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Lord Thomas of Gresford: Perhaps I may ask a question in support of my noble friend. Why should this Bill give a discretion to the prosecutor but no discretion to the court? I repeat that question because I want to be sure that the noble and learned Lord the
Attorney-General has heard my question, which is very short. Why should the discretion as to whether or not to bring proceedings under the Bill rest with the prosecutor, not with the court? I quite fail to follow the rationale of that provision. Once the prosecutor says, "We will have an investigation", it is mandatory. Is it that the Government do not trust the judges, or what?
Lord Goldsmith: I apologise to the noble Lord for my momentary lapse of attention for technical reasons. The amendments now before the Committee resurrect quite a lengthy debate in another place. The amendments are different variants of the same point; namely, to remove the mandatory element, or elements, from the scheme.
I should like to make some general points before dealing with the specifics of the amendments. First, the use of a mandatory process is not new. Under existing drug trafficking confiscation legislation that applies to England and Wales, it is the position—and has been for a number of years—that there is a mandatory requirement for the assumptions to be made following conviction of a single drug trafficking offence. Indeed, having found that the existing legislation in 1988, which did not include mandatory assumptions, was not working, the previous Conservative government introduced mandatory assumptions into the later Bill. Therefore, although it is true that the mandatory element does not apply in all cases, either across the United Kingdom or in relation to all offences, it would be very strange to row back from the existing position in relation to whether such assumptions should be made mandatory.
Secondly, we need to remember why the legislation is necessary. As was largely agreed on Second Reading, it is necessary because the proceeds of crime are fuelling more crime: they are the working capital of drug traffickers, of people traffickers, and of organised crime. As the noble Lord, Lord Kingsland, put it pithily on Second Reading, they have a corrosive effect. I believe that we are all agreed that it is important for them to be reached. However, at present, only a very small proportion of the proceeds of crime are reached by existing legislation. As I said previously, less than £20 million was confiscated in 2000-01, whereas it is estimated that the added value of the drug trade alone is perhaps as much as £8.5 billion. That represents a very remarkable disparity between what we are able to achieve and the actual proceeds of crime. Therefore, the Government believe it to be crucial for the legislation to be both workable and effective.
I do not choose the words "workable" and "effective" accidentally; indeed, they are words used by the noble Baroness, Lady Buscombe, on Second Reading, when she said that it was the will and wish of her party,
- "to assist the Government in producing a workable and effective piece of legislation".—[Official Report, 25/5/02; col. 19.]
Thirdly, I wish to emphasise the nature of the proceedings that will take place. To begin with, the prosecutor must ask. Noble Lords will be aware that prosecutors—certainly those in the Crown Prosecution Service and in the Serious Fraud Office—come under my jurisdiction. I am the Minister responsible for them. Noble Lords will also be aware that the prosecutors jealously guard their independence: they exercise an independent judgment in the prosecution decisions that they make. Therefore, the only zealousness that I recognise in relation to prosecutors is the exercise of an independent judgment; that is, a judgment in accordance with the facts, with the evidence, and with the law, as opposed to their being over-zealous in the way suggested by the noble Lord, Lord Thomas of Gresford.
As public authorities, it is unlikely in the extreme that prosecutors would consider it appropriate to spend the time or the resources on pursuing a confiscation in a case where that was plainly inappropriate. I regard the fact that the prosecutor must ask as an important, but entirely appropriate, safeguard in these procedures. But there is a further important safeguard. Where we are concerned with a case in which assumptions are to be made, then in two circumstances those assumptions will not be made; first, if the assumption is not made out, as in Clause 11(6)(a), because the assumption is inappropriate and the defendant demonstrates that it is inappropriate, and, secondly, as I mentioned earlier, where the court is of the view that there would be a serious risk of injustice if a particular assumption were to be made. Again, that is a fallback position. That is not to minimise what it is, but it is an important circumstance in which the court, if it thinks that there would be a serious risk of injustice, would be able not to make a particular assumption.
Short of that, what the legislation provides is that if the prosecutor asks for the order and the court finds—either in the particular case or by application of the assumptions—that the defendant has benefited from criminal conduct, then the court will have to make an order. The Government ask: what is wrong with that? If the defendant has benefited from criminal conduct, why should not the proceeds, up to the available amount and not beyond what the defendant actually has—we have debated that point—be forfeited? What is the justification for forfeiting less than that?
Those general points are applicable to all the amendments in this grouping. Perhaps I may refer briefly to the slight variations between the amendments which have been put forward. As the noble Baroness, Lady Buscombe, pointed out, Amendments Nos. 11, 93 and 144—the latter two referring to the respective Scotland and Northern Ireland variants—would put an additional requirement into Clause 6. I suggest that that would have the effect of abolishing the mandatory nature of the procedure. It would change confiscation from a certain disposal applied uniformly across the jurisdiction into something rather unreliable and
subjective. If I may respectfully say so, the lead amendment does not even suggest the criteria by which the court is to decide what is meant by a,
- "real risk of injustice from . . . proceeding".
Noble Lords may also consider that it is important for criminals to know that if they do benefit from criminal conduct, they will not be able to escape and will not be permitted to keep their benefit. If convicted of the relevant offences, then the confiscation procedure will follow. That is an important message.
Amendments Nos. 15, 97, 98 and 146 put the discretion at a different stage; that is, once the court has decided that the defendant has benefited from criminal conduct. The noble Baroness seeks to give the court a discretion, notwithstanding that, not to make an order. If the court has decided that the defendant has benefited from criminal conduct, then the Government ask why the defendant should not have to pass over such money—if the money is not there, that is a different matter—up to the available amount. Why, they ask, should he be allowed to keep it?
If it is a case of application of the assumptions, then a different safeguard is already available. It is that the court will not make the assumption if there is a serious risk of injustice.
I turn to Amendments Nos. 14 and their Scotland and Northern Ireland equivalents, Amendments Nos. 95 and 145, spoken to by the noble Lord, Lord Goodhart. The effect of those amendments would be to prevent the court deciding that the defendant had a criminal lifestyle and confiscating the benefit from his general criminal conduct if it considered that it would be unjust to do so. These are variations on the previous amendments which would make the holding of a confiscation hearing a matter for the discretion of the court.
While we understand that the amendments are not intended to remove the obligation of the court to confiscate a defendant's benefit from particular criminal conduct, they would give the court a discretion not to confiscate a defendant's benefit from his general criminal conduct. If we understand the amendments correctly, because they would not apply to the first case then they are somewhat less objectionable than the amendments proposed by the noble Baroness, Lady Buscombe, but for the reasons that I have already given, we still regard them as unacceptable.
Where the conduct of a defendant shows that he has been living a criminal lifestyle in the ways provided for in the legislation, then to be restricted simply to the
consequences of the particular offence of which a defendant has been convicted would be a very inadequate way of getting at the proceeds of crime.5 p.m.
Lord Goodhart: Does the noble and learned Lord agree that the test of "criminal lifestyle" is so dependent on being convicted of certain particular offences that it could well arise even where, in reality, the defendant has not been living on the proceeds of crime?
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