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Lord Falconer of Thoroton: My Lords, we are opposed to the amendments in this group for the cogent reasons which my noble friend Lord Rooker expounded in Committee.
Restraint and receivership have always been treated as ancillary to a criminal proceeding. As a result, the criminal rules on compensation apply. That is to say, compensation is payable only where there is a serious default on the part of the enforcement authorities. It is interesting to note that that has always been the case even though restraint and receivership are currently
High Court functions and thus technically civil. Now that those proceedings are being transferred to the Crown Court, the case for applying the criminal rule is stronger than ever.It is also interesting to note that the courts have recently endorsed that approach in the case of Hughes and Another and R and Another, which was decided by the Court of Appeal at the end of last month. That case dealt with the issue of whether it was compatible with the European Convention on Human Rights that receivers should be able to pay their expenses out of the assets which they were managing. Lord Justice Simon Brown acknowledged that an acquitted or unconvicted defendant had for those purposes to be treated as an innocent person, but he did not accept that, for that reason, it had to be regarded as disproportionate to leave the defendant against whom restraint and receivership orders had been made uncompensated for such loss as they might have caused him.
He held that because acquitted defendants are not generally entitled to compensation for deprivation of liberty or other loss suffered through prosecution, they should not be entitled to compensation for loss suffered through restraint and receivership action. He stated
- "In my judgement it is no more unfair, disproportionate or arbitrary that they should be uncompensated too for any adverse effects that restraint and receivership orders may have had upon their assets".
This Government have no intention of paying compensation to persons affected by the lawful exercise by the law enforcement authorities of their statutory responsibilities. We have serious concerns as to the potential implications of the amendments for the operation of the criminal justice system in general. If compensation was payable whenever the authorities started a criminal investigation or proceedings and then failed to secure a conviction, it would not be long before the criminal justice system ground to a halt.
As regards the specific point made by the noble Lord, Lord Goodhart, compensation is available only where a confiscation order made in absentia against an absconder is varied or discharged under Clause 73. In the light of those comments, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Goodhart: My Lords, in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 75 [Criminal lifestyle]:
Lord Goodhart moved Amendment No. 30:
- Page 48, line 18, after "concerned" insert "is an offence punishable by imprisonment and"
6.18 p.m.
On Question, Whether the said amendment (No. 30) shall be agreed to?
Their Lordships divided: Contents, 114; Not-Contents, 122.
Addington, L.
Alexander of Weedon, L.
Allenby of Megiddo, V.
Attlee, E.
Avebury, L.
Beaumont of Whitley, L.
Blatch, B.
Boardman, L.
Brabazon of Tara, L.
Brigstocke, B.
Brooke of Sutton Mandeville, L.
Burnham, L.
Buscombe, B.
Byford, B.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Crickhowell, L.
Dean of Harptree, L.
Deedes, L.
Denham, L.
Dixon-Smith, L.
Elton, L.
Flather, B.
Forsyth of Drumlean, L.
Fraser of Carmyllie, L.
Gardner of Parkes, B.
Geddes, L.
Goodhart, L. [Teller]
Goschen, V.
Gray of Contin, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Holderness, L.
Home, E.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Kimball, L.
Kingsland, L.
Lamont of Lerwick, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
McNally, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Murton of Lindisfarne, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Park of Monmouth, B.
Parkinson, L.
Pearson of Rannoch, L.
Razzall, L.
Redesdale, L.
Rees, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Rotherwick, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Sharman, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Stern, B.
Strathclyde, L.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gwydir, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Vivian, L.
Waddington, L.
Wallace of Saltaire, L.
Walmsley, B.
Weatherill, L.
Wilcox, B.
Williams of Crosby, B.
Willoughby de Broke, L.
Acton, L.
Ahmed, L.
Alli, L.
Alton of Liverpool, L.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Craig of Radley, L.
Crawley, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fyfe of Fairfield, L.
Gale, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B.
Jones, L.
Judd, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mishcon, L.
Mitchell, L.
Morgan, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Nicol, B.
Orme, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Radice, L.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Rooker, L.
Sainsbury of Turville, L.
Serota, B.
Sheldon, L.
Simon, V.
Simon of Highbury, L.
Smith of Leigh, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Varley, L.
Walker of Doncaster, L.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
6.28 p.m.
Lord Goldsmith moved Amendment No. 31:
- Page 48, line 22, at end insert "and the defendant has benefited from the conduct which constitutes the offence"
The noble and learned Lord said: My Lords, these government amendments—one group of which discharges an undertaking that I gave in Committee—make detailed but worthwhile changes to the criminal lifestyle regime. Amendments Nos. 31, 59 and 85 make it clear that a defendant who commits an offence lasting six months or more must have benefited from the offence to be treated as having a criminal lifestyle.
The six-month test is currently inconsistent with the other criminal lifestyle tests. In theory, it is possible for a person who commits an offence lasting six months or more to be treated as having a criminal lifestyle for the purposes of the Bill, even if there is no acquisitive element to the offence.
The principle underlying the Bill, however, is that a criminal lifestyle is a lifestyle of acquisitive crime. All the other criminal lifestyle tests either require explicitly that the defendant shall have benefited from the offences of which he or she has been convicted, or those offences are inherently acquisitive. We believe that it would be sensible to bring the six-month test in line and, in so doing, to correct an unnecessary anomaly.
Amendments Nos. 34, 62 and 86 bring us to the subject of terrorism. As some of your Lordships may recall, we made it clear in Committee that we did not think terrorist fund-raising offences should be defined as criminal lifestyle offences, because they were not normally indicative of a lifestyle of acquisitive criminality. While we must remain alert to the need to take any possible action against terrorism, that should not be at the expense of undermining the fundamental policy of the Bill.
However, as I explained in Committee, we have considered whether other terrorist offences might be specified. As your Lordships can see, we have reached the conclusion that those convicted of the offence of directing a terrorist organisation should be treated under the Bill as having a criminal lifestyle.
The offence has been selected after careful thought and consultation with the relevant enforcement authorities. The overwhelming majority of those convicted of this offence in the United Kingdom will have been involved in Northern Irish terrorism. With that in mind, we are satisfied that the offence falls within the concept of a criminal lifestyle offence, as understood by the Bill. It will be reasonable to assume that those convicted of the offence will normally have been involved in acquisitive crime for their own benefit. It is proposed, therefore, to add this offence to the list.
I hope, and am confident, that your Lordships will find both sets of amendments to the criminal lifestyle regime sensible. I commend them to the House, and beg to move.
On Question, amendment agreed to.
[Amendments Nos. 32 and 33 not moved.]
Schedule 2 [Lifestyle offences]:
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