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Lord Falconer of Thoroton: My Lords, I would feel uneasy about committing myself to that now. It may be best to write to the noble Lord on the matter before Third Reading so that he can consider the position before then.
Lord Kingsland: My Lords, I am entirely happy with that suggestion by the noble and learned Lord the Minister. My concern is that, if he wishes to go beyond the confines of the speech of the noble Lord, Lord Rooker, in my respectful submission, your Lordships' House should be told about it. I see the noble and learned Lord nodding. In those circumstances, I beg leave to withdraw the amendment. No doubt we shall consider the matter again at Third Reading.
Amendment, by leave, withdrawn.
Clause 32 [Court's powers on appeal]:
Clause 33 [Appeal to House of Lords]:
Lord Goodhart moved Amendment No. 24:
- Page 29, line 4, at end insert—
On Question, amendment agreed to.
Baroness Buscombe moved Amendment No. 25:
The noble Baroness said: My Lords, I must, first, apologise to the noble Lords, Lord Goodhart and Lord Thomas of Gresford, who tabled this amendment in Committee. I hope that they will forgive me for this plagiarism and bear in mind that imitation is the sincerest form of flattery.
The amendment relates to restraint orders under Clause 41. A restraint order will prohibit a person from dealing with any realisable property held by him in a way that will preserve that property pending some further order. There is a very low threshold for a restraint order. It need only be shown that a criminal
There may, however, be exceptions to a restraint order, and specific exceptions are referred to in subsection (3). One of those exceptions is that the restraint order may provide for reasonable living expenses. However, subsection (4) provides that an exception to a restraint order must not provide for any legal expenses relating to the offences referred to in subsection (5), which are incurred by the defendant, or by the recipient of a tainted gift. The offences referred to in subsection (5) are entirely general.
We on these Benches are concerned that those two subsections will limit the quality of the legal representation available to a defendant. Although Criminal Defence Service funding is available to all criminal defendants, such funding is limited and may not be appropriate to the seriousness or complexity of the case against the defendant. It may be limited to junior counsel when a silk would be appropriate.
If a defendant cannot use any of his realisable assets to fund what he perceives to be the right level of legal representation, it is certain that he will feel that an injustice has been done, and there is a real possibility that that will, in fact, be the case. The most important person in any trial is the losing party and he must believe that he has been given a fair trial. If he cannot even use his own assets to oppose a restraint order, he will, quite rightly, feel that he has not been given a fair trial. I beg to move.
Lord Goodhart: My Lords, my noble friend Lord Thomas of Gresford and I put our names to this amendment, and we are happy to support it. It certainly seems to me that it is not justifiable at the stage when a restraint order is made, and when it is plainly uncertain whether a confiscation order will be made or how far it will extend, to deprive the defendant of the right to use the money that is subject to a restraint order on proper legal expenses. Of course, there are perfectly well exercisable methods by which one can prevent those costs being unreasonable.
If there were no limit on the costs, I accept that it would be possible for them to be inflated artificially and ultimately used for the benefit of the defendant. But provided that the costs are kept within the normal limits of tax costs, I do not see why they should not be payable out of the property, subject to the restraint order.
I shall add one point of detail. If a confiscation order is made but does not extend to the whole of the defendant's property—that is not infrequently likely to be the case—plainly, the costs will be borne by the defendant if he pays them himself because no order has been made for payment of his costs by the
Lord Falconer of Thoroton: My Lords, it may be of assistance if I were to set out how the position has changed during the Bill's passage through both Houses. Before charge, the defendant must use his own unrestrained assets first and may then apply for civil public funding. After charge, the defendant will be entitled to criminal public funding regardless of his means. That will cover all the related restraint and confiscation proceedings. The recipient of a tainted gift from the defendant must use his own unrestrained assets at all times and may then apply for civil public funding. Other third parties—persons who are not recipients of a tainted gift but who hold an interest in property also held by the defendant—may still have funds released by the court for their legal expenses and may also obtain civil public funding when they have exhausted their own assets.
In effect, the essence of the amendments is that we should be able to use restrained assets to fund the relevant proceedings, whereas what is proposed if all the assets are restrained is that legal aid will be made available. The essence of the point raised by the noble Baroness, Lady Buscombe, is that defendants will not get the legal representation they want if it is paid for by the state as opposed to being paid for out of their own assets. It has always been a principle that the quality of legal advice should not depend upon who is paying for it. Our proposal seems to be a sensible way to ensure that huge amounts of costs are not incurred on legal proceedings. A Rolls Royce service may not be in the public interest; a reasonable service might be. In those circumstances we believe that the solution we propose is fair and sensible. I invite the noble Baroness to withdraw her amendment.
Baroness Buscombe: My Lords, I thank the Minister for his response, which was a predictable repetition of the response we received in Committee. That is disappointing. We believe that the Government run the risk of defendants feeling that they have not had a fair "outing" because they are being constrained by the Bill in terms of the quality of the legal advice which they will receive. I do not want to press the House on this amendment. However, we would ask the Government to reconsider the matter before Third Reading. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 [Appeal to Court of Appeal]:
Lord Falconer of Thoroton moved Amendment No. 27:
The noble and learned Lord said: My Lords, the amendments in this group are minor technical amendments. The main purpose of Clause 47 is to
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 28:
On Question, amendment agreed to.
Lord Goodhart moved Amendment No. 29:
The noble Lord said: My Lords, Amendment No. 29 requires a court to consider the payment of compensation where a restraint order is varied or discharged. We have debated the general principle of compensation for loss suffered by an innocent third party as a result of government action against a creditor, and I shall not repeat that argument.
However, I want to raise briefly a particular point. Compensation is provided for under the Bill where the confiscation order is varied or discharged. Why therefore is it not where a restraint order is made, varied or discharged without the case having proceeded to the making of a confiscation order? Surely, the arguments here are just as strong. I beg to move.
"( ) make provision for the payment of debts of the specified person incurred for full consideration before the restraint order was made;".
Page 29, line 6, leave out subsections (4) and (5).
Page 31, line 13, leave out from first "The" to end of line and insert "registration Acts"
Page 31, line 18, at end insert—
"(1A) The registration Acts are—
(a) the Land Registration Act 1925 (c.21);
(b) the Land Charges Act 1972 (c.61);
(c) the Land Registration Act 2002 (c.9).
(1B) But no notice may be entered in the register of title under the Land Registration Act 2002 in respect of a restraint order."
After Clause 47, insert the following new clause—
"ORDER VARIED OR DISCHARGED
(1) This section applies if—
(a) the court varies or discharges a restraint order under section 42 otherwise than in consequence of the making of a confiscation order in the same proceedings; and
(b) an application is made to the court by a person who held realisable property and has suffered loss as a result of the making of the order.
(2) The court may order the payment to the applicant of such payment as it believes is just.
(3) Compensation payable under this section is payable by the Lord Chancellor."
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