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On Question, amendments agreed to.
[Amendment No. 168 not moved.]
Lord Rooker moved Amendment No. 169:
The noble Lord said: I beg to move.
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): I must inform the Committee that there is a mistake in the Marshalled List. Amendment No. 169 should read as follows:
On Question, amendment agreed to.
Lord Rooker moved Amendment No. 170:
On Question, amendment agreed to.
Clause 177, as amended, agreed to.
Clause 178 [Order made: reconsideration of available amount]:
Lord Rooker moved Amendments Nos. 171 to 173:
On Question, amendments agreed to.
Clause 178, as amended, agreed to.
Clause 183 [Defendant convicted or committed]:
[Amendment No. 174 not moved.]
Clause 184 [Defendant neither convicted nor acquitted]:
[Amendment No. 175 not moved.]
Clauses 185 and 186 agreed to.
Clause 187 [Appeal by prosecutor or Director]:
[Amendments Nos. 176 and 177 not moved.]
Clause 188 [Court's powers on appeal]:
Lord Rooker moved Amendment No. 178:
On Question, amendment agreed to.
Clause 188, as amended, agreed to.
Clause 189 [Appeal to House of Lords]:
Lord Rooker moved Amendment No. 179:
On Question, amendment agreed to.
Clause 189, as amended, agreed to.
Clause 195 [Conditions for exercise of powers]:
Lord Rooker moved Amendments Nos. 180 and 181:
On Question, amendments agreed to.
Clause 195, as amended, agreed to.
Clause 196 [Restraint orders]:
[Amendments Nos. 182 to 184 not moved.]
Clause 212 [Restraint orders]:
Lord Bassam of Brighton moved Amendment No. 185:
The noble Lord said: This is a purely technical amendment which brings the wording of Clause 212(5) into line with that of Clause 58(6). I beg to move.
On Question, amendment agreed to.
Clause 212, as amended, agreed to.
Clause 222 [Applications and appeals]:
Lord Rooker moved Amendments Nos. 186 to 189:
Page 135, line 23, leave out "is authorised to do so by" and insert "falls within subsection (2A).
On Question, amendments agreed to.
Clause 222, as amended, agreed to.
Clause 224 [Committal by magistrates' court]:
[Amendment No. 190 not moved.]
[Amendments Nos. 191 and 192 not moved.]
Clause 227 [Order varied or discharged]:
[Amendment No. 193 not moved.]
Clause 229 [Criminal lifestyle]:
[Amendment No. 194 not moved.]
Lord Rooker moved Amendment No. 194A:
On Question, amendment agreed to.
[Amendments Nos. 195 to 199 not moved.]
Lord Rooker moved Amendment No. 199A:
On Question, amendment agreed to.
[Amendment No. 200 not moved.]
Clause 229, as amended, agreed to.
Lord Rooker moved Amendment No. 200A:
"(aa) there is evidence which was not available to the prosecutor or the Director at the relevant time,"
Page 107, line 13, leave out from first "the" to end of line and insert "relevant amount"
Page 107, line 16, leave out "on which his belief is based"
Page 107, line 42, leave out from first "the" to end of line 43 and insert "relevant amount"
"Page 107, line 42, leave out from 'the' to 'the' in line 43 and insert 'relevant amount'
Page 108, line 25, at end insert—
"(11A) The relevant time is—
(a) when the court calculated the defendant's benefit for the purposes of the confiscation order, if this section has not applied previously;
(b) when the court last calculated the defendant's benefit in pursuance of this section, if this section has applied previously.
(11B) The relevant amount is—
(a) the amount found as the defendant's benefit for the purposes of the confiscation order, if this section has not applied previously;
(b) the amount last found as the defendant's benefit in pursuance of this section, if this section has applied previously."
Page 108, line 43, leave out from third "the" to fourth "the" in line 44 and insert "relevant amount"
Page 109, line 2, leave out "(when the confiscation order was made)"
Page 109, line 18, at end insert—
"(7A) 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.
(7B) The amount found as the defendant'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 defendant's benefit have been made under section 177 the amount found on the occasion of the last such calculation."
Page 114, line 30, leave out paragraph (b).
Page 115, line 44, leave out paragraph (b).
Page 119, line 38, leave out from first "the" to end of line 39 and insert "relevant amount (as defined in that section)"
Page 120, line 1, leave out from first "the" to end of line 2 and insert "relevant amount (as defined in that section)"
Page 131, line 4, leave out from "appointed" to end of line 5 and insert "in respect of the property under section 202, 204 or 206"
(2A) An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following—"
Page 135, line 26, leave out "or"
Page 135, line 33, leave out "is authorised as mentioned in subsection (2)" and insert "falls within subsection (2A)"
Page 135, line 41, leave out "is authorised as mentioned in subsection (2)" and insert "falls within subsection (2A)"
Page 139, line 34, leave out paragraphs (a) to (c) and insert—
"(a) it is specified in Schedule (Lifestyle offences: Northern Ireland);"
Page 140, line 4, at end insert—
"(4) The Secretary of State may by order amend Schedule (Lifestyle offences: Northern Ireland)."
Before Schedule 3, insert the following new schedule—
1 (1) An offence under any of the following provisions of the Misuse of Drugs Act 1971 (c. 38)—
(a) section 4(2) or (3) (unlawful production or supply of controlled drugs);
(b) section 5(3) (possession of controlled drug with intent to supply);
(c) section 8 (permitting certain activities relating to controlled drugs);
(d) section 20 (assisting in or inducing the commission outside the UK of an offence punishable under a corresponding law).
(2) An offence under any of the following provisions of the Customs and Excise Management Act 1979 (c. 2) if it is committed in connection with a prohibition or restriction on importation or exportation which has effect by virtue of section 3 of the Misuse of Drugs Act 1971 (c. 38)—
(a) section 50(2) or (3) (improper importation of goods);
(b) section 68(2) (exportation of prohibited or restricted goods);
(c) section 170 (fraudulent evasion).
(3) An offence under either of the following provisions of the Criminal Justice (International Co-operation) Act 1990 (c. 5)—
(a) section 12 (manufacture or supply of a substance for the time being specified in Schedule 2 to that Act);
(b) section 19 (using a ship for illicit traffic in controlled drugs).
2 An offence under either of the following provisions of this Act—
(a) section 327 (concealing etc. criminal property);
(b) section 328 (assisting another to retain criminal property).
3 An offence under section 25(1) of the Immigration Act 1971 (c. 77) (assisting illegal entry etc.).
4 (1) An offence under either of the following provisions of the Customs and Excise Management Act 1979 (c. 2) if it is committed in connection with a firearm or ammunition—
(a) section 68(2) (exportation of prohibited goods);
(b) section 170 (fraudulent evasion).
(2) An offence under Article 4(1) of the Firearms (Northern Ireland) Order 1981 (S.I. 1981/155 (N.I. 2) (dealing in firearms or ammunition by way of trade or business).
(3) In this paragraph "firearm" and "ammunition" have the same meanings as in Article 2(2) of that Order.
5 An offence under any of the following provisions of the Forgery and Counterfeiting Act 1981 (c. 45)—
(a) section 14 (making counterfeit notes or coins);
(b) section 15 (passing etc counterfeit notes or coins);
(c) section 16 (having counterfeit notes or coins);
(d) section 17 (making or possessing materials or equipment for counterfeiting).
6 (1) An offence under any of the following provisions of the Copyright, Designs and Patents Act 1988 (c. 48)—
(a) section 107(1) (making or dealing in an article which infringes copyright);
(b) section 107(2) (making or possessing an article designed or adapted for making a copy of a copyright work);
(c) section 198(1) (making or dealing in an illicit recording);
(d) section 297A (making or dealing in unauthorised decoders).
(2) An offence under section 92(1), (2) or (3) of the Trade Marks Act 1994 (c. 26) (unauthorised use etc of trade mark).
7 (1) An offence under any of the following provisions of the Criminal Law Amendment Act 1885 (c. 69)—
(a) section 2 (procuring a woman or girl);
(b) section 3 (procuring a woman or girl by threats or false pretences);
(c) section 8 (detaining a woman in a brothel);
(d) section 13(3) (letting premises for use as a brothel).
(2) An offence under section 1(1) of the Vagrancy Act 1898 (c. 39) (man living on the earnings of prostitution).
(3) An offence under that Act as extended by section 7(4) of the Criminal Law Amendment Act 1912 (c. 20) (woman exercising control over prostitute).
(4) An offence under section 21 of the Children and Young Persons Act (Northern Ireland) 1968 (c. 34) (causing or encouraging prostitution etc of girl under 17).
(5) An offence under Article 8 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19)) (living on the earnings of male prostitute).
(6) An offence under Article 122(1)(b) or (c) of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (procuring or causing prostitution by woman suffering from severe mental handicap).
(7) An offence of keeping a bawdy house.
8 An offence under section 20 of the Theft Act (Northern Ireland) 1969 (c. 16) (blackmail).
9 (1) An offence of attempting, conspiring or inciting the commission of an offence specified in this Schedule.
(2) An offence of aiding, abetting, counselling or procuring the commission of such an offence."
On Question, amendment agreed to.
Clauses 230 and 231 agreed to.
Clause 232 [Gifts and their recipients]:
[Amendment No. 201 not moved.]
Clause 238 [Property: general provisions]:
[Amendments Nos. 202 and 203 not moved.]
Clause 248 [General purpose of this Part]:
5.45 p.m.
Lord Goodhart moved Amendment No. 204:
- Page 147, line 32, leave out from "proceedings" to end of line 33.
The noble Lord said: I had to watch myself carefully to make sure that I did not say "not moved" on this occasion. This amendment is a landmark for two reasons. First, it is the first occasion for what seems to me about an hour and a half—it must seem a good deal longer than that to the Deputy Chairmen of Committees—on which we are having a substantive debate on an amendment. Secondly, and rather more importantly, this is the first occasion on which we are debating an amendment to Part 5. Part 5 is a highly important part of the Bill which, unlike Parts 2, 3 and 4, is not foreshadowed by existing legislation.
In moving Amendment No. 204, I wish to speak also to Amendments Nos. 224A, 233 to 236, 237 to 251, 252, 253 and 254 which are grouped with it. The purpose of this group of amendments is to ensure that there is a single mechanism for the recovery of property which is obtained by unlawful conduct. Under the Bill there are two entirely different procedures. One applies to property other than cash, or property which includes cash but does not consist solely of cash, in which forfeiture will take place via a recovery order in the High Court or the Court of Session. The second kind of procedure applies where the property which is to be forfeited consists solely of cash. In such a case forfeiture will take place by means of an order made in England, Wales and Northern Ireland by a magistrates' court or in Scotland by a sheriff.
There seems to me no logic in having those two separate procedures. Under the present law there is power in some cases relating to money which is suspected of being used in drug or terrorist offences to seize and forfeit cash. But there is no power—until this Bill comes into force—to make a civil recovery order in the High Court or the Court of Session. It seems to me that once the High Court or the Court of Session has been given power to make a recovery order that power should apply to all recoverable property. It seems to me that to make a forfeiture order of this kind is not appropriate for magistrates although I recognise that at present in certain circumstances that can be done.
The forfeiture orders will apply to large sums of money. As I understand it, the Government are likely to make regulations which will ensure that forfeiture orders are not sought for cash sums of less than £10,000. Difficult issues may arise. I think that all of us would agree that this is not by any means an easy Bill; it is an extremely lengthy and complicated one. I believe that it will raise issues which are better dealt with by a higher court than the magistrates' court. The High Court or the Court of Session will have the necessary expertise.
I accept that a power to order the seizure of cash, as opposed to its ultimate forfeiture, can properly be left with justices of the peace. An order for seizure is not a final order. I accept fully that speed is of the essence and that it may be quicker to get a seizure order from a justice of the peace than to seek an order from the High Court. However, I believe that forfeiture of cash should be dealt with by the same method as forfeiture of other assets. I can see no possible logical distinction for forfeiting cash by one method and forfeiting, let us say, the contents of a bank account by another method. If the High Court order is the right method of forfeiting money which is sitting in a bank account, it seems to me that it is still the right method if the respondent takes the cash out of the bank account in £50 notes. For the purpose of achieving a logical and simple system I believe that it would be very much preferable to have a consistent procedure that applies to all forfeiture in civil actions. I beg to move.
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