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Lord Goldsmith: Yes, the noble Lord is entirely right. The provision does not affect particular criminal conduct; we are here concerned with offences that attract the general conduct provision and the assumptions that then apply.

We shall oppose the Motion that Clauses 88 and 89 stand part of the Bill, because they were simply a way to include drug trafficking and money laundering offences, as we now propose to do in the schedule.

Amendments Nos. 73 to 75 and 190 would prevent a confiscation order from being made following a conviction in the magistrates' court unless the offences were punishable by imprisonment. Amendment No. 74 would prevent a confiscation order from being made following a conviction in the magistrates' court unless the offences were triable on indictment. In other words, it would exclude either way offences.

The effect of Amendment No. 75 would be that when it committed a defendant to the Crown Court for confiscation, the magistrates' court would not also

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have to state whether or not it would also have committed the defendant for sentencing under its existing powers. That might have the effect of limiting a Crown Court dealing with an offender committed to it for confiscation to the sentencing powers of the magistrates' court, even if the case were one in which the magistrates' court would have committed the offender to the Crown Court for sentence.

Many of the reasons why the Government oppose those amendments have already been covered in another place. I refer Members of the Committee to the Hansard reports of 15th November 2001 at cols. 107 to 116 and of 29th November 2001 at cols. 406 to 411. Our position on the issue is straightforward. The idea that one may exclude from confiscation any class of criminal conduct is unacceptable in principle. Apart from the practical possibility of significant proceeds being derived from some summary offending, that would be tantamount to saying that we have no objection to offenders retaining the proceeds of their crimes. If conduct constitutes a criminal offence—as summary conduct does—its proceeds should be liable to confiscation.

Indeed, the coverage of summary offending in confiscation legislation is nothing new. The Hodgson committee, whose 1984 report on the proceeds of crime and their recovery underlay the first confiscation legislation, was not only concerned with serious offending. The committee was also exercised with:

"contraventions of regulations that involve little or no public obloquy but where the profits made from the offence far outweigh, in many cases, any penalty exacted".

Hodgson referred to:

"the demolition of a listed building, the felling of protected trees, the systematic overloading of vehicles and the pollution of the environment"—

as—

"some of the ways in which huge profits are made from breaking the law".

The report considered whether it would be possible to limit confiscation to serious crime—perhaps defined as offences carrying the possible sanction of a prison sentence, but rejected this view. It considered that a serious crime approach would exclude many of the profitable regulatory offences which it clearly thought should be included. I await what is said when the amendments are moved, but the Government's approach is to include any summary offence, rather than the somewhat arbitrary listing that appears in existing legislation.

I turn to the proposed deletion of Clause 70(5). The subsection is required once the prosecutor has asked the magistrates' court to commit a person to the Crown Court for confiscation because, but for that provision, it may not indicate whether it would have committed the offender for sentence under existing powers. Without such an indication, the Crown Court would be limited to the sentencing power of the magistrates' court. That would not be correct if the magistrates' court would have committed the offender for sentence in any event.

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Amendments Nos. 82, 136 and 196 would delete subsection (2)(c) from Clauses 75, 145 and 229. In the light of the Government's approach through the new schedule, they may not be pressed. I see the noble Baroness, Lady Buscombe, nodding, so I shall wait to hear what she says about them.

I turn to Amendment No. 195, which would add to Clause 29 in Part 4 the offence contained in Sections 11, 12 or 13 of the Terrorism Act 2000. Those sections concern membership of and support for a proscribed organisation and the wearing of uniforms. I suggest that none of those are inherently acquisitive offences, and we do not support the amendments for that reason.

I turn to opposition Amendments Nos. 79, 84, 85, 135, 138, 139, 190, 194, 198 and 199. They are all attempts to water down the effect of Clause 35. I think that I have already dealt with those amendments. If I have not, I shall come back to them, when they are moved.

I should mention Amendment No. 80. It is similar to those to which I have referred. It would exclude either-way offences from the application of the assumptions. It follows from what I said that the Government view the inclusion of either-way offences as even more appropriate than the inclusion of summary-only offences. I shall give an example. Either-way offences include theft. In its judicial capacity, your Lordships' House recently upheld the making of a general criminal conduct confiscation order for over £200,000 in the case of Rezvi. He had been convicted of two counts of theft. That is the existing legislation, and we do not want to row back from that.

I apologise for taking so much time, but I hope that I have indicated why we put forward our amendments and why we will resist the other amendments in the present grouping. I beg to move.

3.45 p.m.

Lord Thomas of Gresford: On behalf of those on the Liberal Democrat Benches, I welcome the clarification in the schedule and the adoption of the affirmative procedure to extend the schedule at any future date.

I listened to the explanation given by the noble and learned Lord, Lord Goldsmith, relating to the other offences for which no acquisitive element can be defined. I understand the Government's reasons for excluding those matters from the schedule. If we have the opportunity to consider the matter further, it will, I am sure, become quite acceptable. The rationale is entirely acceptable.

Particular lifestyle offences are referred to. Drug trafficking is very serious, and people trafficking is as profitable today—some say that it is more profitable than drug trafficking. I am pleased to see that it is dealt with in the schedule. Counterfeiting has always attracted substantial sentences of imprisonment. Offences relating to intellectual property can carry heavy sentences. Sentences of years are passed for counterfeiting. It is a profitable trade, and it is easily done. It involves international counterfeiting and is a

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serious problem. I also follow the inclusion of blackmail in the terms to which the noble and learned Lord referred.

I regret to say that I do not accept the provisional explanation that the noble and learned Lord gave for resisting the amendments put forward by the Opposition. It is noticeable that all the lifestyle offences are serious matters; there is nothing trivial about them. It is a major leap from such matters to what is to be contained in Clause 75(2)(d), which refers to,

"conduct forming part of a course of criminal activity".

Such conduct is defined in subsection (3). All that is required are convictions for three or more offences. There is no qualification.

As the noble and learned Lord said, the matter was considered in the Hodgson report. The requirement in the clause refers to—or can refer to—all summary offences, particularly with regard to Clause 70. The noble and learned Lord said that the thrust of the legislation was to deal with profitable regulatory offences that did not carry sentences of imprisonment. The sort of matters that are referred to hardly come within the concept of a criminal lifestyle. A person who chops down trees or pollutes the atmosphere can hardly be described as having a criminal lifestyle. That is where I find a problem.

There must be some targeting of resources for all the provisions of the Bill. It is expensive—in time and resources—to take people to court to obtain orders under the existing legislation. I have some experience of that, as I said at Second Reading. It is time-consuming, and one would not want to see people brought to court for an order to be made under the new legislation in respect of trivial matters. Of course, the Director of Public Prosecutions—or the court, of its volition—must decide to make such an application.

I shall not address each of the amendments in my name and that of my noble friend Lord Goodhart, but I shall say that we are trying to place some reasonable limits on the extent to which the Bill should go. Consequently, we have suggested that, for the relevant parts of the Bill, a criminal lifestyle should be defined only with reference to the commission of crime that is punishable by imprisonment. Anything less than that takes the concept of a criminal lifestyle into the realms of absurdity and would not be acceptable. It is in that regard that I speak to our amendments. We will deal with them in due course.

Viscount Bledisloe: I wish to make one technical—but not entirely unimportant—point and ask the noble and learned Lord one question.

Amendment No. 3 would introduce a new schedule. There would be no provision in the Bill to tell us what the schedule was for or to what it relates. Such a provision would not exist unless we were to pass Amendment No. 81. Surely, the right way in which to draft the amendments and present them to the Committee would have been to propose Amendment

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No. 81—to introduce the schedule—first and then propose the amendment that includes the schedule itself.

I accept that it is unlikely that Amendment No. 3 will be passed and Amendment No. 81 not. However, for anyone coming to the matter fresh, it would make things difficult to have an amendment introducing an entirely new schedule with no introduction and no clue as to what it is doing before one gets to Amendment No. 81. There is no difficulty. The schedule to be inserted by Amendment No. 3 must come after Schedule 1 because it comes before Schedule 2, which relates to Clause 140. Amendment No. 3 could easily have been presented after Amendment No. 81.

The noble and learned Lord said that the offence that he had in mind was gang extortion. Will the offence cover all forms of blackmail? For example, a disappointed mistress may say to a man that unless she is sent some money, she will publish details of his misdoings in the paper. That is not a criminal lifestyle. If the clause would cover such things, is it not too wide? Should it not be limited in some way to organised and—so to speak—professional extortion?

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