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The Earl of Mar and Kellie: We have had a brief but interesting debate. Clearly, we need further to consider the matter. At this point in the proceedings, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 107 to 110 not moved.]
Clause 102 [Time for making confiscation order]:
Lord Rooker moved Amendment No. 110A:
- Page 60, line 44, leave out subsection (1) and insert—
On Question, amendment agreed to.
Clause 102, as amended, agreed to.
Clause 103 [Effect of postponement]:
[Amendment No. 111 not moved.]
Lord Rooker moved Amendment No. 111A:
On Question, amendment agreed to.
Clause 103, as amended, agreed to.
Clause 104 [Statement of information]:
[Amendments Nos. 112 to 117 not moved.]
Clause 105 [Accused's response to statement of information]:
[Amendment No. 118 not moved.]
Clause 106 [Provision of information by accused]:
[Amendment No. 119 not moved.]
Clause 107 [No order made: reconsideration of case]:
Lord Rooker moved Amendment No. 119A:
On Question, amendment agreed to.
Clause 107, as amended, agreed to.
Clause 108 [No order made: reconsideration of benefit]:
[Amendment No. 120 not moved.]
Lord Rooker moved Amendment No. 120A:
On Question, amendment agreed to.
Clause 108, as amended, agreed to.
Clause 109 [Order made: reconsideration of benefit]:
Lord Rooker moved Amendment No. 120B:
The noble Lord said: This group of government amendments deals with the ability of the prosecutor to return to court within six years of the accused's conviction for an increase in the confiscation order or a new confiscation order where none was made at time of the original trial. They mirror the amendments that we have already made to Part 2 of the Bill.
The amendments have three purposes. First, under Clauses 107 and 108, the prosecutor is allowed to apply to the court for a revaluation of the accused's benefit from crime only if he has new evidence. There is currently no requirement of this kind in Clause 109. In theory, an application could be made to the court on the basis of evidence held back in previous proceedings. The first purpose of the amendments is, therefore, to bring Clause 109 into line, so that the prosecutor will be able to apply only if there is new evidence.
Secondly, our intention has always been that more than one revaluation should be possible under Clause 109. In looking again at the reconsideration clauses, we doubt whether the wording of the clause currently achieves that intention. It appears to allow for only one application. We have accordingly taken the opportunity to make it quite clear that there may be more than one revaluation under Clause 109. We have also made changes to Clause 110 making it clear that more than one application can be made under Clause 110.
Finally, Clause 110 permits the prosecutor to apply to the court for an increase in the confiscation order where more realisable property comes to light.
Arguably, the clause does not allow such an application to be made where a confiscation order has been varied under Clause 109. We have taken the opportunity to put it beyond doubt that such applications are permissible.
These are fine-tuning amendments. However, I hope that they will send the same message to the criminal fraternity; namely, that we are coming after them for the proceeds of crime. They will certainly help to ensure that the Bill will operate in Scotland exactly as we would wish. I beg to move.
Baroness Buscombe: Has thought been given to the inclusion of the words, "even if he had made reasonable inquiries"? In other words, the prosecutor could not have known about the evidence in the first instance even if he had made reasonable inquiries. It seems that at present one can have a second bite of the cherry without having to demonstrate that one made an effort in the first place to discover whatever the evidence might be. Surely that cannot be the case unless an effort was made in the first instance.
Lord Hope of Craighead: Perhaps I may intervene in that connection. The noble Baroness's point matches a provision that allows an accused person to appeal on the ground of fresh evidence. That right to appeal is qualified by a provision which disables him from doing so if the evidence on which he seeks to rely was not available to him or was not reasonably available to him. That qualification has often proved to be
Lord Rooker: Before replying to those points, perhaps I may repeat the point I made earlier. Under Clauses 107 and 108, the prosecutor is allowed to apply to the court for a revaluation of the accused's benefit only if he, the prosecutor, has new evidence. As I said, in theory, he could apply to the court on the basis of evidence that had been held back in previous proceedings. I cannot envisage such circumstances, although I suppose that they must arise. The idea of holding evidence back in earlier proceedings in order to have a go at someone later sounds slightly weird.
The provision is subject to the court's discretion. So the court will not grant an application where it deems it to be inappropriate. It will be for the prosecutor to make the case to the court. It is not as though the prosecutor has carte blanche in this situation.
I re-emphasise the fact that the court will have the discretion. If it thinks it inappropriate for the prosecutor to return to make the case on the basis of new evidence, it will be up to the court to determine that, not the prosecutor.
On Question, amendment agreed to
Lord Rooker moved Amendment 120C:
On Question, amendment agreed to.
[Amendment No. 121 not moved.]
Lord Rooker moved Amendment No. 121A:
On Question, amendment agreed to.
[Amendment No. 122 not moved.]
Lord Rooker moved Amendment No. 122A:
On Question, amendment agreed to.
Lord Rooker moved Amendment No. 122B:
On Question, amendment agreed to.
Clause 109, as amended, agreed to.
Clause 110 [Order made: reconsideration of available amount]:
Lord Rooker moved Amendment No. 122C:
On Question, amendment agreed to.
Lord Rooker moved Amendments Nos. 122D and 122E:
On Question, amendments agreed to.
Clause 110, as amended, agreed to.
Clause 118 [Appeal by prosecutor]:
[Amendments Nos. 123 to 126 not moved.]
Clause 122 [Conditions for exercise of powers]:
"(1) The court may—
(a) proceed under section 94 before it sentences the accused for the offence (or any of the offences concerned), or
(b) postpone proceedings under section 94 for a specified period.
(1A) A period of postponement may be extended."
Page 62, line 1, leave out subsection (6).
Page 64, line 38, leave out "sections 94(4) and 95 do" and insert "section 94(4) does"
Page 66, line 20, leave out "sections 94(4) and 95 do" and insert "section 94(4) does"
Page 67, line 12, at end insert—
"(aa) there is evidence which was not available to the prosecutor at the relevant time,"
Page 67, leave out line 15 and insert "relevant amount"
Page 67, line 18, leave out "on which his belief is based"
Page 67, line 40, leave out from first "the" to fourth "the" and insert "relevant amount"
Page 68, line 20, at end insert—
"(10A) The relevant time is—
(a) when the court calculated the accused's benefit for the purposes of the confiscation order, if this section has not applied previously;
(b) when the court last calculated the accused's benefit in pursuance of this section, if this section has applied previously.
(10B) The relevant amount is—
(a) the amount found as the accused's benefit for the purposes of the confiscation order, if this section has not applied previously;
(b) the amount last found as the accused's benefit in pursuance of this section, if this section has applied previously."
5 p.m.
Page 68, line 34, leave out from third "the" to fourth "the" on line 35 and insert "relevant amount"
Page 68, line 39, leave out "(when the confiscation order was made)"
Page 69, line 8, at end insert—
"(7) The relevant amount is—
(a) the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;
(b) the amount last found as the available amount in pursuance of this section, if this section has applied previously.
(8) The amount found as the accused's benefit from the conduct concerned is—
(a) the amount so found when the confiscation order was made, or
(b) if one or more new calculations of the accused's benefit have been made under section 109 the amount found on the occasion of the last such calculation."
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