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Baroness Buscombe: I accept the Minister's comments in respect of Amendment No. 29, wherein we proposed allowing proceedings for a confiscation order under Clause 6 to be postponed for only six months after the date of the defendant's conviction rather than two years as currently set out in the Bill. I accept the Minister's comments. On that basis, I shall not pursue the amendment.

I do not understand why our discussion is not grouped with Clause 162 stand part, which seems to be a mirror of Clause 7 but which relates to Northern Ireland. I put the suggestion to the Minister that it might save time later if it were dealt with now if he accepts that it covers the same point.

Lord Rooker: I am all for saving time. The groupings are offered to me as a humble Minister. We try our best to have groups which are as large as possible so that we can have structured debates. If there is a way in which another group can be merged with this one, that is fine by me. However, I shall need to take advice.

Lord Goodhart: I shall speak to Amendments Nos. 30, 111 and 155. Amendment No. 111 relates to Scotland and Amendment No. 155 relates to Northern Ireland.

It is important that a convicted defendant should be sentenced within a reasonably short time of that conviction. When I first saw that under Clause 7 sentence would be deferred until after the confiscation order had been decided on I was seriously worried by

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its effect. The removal of Clause 7 has to some extent, although not entirely, removed my concerns about the matter.

I quite understand that confiscation orders may take a long time to investigate, and indeed in many cases probably will take a matter of several months. It is entirely inappropriate that a criminal sentence should be overhanging the defendant for the whole of that period. My amendment may be a little rigid and would be improved by giving the court the discretion to decide whether or not to apply it. However, it seems to me that the principle behind the amendment is correct. In normal criminal proceedings a sentence is imposed immediately on conviction, although in a good many cases it may be deferred for a relatively short period of time in order to obtain social and/or psychiatric reports or other information which the judge needs before sentencing.

It is desirable that the Bill should reflect the principle that there should be a reasonably short time within which sentence should be imposed. That is trebly important in cases where a defendant has been remanded in custody and is therefore sitting in prison, having been convicted, not knowing how long his sentence will be. Therefore, we may want to come back to the matter, perhaps in a modified form, at a later stage of these proceedings.

Lord Rooker: As I said when I made my initial remarks, I in no way want to pre-empt Members of the Committee in making their speeches. It is always difficult when speaking to a government proposal that is grouped with opposition amendments to avoid making the same speech twice. I repeat what I said. I take on board the point made by the noble Lord, Lord Goodhart. We do not see any reason why the court should be bound to a fixed time limit. Basically, I think that we should leave the matter to the courts.

With regard to the point made by the noble Baroness, I am quite happy to have the debate on Clause 162 stand part as part of this grouping if there nothing more to say about it. I am not exactly clear how that would be done from a procedural point of view. But if it were for the convenience of the Committee and everyone agreed that the Clause 162 stand part debate should form part of this grouping I should be happy for that to happen.

Baroness Buscombe: I thank the Minister. We would be entirely happy as the debate on Clause 162 stand part mirrors the debate on Clause 7 stand part.

Clause 7 negatived.

Clause 8 [Recoverable amount]:

Lord Kingsland moved Amendment No. 18:

Page 4, line 16, at end insert—

"( ) But the defendant shall not be held to have benefited to the extent that such benefit has already been forfeited by reason of any other power or enactment."

The noble Lord said: I rise to move Amendment No. 18. Under Clause 6 of the Bill, the Crown Court must, if certain conditions are satisfied, make a

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confiscation order for what is called the "recoverable amount". Clause 8 provides that the recoverable amount for the purposes of Clause 6,

"is an amount equal to the defendant's benefit from the conduct concerned".

Moreover, subsection (4) of Clause 8 provides:

"In calculating the defendant's benefit from the conduct concerned ... any property in respect of which—

(a) a recovery order is in force under section 270, or (b) a forfeiture order is in force under section 300(2), must be ignored". Under Clause 9(3) it is provided that the court must deduct from the recoverable amount any,

"amount ordered to be paid under each confiscation order previously made against the defendant",

and any amount,

"ordered to be paid under each confiscation order previously made against him under any of the provisions listed in subsection (4) [of Clause 9]".

However, I believe that there may be powers in other enactments which could result in confiscation. It may well be that subsequent enactments will give the court powers to make similar orders with regard to criminal offences.

We believe that the Bill can be improved by making it clear that, when calculating the amount equal to the defendant's benefit from the conduct concerned, one must deduct any benefit otherwise forfeited by reason of any other power or enactment. That will make clear what we believe to be the real intention of the Bill, which is to take everything into account. I beg to move.

Lord Rooker: The effect of these amendments would be to require the court to investigate whether any benefit belonging to the defendant had previously been recovered by means of any other power or enactment.

I point out that the Bill already recognises the principle that double counting should not apply. Clause 8(4) for example, requires the court to disregard property subject to a recovery or forfeiture order under Part 5 of the Bill. Additionally, where a confiscation order is made in respect of general criminal conduct, Clause 9(3) requires the court to deduct from the current confiscation order the amount ordered to be paid under any previous confiscation order.

The difficulty with the amendments is that they cast the net beyond previous confiscation orders to any power which may have had the incidental effect of recovering proceeds. The most obvious example of such a power is the power to fine. Another example is Section 27 of the Misuse of Drugs Act 1971, which enables the courts to make forfeiture orders in relation to drugs convictions.

However, there is no formal mechanism in these provisions for calculating the amount of the proceeds recovered. The only legislation dedicated solely and expressly to the recovery of criminal proceeds is currently the confiscation legislation.

Therefore, we currently deal with these types of orders in Clauses 14(2), 100(2) and 170(2), which state that the court must take the confiscation order into

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account before it imposes such orders on a defendant. If the court postpones making a confiscation order until after sentence it cannot make any of these types of orders until the confiscation order has been calculated. That gives the court the flexibility to take account of what has and what has not been included in the confiscation order.

It is true that Clause 14 will have effect only where property is forfeited into the same proceedings as the confiscation order is made. It does not have effect in cases such as Cadman Smith where the criminal is deprived of assets before the case comes to court. However, where Clause 14 does not apply, we think that it is right to continue to recover the pecuniary advantage as well as forfeiting the goods. It may be helpful to quote what the noble and learned Lord, Lord Rodger, said on the point. He said:

"If, then, the value of property obtained as a result of or in connection with the commission of an offence is simply the value of the property to the offender when he obtained it, even if it is subsequently destroyed, damaged or forfeited, one would expect the same general approach to apply in the case of a pecuniary advantage".

For example, if an offender steals a television and subsequently drops and breaks it while carrying it to his home, he would still be liable to have the value of the television confiscated from him even though he could not sell the television in order to make any money. There is no reason why a pecuniary advantage that has been lost should be treated any differently. The point is that recovering the proceeds of crime is supposed to have a deterrent as well as a restitutory effect. It must be a laudable aim to try to stop it being worth criminals' while avoiding excise duty.

From what I have said, it will be clear that the amendments would force the courts to adopt an over-rigid approach in relation to such orders. It is far better for the courts to have the flexibility given to them under the Bill as drafted. For example, the amendments would require the court making a confiscation order to consider the confiscatory effect of previous fines and other measures not designed for confiscatory purposes. That would make matters extremely difficult because the court imposing such a measure may not give a formal indication of precisely how much of the fine is imposed with recovery in mind and what is intended to be penal.

The amendments would therefore tend to undermine the precise calculations which are central to the concept of confiscation. For that reason, we cannot accept them. I hope that the noble Lord will find my explanation helpful and reasonable and will be willing to withdraw the amendment.

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