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Lord Goodhart: My Lords, I am less than fully satisfied by the answer of the noble and learned Lord. The issues that are raised in this regard go somewhat deeper than he suggested. In principle, I would have wished to press this point. However, I recognise that one has to be somewhat selective about the issues that one chooses to fight to a finish in your Lordships' House. This issue, I am afraid, is not one of them. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Appeal by prosecutor or Director]:

Lord Kingsland moved Amendment No. 21:

Leave out Clause 31.

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 22 and 23.

This matter was dealt with in Committee on 22nd April 2002 at cols. 101 to 103 of Hansard. I can deal with the matter fairly concisely by a process of selective quotation, which will of course be totally fair and balanced.

The two key parts of the Bill are Clause 32(2) and Clause 33(4). Clause 32(2) states:

"On an appeal under section 31(2) the Court of Appeal may confirm the decision, or if it believes the decision was wrong it may ... itself proceed under section 6 . . . or . . . direct the Crown Court to proceed afresh under section 6".

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That is at the Court of Appeal stage. The stage involving the Judicial Committee of your Lordships' House is dealt with in Clause 33(4). It states:

"On an appeal from a decision of the Court of Appeal to confirm the decision of the Crown Court not to make a confiscation order or from a decision of the Court of Appeal to quash a confiscation order the House of Lords may ... confirm the decision, or ... direct the Crown Court to proceed afresh under section 6 if it believes the decision was wrong".

Subsection (5) states:

"In proceeding afresh in pursuance of this section the Crown Court must comply with any directions the House of Lords may make".

My observation on those two clauses at the Committee stage was that the individual who is the subject of the confiscation order has to go through no less than three stages as first instance hearings with, so far as I can see, the prospect of having to face, at each level, fresh injections of evidence by the prosecution or the director.

In dealing with my submissions, the noble Lord, Lord Rooker, said, inter alia:

"The appeal is, of course, concerned . . . not with the verdict of the jury or any matter underlying the conviction which preceded the confiscation hearing".

I entirely accept that. He then went on to discuss the purpose of the measures. He said:

"The purpose of this appeal is to deal with errors or law; for example, the sort of case where the court refuses to comply with a clear statutory requirement, not least the requirement to go through the confiscation procedures. Such instances are, regrettably, not unknown".

I should be most interested, incidentally, to hear whether the noble and learned Lord the Minister can cite any such instances. However, that is not germane to the point that I want to make which is that this issue is purely a matter of judicial review. The only expressed concern about the legal aspects of proceedings in the Crown Court or Court of Appeal is whether there has been an error of law. Surely that can be dealt with by constraining the appeal procedure to precisely that consideration.

The only other purpose identified by the noble Lord, Lord Rooker, that the appeal clauses should perform features in the next paragraph of his speech. He said:

"The appeal also covers factual mistakes such as adding up the benefit incorrectly or failing to take an item of property into account as realisable property which should be taken into account. The right of appeal is unlikely to be used frequently but we expect it to function as a valuable quality control mechanism in confiscation proceedings".—[Official Report, 22/4/02; col. 102.]

Once again, that is an extremely limited purpose, if that is, indeed, the purpose of the clauses.

If we are talking only about, first, judicial review and, secondly, factual error, surely that could be dealt with by a much more constrained text than the very broad text with which we are presented in the draft. I beg to move.

Lord Lloyd of Berwick: My Lords, I want to raise a point on Clause 33, which does not arise directly in

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relation to the amendment moved by the noble Lord. It is a question that has just occurred to me. Clause 33(1) appears to give an appeal as of right,

"to the House of Lords from a decision of the Court of Appeal".

I do not know whether that is the intention; if so, it would be the only such appeal of which I know. Surely the clause should say, "An appeal lies to the House of Lords with leave of the Court of Appeal or with leave of the House of Lords". Perhaps the Minister will consider that and deal with it if necessary.

Lord Falconer of Thoroton: My Lords, somehow, I was warned that this question was coming and I have been briefed on it. I shall deal with that point first. So uncertain of me are my officials that they have handed me a second copy of the note that sets out the position on this matter.

Clauses 89 and 90 deal respectively with the,

"Procedure on appeal to the Court of Appeal",

and with the Judicial Committee of your Lordships' House. Clause 89(1) states:

"An appeal to the Court of Appeal . . . lies only with the leave of that Court".

The noble and learned Lord, Lord Lloyd of Berwick, asked: why is there no similar provision? He referred back to Clauses 32 or 33 but the point arises precisely in respect of Clause 90; that is, why does not Clause 90 state that an appeal lies only with your Lordships' House with its leave? The answer is that leave to appeal to your Lordships' House may be granted either by this House or by the Court of Appeal. The procedure is accordingly more complex than that involved in appealing to the Court of Appeal. Clauses 89 and 90 contain an order-making power that specifically covers procedural issues. I make it clear that the order under Clause 90 will cover leave to appeal to the Judicial Committee of this House and therefore that the absence of a reference to the subject in Clause 90 is no cause for concern. In other words, we will use the order-making power to make sure that leave is required before an appeal is made to the Judicial Committee of this House. I am sorry that I took so long to get to that point.

I return to the points raised by the noble Lord, Lord Kingsland. He rightly accepts that we are not overturning juries' verdicts in this regard. As he said, the right of appeal is directed solely against errors of law and those made by judges. It is designed to redress the regrettable but inevitable fact that in any system of law, the courts have occasionally shown themselves capable of making irrational and perverse decisions in confiscation hearings. There is currently no remedy against such errors but there should be. It is precisely because such aberrations are rare that we do not expect the new right of appeal to be used frequently. Nevertheless, it will be an important quality control mechanism in confiscation proceedings, and it has been welcomed widely.

The noble Lord raised the concern that one person could be the subject of confiscation proceedings three times. He said that such proceedings would take place: first, in the Crown Court; secondly, in the Court of

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Appeal—with the court either hearing the case itself or directing it back to the Crown Court; and, thirdly, the House of Lords, which, because it cannot deal with the matter itself, would direct it back to the Crown Court. The error in that proposition is that the Court of Appeal and the House of Lords will not direct two hearings. In practice, if the Court of Appeal made an order and there was then an appeal to the House of Lords, between them, the Court of Appeal and the House of Lords could only ever order one rehearing.

However, it is unlikely that, in practice, there would ever be more than one confiscation hearing. I say that because the Court of Appeal will have the power only to hold a rehearing or direct the Crown Court to proceed afresh where the Crown Court has not made a confiscation order. In practice, the only circumstance in which the Crown Court is likely not to have made a confiscation order is where it has refused to hold a confiscation hearing in the first place.

The noble Lord, Lord Kingsland, also suggested that there was no precedent for the powers either in United Kingdom law or in the laws of continental Europe. I am not sure whether he intends to proceed with that point. If he does, a 1993 report by the Royal Commission on Criminal Justice entitled, Criminal Justice Systems in Other Countries, states that there are prosecutors' rights of appeal in the Netherlands and Italy. We are also aware of prosecutors' rights of appeal on a point of law against an acquittal in some other common law jurisdictions.

I believe that that deals with all the points raised by the noble Lord, Lord Kingsland. In the light of what I have said, I very much hope that, first, he will see the importance of the provision; secondly, he will see that he is wrong in relation to the issue of the three hearings; and, thirdly, in those circumstances, he will withdraw the amendment.

6 p.m.

Lord Kingsland: My Lords, the noble and learned Lord rightly indicated to your Lordships that I had said that I accepted that these measures were not connected with jury trial. However, I should not like the noble and learned Lord to think that I accepted the content of the latter part of the speech of the noble Lord, Lord Rooker, given on a previous occasion. The noble and learned Lord draws a number of parallels with the report of Sir Robin Auld. I must confess that I find some of Sir Robin's recommendations highly controversial.

However, so far as concerns the clauses at issue, and in response to the noble and learned Lord the Minister, I want to refer him again to Clauses 32(2) and 33(4). The final words of Clause 32(2) state:

"or ... direct the Crown Court to proceed afresh under section 6".

Clause 33(4) includes the words,

"direct the Crown Court to proceed afresh under section 6 if it believes the decision was wrong".

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If it believes that the decision was wrong, it can refer to a whole range of considerations which go way beyond the two examples given by the noble Lord, Lord Rooker—which are judicial review or factual inaccuracy on the face of the record.

If these clauses are concerned only with judicial review and factual errors on the face of the record, and if the noble and learned Lord is prepared to accept that at the Dispatch Box, then I shall happily withdraw the amendment. But if the noble and learned Lord is not prepared to accept that, it suggests that a whole range of other issues may fall within the terms of the clause about which your Lordships have not been told. Therefore, I wonder whether the noble and learned Lord is prepared to stand up and say that the two examples given by the noble Lord, Lord Rooker, are the only matters to which these clauses are intended to refer.

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