the victims of the
crime, the money should go to the victims, or if not to the particular
victim, to victims in general.
Maria
Eagle: I am happy to deal with the points raised, although
the first point that the hon. Member for Cambridge made was somewhat
esoteric. I am not going to argue about why we should have the scheme,
as everybody seems to agree that we should have it, and it has been
quite a long process to decide what balance to strike and how it ought
to be done.
Subsection (1)
will provide a relevant court with the power to make an exploitation
proceeds order against qualifying offenders who have obtained a benefit
from exploiting material pertaining to a relevant offence under
subsection (3). The order will require the offender to pay a sum of
money—the recoverable amount—in respect of the proceeds
obtained to the relevant enforcement authority. The order will specify
the recoverable amount and identify the benefits to which the order
relates. It is intended to make sure that it deters, by way of removing
profit, the convicted person from producing their book, memoir, film or
whatever if the sole interest is in making a profit for the
offender.
Subsection (6)
explains that, if a respondent fails to pay the recoverable amount, he
or she must pay interest at an appropriate rate. The appropriate rate
is defined in subsection (8)(a). Payment itself, including any
interest, is made to the Consolidated Fund, although the intention is
that it should then be divided up between the enforcement agencies to
assist them in carrying out further operations.
The hon.
Member for Cambridge is right in saying that the recovery money is not
intended to go directly back to victims. Victims of crime can, of
course, claim criminal injuries compensation. That is the intention and
the purpose of the scheme. As the hon. and learned Member for
Harborough said in his intervention, it is not an attempt to prevent
freedom of speech or to stop people from publishing; it is an attempt
to remove profit from any such publication.
The hon.
Member for Cambridge, in his somewhat esoteric first point, was really
asking whether there was a public interest test. Enforcement
authorities, when deciding whether to apply for a court order, will
decide whether there is any public interest in doing so. One expects
them to be rather less inclined to take out, or apply for, such an
order against a protester who has been locked up than against a triple
murderer who is seeking to exploit his notoriety by producing lurid
publications to the evident distress of his victims. Those who are
responsible for deciding whether to apply for such an
order—whether the Attorney-General or the Serious Organised
Crime Agency—will be perfectly capable of making a proper
distinction between those two examples.
Clause 133 is
the first of a number of clauses in part 7 that will implement the
civil recovery scheme and are intended not to prevent publication but,
with a public interest test, to protect the fact that there are certain
circumstances—for example, academic research—where it
would be perfectly sensible to publish and not to remove profits from
publications. There will be a small number of cases, perhaps one or two
a year at most, where that might deter someone convicted of a serious
offence from exploiting the notoriety of their offence for personal and
monetary gain.
Mr.
Garnier: A publishing company that publishes books, as
opposed to newspapers, will presumably not enter into a contract to
publish if it feels that the book will fall foul of the provision; or
will the book publisher be able to make a profit even if the
author—the
criminal—cannot?
8.30
pm
Maria
Eagle: The answer to that is probably yes, because we are
not intending to chase the publisher or to try to prevent publication.
We are trying to prevent the thing that upsets victims and relatives of
victims in these instances: the criminals—the notorious
offender—making a profit from their
crime. I
am sure that the hon. and learned Gentleman has had a close look at the
Bill. He will know that we do not intend to pursue publishers for any
money that they make, but we would expect them to co-operate by telling
us of any arrangements that have been made with the individual against
whom the order will be made. The intention is to prevent the offender
from profiting, not to chase any kind of profit that might result from
publication. Question
put and agreed to.
Clause 133
accordingly ordered to stand part of the
Bill.
Clause
134Qualifying
offenders Question
proposed, That the clause stand part of the
Bill.
David
Howarth: I want to ask about clause 134(3), which is about
foreign offences. Could the Minister explain why they are covered?
Surely the country that should have jurisdiction over offences
committed in another country is that country itself. What will happen
if the country also has a scheme similar to the one in the
Bill?
Maria
Eagle: The intention is that for an application to succeed
in respect of a case where the offence has occurred on foreign soil,
the individual must have been found guilty of an offence that would
have constituted an offence had it been committed in the UK, and must
be a UK national or resident, or a person who was resident in the UK at
the time of the offence. The Bill will catch the individual who goes
abroad to commit a heinous offence, which would have been an offence in
the UK, is convicted abroad, but then comes back and exploits his crime
for profit.
Mr.
Bellingham: Gary
Glitter.
Maria
Eagle: Far be it from me to use specific examples, but we
can all think of some. [Interruption.] I was
responding to the hon. Member for North-West Norfolk, who is clearly
still awake, even though it is getting late. I do not wish to pick on
particular cases, but clearly there would be a loophole if this
arrangement did not apply in such
circumstances. Question
put and agreed to.
Clause 134
accordingly ordered to stand part of the Bill.
Clauses 135
and 136 ordered to stand part of the
Bill.
Clause
137Relevant
offences
Maria
Eagle: I beg to move amendment 321, in
clause 137, page 87, line 38, leave
out ‘subsection (2)(c) of that section’ and insert
‘section 135(2)(c)(i) or
(ii)’. The
amendment simply amends a cross-reference to another clause in the Bill
which was drafted incorrectly. It is a minor technical
amendment. Amendment
321 agreed to.
Clause 137,
as amended, ordered to stand part of the Bill.
Clauses 138
and 139 ordered to stand part of the
Bill.
Clause
140Determination
of
applications Question
proposed, That the clause stand part of the
Bill.
David
Howarth: The heart of the scheme is in the clause, because
it tells the court how to determine applications for the orders. I want
to query whether subsection (3)(d) was broad enough. It states that the
courts should take into
account: “the
social, cultural or educational value of the activity or
product”. As
the Minister mentioned during the debate on clause 133,
there is, as far as I can tell, no general public interest test. What
we have instead is a kind of implied public interest test, with various
elements of such tests taken individually. What strikes me about
“social, cultural and educational” is that it does not
include political—the function of holding the Government to
account: for example, the case that I mentioned earlier about a
protestor. There
is public interest in information coming out about the activity or
authority surrounding a conviction of a protestor for a criminal
offence—as all criminal offences are covered—where the
offender might have something useful to say to the public about holding
the Government to account. The Minister said that there was a great
deal of discretion surrounding that, and that those cases might not be
proceeded with, but I would prefer to have some assurance in the
Bill. Another
issue is raised by subsection (3)(f), which seems to be fine until it
gets to the general public. To the extent to which any victim and
family of the victim are
offended, I can see why that is highly relevant. But how is the court to
judge offence to the general public? Is it to do an opinion poll, or
simply to read the headlines of the popular newspapers to judge whether
the public have been
offended? Mr.
Garnier: I have just a bit—not a great
deal—of sympathy for the hon. Gentleman’s comments, which
seem to be moving too much towards an undergraduate essay question,
rather than looking at what the clause does. It is not for me to
respond on behalf of the Government, but I comfort myself—even
if I cannot comfort the hon. Gentleman—by looking at clause 139,
which states
that “An
enforcement authority...may make such an application only with the
consent of”
the Attorney-General in
relation to the High Court in England and Wales, and the
Advocate-General in Northern Ireland. I would imagine that those office
holders would assess the public interest in relation to subsection
(3)(f) when looking at whether the general public are being offended. I
cannot imagine that there will be a whimsical application made to the
court; it will only be in utterly and obviously offensive cases. I do
not imagine—I certainly hope not—that an Attorney-General
would permit such an application. For example, under the legislation,
the lady we mentioned who read out the names on the Cenotaph will be
prohibited from selling a pamphlet about her arrest and
detention.
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