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Lord Goldsmith: If the facts are such, then either the defendant will demonstrate that the assumption that certain property has been acquired as a result of a criminal lifestyle is incorrect, or the court will form the view that there would be a serious risk of injustice in making that particular assumption. I suggest that those are the safeguards which are important and appropriate.

Finally I turn to Amendment No. 78, spoken to by the noble Baroness. It is similar to the previous amendments and would give the court discretion as to whether to find that a defendant had a criminal lifestyle and therefore to make the assumptions at all. That is absolutely diametrically opposed to the existing legislation, a statute brought forward by the noble Baroness's own party in the last administration. It would mean rowing back from the existing position and, in the Government's view, it would undermine the effectiveness of this legislation.

For those reasons, we cannot support the amendments. I hope that they will be withdrawn.

Lord Thomas of Gresford: Generally, when counsel makes an application to a judge in court, he does not know what the result of that application is going to be, however confident he may feel. What is envisaged under this legislation is that the prosecutor will say, "I have decided, in the exercise of my discretion and in exercising my independent judgment—that is, independent of the Attorney-General and anyone else—to make this application. You have no choice. You must enter upon the inquiry which I now require you to make". I find it constitutionally unacceptable for such a power to rest simply with the prosecutor. The judge will have no control over an application made to him in court.

The noble and learned Lord the Attorney-General surely was setting his case rather high when he said that giving a discretion to the judge to stop such an application on the threshold would amount to a serious and dramatic weakening of the legislation. I would be interested to know between now and Report stage whether any instance has come to the Attorney-General's notice where an application by a prosecutor has been refused on the threshold by a judge. If that is the case, what were the circumstances and the reasons given by the judge for exercising the current discretion that he has in cases other than drugs cases?

Viscount Bledisloe: I agree with much of the reply given by the noble and learned Lord. The amendments

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are too wide. Apart from anything else, under Amendment No. 13 a judge would have to decide whether it was appropriate to proceed before he had investigated the matter.

None the less, there will be exceptional cases. The noble and learned Lord accepted my suggestion that blackmail may be exceptional. When asked by the prosecutor or the director for an order, could not the judge have the power to decide not to proceed in exceptional circumstances? Such an amendment has not been asked for but perhaps the noble and learned Lord will consider the matter.

The noble and learned Lord spoke about the prosecutor as though it would always be the Crown Prosecution Service which would ask for an order. It may be unlikely in relation to the offences to which we are referring but there is always the possibility of a private prosecution—and a private prosecutor may be singularly unreasonable in what he may ask for in relation to a victim. I do not ask for an answer now, but will the noble and learned Lord consider before the next stage whether it might be appropriate to give the court a residual discretion, limited to exceptional circumstances, to decide not to proceed even if the prosecutor or the director has asked it to do so?

Lord Goldsmith: I shall not answer now but we always consider carefully what noble Lords say.

Let me make two provisional comments. First, when I dealt with the blackmail example, I was pointing to the fact that the court has the ability to say that it is inappropriate to make the assumption because there would be a serious risk of injustice. We should not overlook that extremely important safeguard and the safeguard where the defendant shows that the assumption is incorrect.

Secondly, the Director of Public Prosecutions has the ability to take over proceedings started by a private prosecutor. So where a private prosecutor is thought to be abusing whatever power he may have—whether bringing a prosecution or taking a particular step in the process—there is always the remedy that the director (and therefore the Crown Prosecution Service) can step in and exercise his judgment in relation to the case.

Baroness Buscombe: I thank the noble and learned Lord the Attorney-General for his response. Perhaps I did not make it clear that, in speaking to Amendments Nos. 11 and 13, I was seeking to set a comparison between having the discretion right at the beginning or later. I agree with the noble Viscount, Lord Bledisloe, that it is too early—notwithstanding the debate that took place in another place—because the information that underlies a request for an investigation is not in front of the judge or magistrate, in which case it would make sense to see some discretion kick in at a later stage. That is the purpose behind Amendment No. 15.

I wondered how long it would be before the noble and learned Lord made reference to what I said at Second Reading, as I was sure he would. I stand by what I said then because we are not in any way

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diminishing the ability of the legislation to be workable and effective by proposing Amendment No. 13. It will not remove a major plank of the scheme. It simply seeks to give discretion to the court to address the individual circumstances of the case. It would mitigate the potentially onerous and time-wasting impact of this provision.

The noble and learned Lord said that it would be unlikely in the extreme that the prosecutor would use this procedure unnecessarily, but surely that is not a good reason for removing any discretion. We are simply proposing the introduction into the legislation of an important, tested and tried safeguard. I have heard what the noble and learned Lord has said and I shall read it with care in Hansard. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Baroness Buscombe moved Amendment No. 12:

Page 3, line 17, at end insert "as having taken place after this Act comes into force"

The noble Baroness said: In moving Amendment No. 12, I shall not speak to Amendment No. 88, with which it is grouped.

Amendment No. 12 seeks to ensure that the Bill is not applied retrospectively. Throughout the Bill, the possession of the alleged proceeds of crime and an alleged criminal lifestyle derived from those proceeds is differentiated— hence the alleged criminal lifestyle may have taken place many years previously and yet proceedings in relation to current possession of alleged proceeds is deemed a current and not retrospective offence.

Retrospective legislation lacks clarity and raises issues of unfairness because of the time that has passed. The burden of proof is of a civil standard and in confiscation proceedings it shifts to the suspect. At the very least we consider 12 years to be too long a period given that the Inland Revenue requires documentation to be held for only six years. I beg to move.

Viscount Bledisloe: I am wholly opposed to the amendment. Quite apart from the fact that it is inelegantly worded, it is a misapplication of the presumption against retrospective legislation, which is that actions should not be criminalised or made illegal after they have been carried out. To say that a new procedure designed to get back the proceeds of what was always criminal is retrospective legislation and objectionable is entirely contrary to the principles against retrospectivity.

Lord Rooker: As a starting point, I hope that the noble Baroness will accept that recovery of the proceeds of crime can never be unjust. It does not matter when the crime was committed as long as there has been a conviction.

Our view is that confiscation orders made after the commencement of the Bill which deal with general criminal conduct should be able to recover the benefit

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from conduct that took place at any time. The penalty attaches to the offence of which the defendant has been convicted rather than to the offence for which the benefit is being confiscated. This interpretation has been endorsed by the Court of Appeal and the Strasbourg Court in the case of Taylor.

Any other interpretation would make the legislation completely unworkable because lawyers—I almost said my learned friends—would be queuing up on behalf of defendants to argue whether the property in question derived from a crime and when the crime was committed. The split in the current legislation between drug trafficking and other crimes has caused difficulties because defendants have sought to argue that the property was derived from different types of crime and they somehow think, "Well, that is okay then. If it is one type of crime, that is okay".

As I said, the recovery of the proceeds of crime cannot be unjust. The amendment would provide a loophole which would be easy to exploit. Criminals would argue that the crime giving rise to the benefit was committed before the relevant cut-off date. I ask the noble Baroness to reconsider the matter. I am sure that having done so she will not press her amendment.

Baroness Buscombe: I thank the Minister for his firm response. I had been encouraged to propose the amendment by members of the legal profession, which perhaps explains his response that learned friends would be queuing up. I say no more than that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 to 15 not moved.]

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