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Lord Rooker: I rise to ask the Committee to delete Clause 89 from the Bill. I beg to move.
Baroness Buscombe moved Amendment No. 92:
- Page 55, line 30, leave out "three" and insert "four"
The noble Baroness said: In rising to speak to Amendment No. 92, I shall speak also to Amendments Nos. 94, 112 and 116 to 118. Amendment No. 92 is a paving amendment for Amendment No. 94, which returns in principle to one of the most important issues of the Bill; that is, judicial discretion.
Members of the Committee will remember that during the course of the first day in Committee, our Amendments Nos. 11, 13, 93, 97, 98 and 144 proposed that the court should have a discretion as to whether an investigation should take place. That proposal was rejected by the noble and learned Lord the Attorney-General on a number of grounds. First, he explained that it was a mandatory process that was not new. Secondly, he said that the provision was the only way to make legislation workable and effective. Thirdly, he said that it was unlikely in the extreme that prosecutors would consider it appropriate to spend the time or resources on pursuing confiscation orders where that was "plainly inappropriate".
The noble and learned Lord the Attorney-General went on to refer to Clause 11 relating to criminal lifestyle, whereby once an investigation has already begun safeguards exist to minimise incorrect assumptions and instances under which the court may consider that there would be a serious risk of injustice if the case were to continue. Those safeguards could be triggered only after an investigation has begun. That said, the discretion of the courts could not be exercised.
Our Amendments Nos. 15, 97, 98 and 146 proposed an alternative which could give the judge a discretion whether to make a confiscation order once the court had had the opportunity to decide whether the defendant had a criminal lifestyle; in other words, the court could exercise discretion once the judge had before him the information which underlay the reason for the prosecutor's request for an investigation. We believed that that was a sensible compromise which would retain some expressed modicum of trust in our judges and would undoubtedly save time and money. The Minister rejected that alternative on the ground
that if the defendant had a criminal lifestyle, that was that. The defendant should pass over his money and then seek to persuade the court why he should have it returned.Turning to the clauses in the Bill relating to Scotland, we are proposing in the amendment another possibility to exercise discretion at an early stage. The effect of the amendment inserts a fourth condition which must be taken into account before the court acts. Clause 94 is central to the confiscation procedure in Part 3 and lists three conditions which must be fulfilled before the court will make a confiscation order. First, the accused must have been convicted of an offence either in solemn or summary proceedings. Secondly, the prosecutor must ask the court to act under that section. Thirdly, the court must decide to order a disposal in respect of the accused. If all three conditions are fulfilled, the court will act under that clause.
The difficulty with that procedure is that no evidence will have been laid before the court at that stage to establish the prosecutor's grounds for asking the court to act under the clause. Clause 104 makes provisions regarding the statement of information which is to be given to the courts by the prosecutor. As currently drafted, however, information under Clause 104 will be provided to the court only after a decision to proceed under Clause 94 has been made.
Our view is that the statement of information should form an integral part of the initial assessment of the case and we therefore suggest that a fourth condition is added to Clause 94 stating that the court will act only after considering a statement of information.
Adoption of that procedure will ensure that the conditions specified in Clause 94 will mirror the procedure detailed in Clauses 107, 108 and 109. In those clauses, the court will not proceed unless it has considered the evidence presented to it by the prosecutor. The inclusion of that fourth condition in Clause 94 would therefore ensure consistency of confiscation procedure throughout this part of the Bill.
As regards Amendment No. 112 and consequential amendments, if it is accepted that the court should receive a statement of information from the prosecutor before acting under Clause 94, the prosecutor will be required to provide a statement at the stage when the confiscation is sought. This amendment and those related seek to reflect the proposed altered procedure. I beg to move.
4.30 p.m.
Lord Hope of Craighead: I support this amendment since it has the support of the Law Society of Scotland. One bears in mind that the second condition is that the prosecutor must ask the court to act under the clause. I believe that in practice a prosecutor would not think it right to take that step unless he was in possession of information which would justify proceeding beyond the opening of the procedure in Clause 94 and carrying it through to the end. Therefore, in practice I suspect
that the prosecutor would be in possession of the information called for in the additional condition mentioned in the amendment.If there were practical reasons why the prosecutor could not at the initial stage provide the information then the position would be rather different. My own experience suggests that in practice the prosecutor would be in a position to do this at the outset. There is much to be said for the point made that it would be better to have the position clarified at the outset so it is established before the procedure gets under way.
Lord Bassam of Brighton: My understanding is that the issue was fairly debated in another place and given quite a lot of consideration. As the noble Baroness said, subsections (2) to (4) of Clause 94 set out three conditions which must be satisfied if the court is to act. As the noble Baroness said, these amendments insert a fourth condition, that the court must first consider the evidence contained in the prosecutor's statement of information.
Our argument is that Amendments Nos. 92 and 94 are unnecessary. The prosecutor's statement, which sets out the Crown's calculation of an accused's proceeds of crime and assets, will in practice always be served on a convicted person and also lodged with the court. Accordingly, the court will always have before it a prosecutor's statement, so that point is satisfied.
If the convicted person has neither a proceeds of crime figure nor assets, then the Crown would not pursue confiscation. Amendments Nos. 92 and 94 would therefore not provide any further safeguard because the protection is already in place. The remaining Amendments Nos. 112, 116 and 118 are consequential on Amendments Nos. 92 and 94.
I am not an expert on the Scottish situation. It is only the prosecutor who can make such a Motion. The court itself cannot instigate confiscation proceedings of its own volition. In addition, confiscation proceedings are only alive and running when the prosecutor makes a Motion and pursues that course. Therefore, the amendment is unnecessary in any event. We see the point which the noble Baroness makes, but we believe that the situation is already covered. I hope that those assurances are sufficient and that the noble Baroness is encouraged to withdraw her amendment.
Baroness Buscombe: I thank the Minister for his response. I accept entirely what he has said, which has given me food for thought. I shall consider it with care and at Report stage we shall consider the contrasting position for England and Wales, which may be very helpful to us. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 93 to 98 not moved.]
Baroness Buscombe moved Amendment No. 99:
- Page 56, line 23, at end insert—
The noble Baroness said: This amendment seeks to ensure that those persons who are likely to be affected by the making of a confiscation order will have an opportunity to appear before the court to make representations. In essence, it is a probing amendment. While we welcome the expressed position in the Bill, supported by the Law Society of Scotland, to enable third parties who are likely to be affected by a confiscation order to make representations to the court, we believe that it should also be clear from the Bill that such parties can appear before the court to make representations. That should ensure that any confiscation order made will be for the correct amount and that delays in the realisation of the proceeds will be kept to a minimum. Perhaps the Minister can clarify why the reference to representations does not expressly allow for it to be in person. I beg to move.
Lord Rooker: I hope that I shall be able to satisfy the noble Baroness. The amendment seeks to expand on Clause 94(8) but it does not add anything to it. Subsection (8) provides that, before making the confiscation order, the court must take into account any representations made to it by any person who the court believes is likely to be affected by it. In practice, any person who may be affected by such an order is entitled to appear before the court and make out a case. That is a well-established procedure in Scotland and it is endorsed by the courts.
The proposed amendment does not afford third parties any greater rights than are already afforded to them under subsection (8). I realise that the wording might not give that impression, but in practice it is exactly the same. We are like minds on this matter. The amendment is unnecessary to achieve the purpose to which the noble Baroness referred. I have put it on record that it has no effect and that no one will be denied the opportunity to put their case.
"( ) In making representations to the court under subsection (8), any person whom the court thinks is likely to be affected by the order shall be entitled to appear before the court."
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