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Lord Falconer of Thoroton: My Lords, we have considered carefully the issues put persuasively by the noble Lord, Lord Goodhart, but we believe there is nothing in the point. As the noble Lord knows, for the purposes of the Bill, "criminal lifestyle" is defined not in the Oxford English Dictionary but in the Bill itself, in particular in Clauses 76 and 226, which states:

which is that it is an offence of a particular type, or a number of offences committed over a period of time. There is no difficulty in understanding that, and there would be no difficulty in a court interpreting the definition in that way.

The noble Lord rightly refers to Clause 6, which states that the court must decide whether the defendant has a criminal lifestyle. However, Clause 89(3) defines a defendant as,

    "a person against whom proceedings for an offence have been started".

Schedule 1 to the Interpretation Act 1978 states that,

    "'Person' includes a body of persons corporate or unincorporate".

It follows, there being nothing in the context that suggests to the contrary, that references to the defendant in Clause 6 and elsewhere in the Bill already include bodies corporate.

I believe that the noble Lord and the Government are seeking the same end. We believe that the amendments would serve no useful purpose. Indeed, they would be damaging, because they would cast doubt on every instance in other legislation where a person is referred to. If we state explicitly that a person includes a corporation in the Bill, we will invite other statutes that use the term to be construed as referring only to a natural person.

I am afraid that for those reasons, while we share the aim, we are unable to support the amendments. I hope that having heard my explanation, the noble Lord will feel able to withdraw Amendment No. 2.

Lord Goodhart: My Lords, I do not believe for one moment that the amendment would cast any doubt on the general interpretation of the word "person". What is unusual here—and the reason the amendments were tabled—is the specific use of the word "lifestyle". That is where the difficulty arises.

However, I welcome the fact that the Government have made it clear that in their view there is no ambiguity. That statement may be relied on if, in a future case, it is argued before a court that there is an ambiguity. To that extent my purpose in bringing forward the amendments has been satisfied. In those

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circumstances, no useful purpose would be served by my taking the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 [Provision of information by accused]:

Lord Falconer of Thoroton moved Amendment No. 3:

    Page 66, line 8, at end insert—

"(3A) Subsection (3) does not affect any power of the court to deal with the accused in respect of a failure to comply with an order under this section."

On Question, amendment agreed to.

Clause 144 [Criminal lifestyle]:

[Amendment No. 4 not moved.]

Clause 171 [Provision of information by defendant]:

Lord Falconer of Thoroton moved Amendment No. 5:

    Page 106, line 26, at end insert—

"(4A) Subsection (4) does not affect any power of the court to deal with the defendant in respect of a failure to comply with an order under this section."

On Question, amendment agreed to.

Clause 226 [Criminal lifestyle]:

[Amendment No. 6 not moved.]

Clause 246 [Proceedings for recovery orders in England and Wales or Northern Ireland]:

4.45 p.m.

Lord Lloyd of Berwick moved Amendment No. 7:

    Page 150, line 32, at beginning insert "Subject to section 246A,"

The noble and learned Lord said: My Lords, the substantive amendment is Amendment No. 8, the next amendment on the Marshalled List.

The purpose of the amendment is to improve the Bill in two respects. First, it seeks to remove the risk of a serious injustice. It enables a man who has been accused of crime to defend himself in the normal way before a judge and jury. Secondly, it seeks to make Part 5 of the Bill less vulnerable to attack under the Human Rights Act. It is a waste of everyone's time to enact legislation which one can see will fall at the very first hurdle. It is surely wrong to wash one's hands of all responsibility for that result, as the Liberal Democrats, if I may respectfully say so, seemed inclined to do at Report stage by saying that it was better to leave the Government to stew in their own juice. That is not my phrase but that of the noble Lord, Lord Goodhart. Surely we can do better than that and seek to remove now the most obvious objections which will be raised under the Human Rights Act.

In returning to the first point, I shall not of course repeat the argument that I put forward on Report. That would be tedious and unnecessary. In a few moments I shall deal with the arguments put forward by the noble and learned Lord the Attorney-General by way of reply, but, first, it may be helpful to stand back a little from the Bill and take an overall view of what Part 5 seeks to achieve.

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The Bill itself deals with the proceeds of crime—and I emphasise that word at the outset. It is true that Part 5 refers to "unlawful conduct"—a somewhat woolly expression—but, fortunately, unlawful conduct is defined in Clause 244 as conduct which would be unlawful under our criminal law. So we can safely forget about unlawful conduct and talk simply about crime.

Under Clause 246, proceedings can be brought against anyone who holds what is called "recoverable property". Recoverable property means property obtained by a person through crime, whether his own crime or someone else's crime. That is the combined effect of Clauses 245 and 308. So unless a crime has been committed, and unless that crime has been proved, the judge simply has no power to make a recovery order. So far, all is clear and must be common ground.

Next, it may be helpful to follow the likely course of these so-called civil proceedings. I shall assume that they are being brought against the kind of person that the Government seem to have most in mind—that is, the major criminals who are at the centre of a criminal network but who are said to be untouchable by the criminal law. We are told that there are 400 such people known to the police. That number was often referred to in earlier stages of the Bill, both in this House and in the other place.

Let us assume that these proceedings are being brought against such a person and a claim form is duly served. What happens next? The first thing the defendant will do is to ask this simple question: "Through whose crime do you say these proceeds were obtained—my crime or someone else's crime—and what is the nature of the crime which you allege?" Unless the defendant gets an answer to those questions the civil proceedings will simply be struck out. The defendant is entitled to a fair trial in civil proceedings, just as he is entitled to a fair trial in criminal proceedings. No High Court judge of whom I have knowledge would allow civil proceedings to continue unless the crimes alleged are particularised. Again, that must be common ground.

Let us suppose that the allegation is that the proceeds were obtained through the defendant's own unlawful conduct—for example, by his dealing in drugs. Let us suppose next that the defendant denies the allegation, as he surely would. He might say, "You have got the wrong man". I have no idea what his defence may be, but, surely, if he denies that serious offence, he must as a matter of elementary justice be entitled to have that question decided on a criminal standard of proof by a judge and jury.

The noble and learned Lord the Attorney-General said that that would be a most unfortunate state of affairs. It would mean that a lot of criminals would escape. "We know who they are", he said. "It is plain from our intelligence". I am paraphrasing from the speech that the noble and learned Lord made on 25th June, col. 1270 of Hansard: "It is plain from their lifestyle, their luxury homes, their yachts and fast motor cars, which do not appear to have been acquired

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by any lawful activity on their part". He continued at col. 1271, "It is true that there is not enough evidence to convict them of specific crimes, but it is as plain as a pikestaff that their money has been acquired as the proceeds of crime".

I find that a most remarkable statement to have fallen from the lips of the noble and learned Lord. Those 400 people may indeed be the subject of grave suspicion on the part of the police, but happily we do not live in a police state. We shall not know those people to be criminals until they have been charged and convicted of a crime. Anyone familiar with the criminal courts will be able to tell noble Lords from their own experience about cases that seem as plain as a pikestaff to the police but that fell apart when they came to court. Then there are those unhappy cases that should have fallen apart but did not and instead have resulted in grave miscarriages of justice.

That is why we rightly insist on the higher standard of proof where the liberty of the subject is concerned—proof beyond reasonable doubt. Once we allow the civil burden of proof to intrude we shall conduct a grave disservice to the cause of justice.

The noble and learned Lord then says that none of that really matters because the proceedings are not aimed at an individual but aimed at his property. That is col. 1271. He is not being accused of anything; the proceedings will not result in a conviction; and in any event he cannot be sent to gaol. But I protest. He is being accused of something. He is being accused of drug dealing. Unless it is found "as a fact"—not my phrase but that of the noble and learned Lord—by the judge that he is guilty of drug dealing, the judge has no power to make a recovery order. The noble and learned Lord says that there is a distinction between being found guilty by the judge and being convicted. I venture to suggest that that is a distinction that would not be readily apparent to the defendant. It is certainly a distinction that is lost on me and appears to be lost to the editors of the Oxford English Dictionary.

Lastly, it is said that this amendment, if accepted, would be unfair. The noble and learned Lord said that the "little man" would be subjected to the full force of Part 5, but that the big wheel, suspected of far worse crimes—crimes that cannot be proved—would go scot-free. If the crimes cannot be proved, is there anything so surprising about the defendant going scot-free?

I shall summarise the first point—the second point is much shorter. A person who is accused of very serious crimes as part of the so-called civil proceedings is surely entitled to have the matter of his guilt decided by a judge and jury on the criminal standard. If he is acquitted, that should surely be the end of it. That is the purpose of the first five paragraphs of my amendment.

The second point is quite brief and is a Human Rights Act point. No doubt, when the legislation is in force it will be attacked under the Human Rights Act on numerous grounds. One ground stands out a mile. In a case where the alleged offender is before the court and is found guilty by the judge of a crime committed,

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let us say, 12 years ago, Part 5 allows the state to recover the proceeds of that crime from that day to this in a way that was not possible when the crime was committed. That is retrospective legislation of the most obnoxious kind and it is directly prohibited by Article 7 of the Human Rights Act. Nor shall a heavier penalty be imposed than the one that was applicable at the time that the criminal offence was committed.

It is said by the noble and learned Lord that a recovery order is not a penalty imposed for an offence, but that it is compensation claimed by the state for loss suffered by the state as a consequence of that offence. That is the plainest nonsense. The state has suffered no loss as a consequence of the offence and is not entitled to compensation. It is the victim, if anyone, who has suffered a loss and not the state.

That horse will not run. As it happens the horse ran in the case of Welch v. United Kingdom. It ran and it fell. That was the very point that was decided against the United Kingdom in Welch. It is true, as the noble and learned Lord will point out, that that was after a conviction. I hope that by now I have persuaded your Lordships that there is no distinction to be drawn between a conviction and a finding of guilt. That is certainly not a distinction that would find any favour at Strasbourg.

The purpose of the last paragraph of the amendment is simply to confine the retrospective effect of Part 5 to those cases where it has at least a chance of being upheld; that is to say, where the offender has not been before the court because he is overseas or because he is dead or in some other way unavailable. By confining the retrospective effect of Part 5, I suggest that this House will make a significant improvement to the Bill. In that spirit, I put forward this amendment as a compromise. It falls far short of what I would have wanted, but I put it forward as a form of compromise which I hope may still be accepted, although I have no strong expectation. I beg to move.

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