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Lord Rooker: The noble Baroness referred to orders based on flimsy information and the noble Lord referred to the prosecution dillying and dallying. I put the case on behalf of Joe Public and not the criminal. I am not saying that they are supporting criminals because that is clearly not the case.
For some criminals, at the first sniff of an investigation the assets are out of the gate and up the road quicker than the investigator can take his notebook out of his pocket. That is why we need to be in at the beginning of the investigation. We are dealing here with serious criminals in the sense that they are people who can shift assets very, very quickly and with the speed of lightning sometimes. There will not be any dillying and dallying, but we need to restrain some criminals at the beginning of the investigation and not when charges are made. That is the nub of the issue.
It is always open to the defendant if he believes that the restraint order had continued for too long to return to court to have it lifted. That possibility is always open. The courts exercise discretion in any event in making restraint orders. They already refuse to extend them if they consider that there has been unreasonable delay.
I am sure that the orders will not be based on flimsy information. I can assure noble Lords that there will be no dillying and dallying. This power is necessary simply because of the way in which organised criminals, those to whom the Bill's provisions are directed, operate.
By definition, some of cases are extremely complicated. I am not saying that there is an excuse for the investigation to continue for years. If it did, the defendant would be likely to apply to the court and the judge would lift the restraint order. The provision is there as a stop on behalf of the defendant. We should be reluctant to change the present position. Noble Lords may wish to think about it, but I hope that they will withdraw their amendments.
Baroness Buscombe: I thank the Minister for his response and for his reassurance that what we suggest will not take place. We shall consider his remarks. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 and 64 not moved.]
Baroness Buscombe moved Amendment No. 65:
- Page 28, line 31, leave out subsection (4).
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 66A.
With regard to Amendment No. 65, the provisions of Clauses 41 and 42 combine to have the following effect. First, any person under investigation or against
whom proceedings have been started with regard to an offence, where there are reasonable grounds to believe that he has benefited from his criminal conduct, is liable to have a restraining order made in relation to all his realisable property regardless of the amount of potential benefit.Secondly, a person who is under investigation but against whom proceedings have not been started may be permitted, by way of exception to the restraint order, to expend funds on reasonable legal expenses in relation to the offence or offences under investigation.
Thirdly, a person against whom proceedings have been started can in no circumstances apply for an exception to the restraint order as regards reasonable legal expenses in relation to those proceedings.
There is now available public funding for legal representation before proceedings have been started, which was no doubt the reason for permitting that exception to a restraint order in the Bill.
The Government have now acted to reduce publicly funded representation in criminal proceedings in high cost cases by approximately 40 per cent from that which was regarded as reasonable by officials under the taxation system. The Bar Council's argument that the cuts have been too severe to ensure that representation in these cases will continue at an appropriate level have been rejected on the basis that the market will decide. The legal representatives under new, very high cost cases contract arrangements are accordingly not obliged to undertake the work unless a satisfactory agreement can be reached as to the work that will be paid for and the rate for it in advance of the work being done.
By preventing anyone charged from applying for access to restrained realisable property in relation to reasonable legal expenses in connection with the offence charge, the following practical consequences are likely to occur. First, a person under investigation who is then charged will often be forced into a change of representation as a result of the instructed representative not being prepared to undertake the work at the publicly funded work rates on offer. Thus, his choice and continuity of representative will be substantially removed.
Secondly, a person who is charged will have access only to those legal representatives who are prepared to carry out the work at publicly funded levels. This will restrict the choice and quality of representation substantially.
Thirdly, these restrictions apply regardless of how small the benefit may be in relation to the total realisable assets. Fourthly, the restrictions will create an entirely false market in legal representation in these cases whereby the Government dictate the only rate for the work, having introduced a new contracting system which depends on the representative's right to refuse the work for the contract "negotiation" to have any meaning.
If the real purpose behind the provisions is not total control by Government of all legal representation in these important cases, the answer surely lies in permitting reasonable—not unreasonable—legal
expenses to be met in all situations, as determined by the court. An amendment to delete Clause 42(4) would permit reasonable legal expenses in all circumstances, and thereby provide a reasonable choice of representative to the accused person.The purpose of Amendment No. 66A is to ensure that any person affected by the making of a restraint order not only has the right but the means to apply for a variation. Currently public funding in the criminal courts is available only to the defendant when charges are brought. It is important to note that a large amount of publicity has surrounded the asset confiscation aspects of this legislation but the power of Crown Court judges to impose restraint orders at the beginning of an investigation on what may be only minor evidence has enormous significance. It may have far-reaching consequences for defendants and should be opposed on principle.
An order may also be made against third parties who would have no recourse to legal aid as the proceedings would be of a criminal nature. A third party would not be under investigation. It would clearly be unjust and unwarranted interference unless further consideration is given to the rights of third parties in that regard. No compensation would be due unless the investigator had been negligent, which is a high threshold test to meet.
It is also important to note that under Clause 43 an accredited financial investigator employed by the director of the assets recovery agency may apply for a restraint order. It is crucial that those officers are well trained and do not simply replicate the often shoddy methods by which investigators currently apply for search warrants, for example, on small amounts of information. I am not sure that I dare use the word "flimsy" again. Crown Court judges must be rigorous in testing the information given to them by either employees of the director of the assets recovery agency or by employees of other investigative agencies. I beg to move.
Lord Goodhart: We have tabled three amendments in the group. Of those, Amendment No. 66 would have exactly the same effect as Amendment No. 65, except that we want to remove subsection (5) as well. Subsection (5) would cease to have any meaning if subsection (4) were removed as it is consequential. We have also tabled Amendment No. 130 to remove the same provision in relation to Scotland and Amendment No. 184 in relation to Northern Ireland. We are therefore entirely at one with the noble Baroness.
I shall not repeat what she said but we agree with her entirely. There is no justification for removing the right of a defendant to use what at that stage is his own money. He will be deprived of it just as effectively if he uses it to pay for an expensive QC as if it were confiscated and went to the Government. There is the possibility that bogus expenses could be incurred. There are unfortunately some crooked solicitors who might arrange to overcharge their client and then hand back the money by some devious route. That could be controlled by ensuring that the expenses allowed are
reasonable, as is provided by Clause 42(3). We believe that to be inappropriate. The restriction should be removed so that the funds that are subject to a restraint order can be used to pay the reasonable legal expenses of the defendant, not only in relation to other matters but also in relation to the primary proceedings.9.30 p.m.
Lord Bassam of Brighton: These matters were given a good thrashing around in another place. But our position remains unchanged: we are unable to accept the amendments, largely because they would make the Bill much less effective than is the case at present. We can see no good reason for doing so.
Essentially, the amendments would allow the courts to release restrained assets to pay for any legal expenses, including those of the defendant. They would, therefore, reverse one of the major changes that the Government have made to the restraint provisions in the Bill. As was explained in another place, the report of the Performance and Innovation Unit found that substantial sums that should be available for confiscation were being dissipated on unnecessary legal expenses. I suppose one could argue that the Government are moving to ensure and keep clean the money that might otherwise be paid to lawyers, protecting them from benefiting from potentially ill-gotten gains. That would be a laudable exercise on the part of the Government.
There is no suggestion that the Bill's removal of some of the powers of the court to release moneys for legal expenses will deprive defendants and other litigants of the right to be represented. Criminal and civil legal aid will be available to cover all proceedings under the Bill on the usual terms.
The only people who would benefit from the amendments would be defendants who wanted to reduce the amount available for confiscation—a point made by the noble Lord, Lord Goodhart—and the less scrupulous element of the legal profession, which, of course, is very small in number. I do not believe that the public would necessarily see the benefit. It is perhaps worth adding that Amendment No. 66A is entirely unnecessary. Schedule 8 to the Bill, which has been widely read by noble Lords, already amends the Access to Justice Act 1999 to make it crystal clear that civil public funding will be available, on the usual terms, to cover the situation. Having outlined those very good reasons, I hope that the noble Baroness will feel able to withdraw her amendment.
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