Joint Committee On Human Rights Eleventh Report


The Joint Committee on Human Rights has agreed to the following Report:



1. In our Third Report, in November 2001, we reported our provisional view as to the human rights implications of the Proceeds of Crime Bill.[1] We had raised a number of questions and concerns with the Home Secretary. We have since received a reply, in the form of a memorandum from the Home Office, sent on 7 January 2002. We are grateful to those who prepared the memorandum for the clarity with which the Home Office's position is set out. The letter from the Committee, and the Home Office memorandum in response, are printed in the appendix to this report.[2] We now report on our further consideration of the Bill in the light of the Home Office memorandum. This report should be read in conjunction with our Third Report.

The Matters raised with the Home Office

2. Matters relating to confiscation orders following convictions of offences. Generally, we considered that it would be possible to operate the provisions relating to confiscation orders following convictions in a manner compatible with Convention rights. None the less, we reported that we had put a number of questions to the Home Secretary in relation to certain concerns about the human rights compatibility of these aspects of the Bill. In particular, we had asked the Home Secretary—

-  whether he thought that there would be advantages, in terms of legal certainty, if the statutory assumptions which the Bill would require to be made when a court is deciding whether to make a confiscation order following a conviction of an offence, were the Bill expressly to incorporate the constraints necessary to ensure that the process would be compatible with ECHR Article 6;[3]

-  whether he thought that the requirement of proportionality was likely to be met whenever a court was under a duty to make a confiscation order following conviction of a crime other than a drug trafficking offence, particularly when the ground for making an order is that the defendant has a criminal lifestyle;[4]

-  why no express provision was made for England and Wales or Northern Ireland equivalent to the protection offered in Scotland to members of a convicted person's family against confiscation of the family home in certain circumstances.[5]

3. Matters relating to the proposal for a new civil recovery procedure. In relation to the parts of the Bill dealing with the proposal for a new civil recovery procedure for suspected proceeds of crime, we took the view that the procedure, although nominally and procedurally civil, would be likely to be treated as involving a 'criminal charge' for the purpose of applying ECHR Article 6, both in international law and under the Human Rights Act 1998.[6] In the light of this, we had asked the Home Secretary—

-  why he thought that preventing a person from using his or her property to pay for legal assistance, where the property would otherwise be the subject of civil recovery proceedings, would be compatible with the right to defend himself through legal assistance of his own choosing, under ECHR Article 6(3)(c);[7]

-  whether he wished to comment on our view that there was a significant risk of the retrospective operation of the civil recovery procedure violating the right not to be penalized for an act or omission which had not at the time constituted an offence, under ECHR Article 7.[8]

4. We now consider the views expressed about each of these matters in the Home Office memorandum

1   See our Third Report of 2001-02, Proceeds of Crime Bill, HL Paper 43, HC 405 Back

2   See pp Ev 1-9, below Back

3   Third Report, p xi, para 21 Back

4   ibid., p. xii, para 24 Back

5   ibid., p xii, para 27 Back

6   ibid., p xiv, paras 33-34 Back

7   ibid., p xv, paras 37-39 Back

8   ibid., p xvi, paras 40-41 Back

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Prepared 11 February 2002