Proceeds of Crime Bill

Public Bill Committee, 27 November 2001.

Standing Committee B

Clause 20 - No order made: reconsideration of case

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I beg to move amendment No. 63, in page 11, line 17, after first `the', insert `investigating agencies or'.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to take the following amendments: No. 64, in clause 21, page 12, line 37, leave out from `Director' to `when' and insert

`or investigating agencies have evidence which was not available to them'.

No. 65, in clause 21, page 13, line 4, after first `the', insert `investigating agencies or'.

No. 106, in clause 90, page 54, line 22, at end insert—

`(2A) An investigating agency is any public authority within the meaning of section 6 of the Human Rights Act 1998 (c. 42) which conducts a criminal investigation within the meaning of subsection (2).'.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I have just stepped in to move the amendment on behalf of my hon. Friend the Member for Lewes (Norman Baker). We consider that it would strengthen the clause and make the final outcome clear. I should be grateful if the Minister would consider it seriously.

Bob Ainsworth (Labour, Coventry North East)

Amendment No. 63 would prevent clause 20 from being used when the investigating agencies, as defined under amendment No. 106, had evidence relevant to the confiscation proceedings that was not made available to the prosecutor at the original proceedings. Amendments Nos. 64 and 65 would do precisely the same in respect of clause 21, except that that clause covers evidence that was not available to the director as well as evidence that was not available to the prosecutor. Amendment No. 106 would define what constitutes an investigating agency.

Under the existing law, the criterion for the operation of such powers is whether there was evidence that was not available to prosecutor at the time of the original proceedings. It does not matter whether the investigating agency concerned had withheld evidence from the prosecutor at the time for whatever reason.

I cannot think of any reason why an investigating agency should deliberately wish to withhold evidence from the prosecutor or the director in order to prevent a confiscation order from being made. By its nature, an investigating agency will want to ensure not only that the defendant is convicted of his crimes but that all his assets acquired from crime are taken away from him at the same time.

On rare occasions, there may be cases when, through incompetence, evidence may not have been brought to the prosecutor's attention, but that is a different matter. It is not possible to legislate for incompetence. In any event, there must still be a strong case for arguing that a convicted person should not benefit from his crimes simply because the investigating authority was inefficient or incompetent.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I said initially that the amendment would strengthen the Bill. The Minister's words have confirmed that. It would not undermine the Bill. I am a little perplexed that he will not consider inserting the extra words.

Bob Ainsworth (Labour, Coventry North East)

The amendments would mean that where evidence has been withheld for whatever reason, the course cannot be followed. In circumstances in which evidence has been deliberately withheld—although I cannot envisage what those circumstances might be—it would also prevent compensation from being pursued where for reasons of oversight, inefficiency, or incompetence, evidence had not been disclosed to the prosecutor.

The hon. Lady may say that the amendments would effectively strengthen the clause, but that is a case that she will have to make. The consequence would be that, in such circumstances, confiscation would not be possible, and that is the reason for rejecting the amendments.

Under clauses 20 and 21, the court is not under any obligation to make a confiscation order, even if the prosecutor or the director produces evidence that should have been heard the first time round. Opposition Members have spoken on previous occasions about giving the court the discretion to exercise its judgment. This is precisely the sort of case when the court would want to consider whether it was fair to make an order. The amendments would deprive the court of the opportunity to do that, and for those reasons, I ask the Committee to reject them.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

Although I see the matter in slightly different terms from the Minister, I bow to his reassurances and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 84, in page 11, line 28, leave out subsection (3)(a).

Bill O'Brien (Labour, Normanton)

With this it will be convenient to take the following amendments: No. 85, in page 11, line 29, leave out `which constitutes offences.'.

No. 89, in clause 21, page 13, line 23, leave out subsection (7)(a).

No. 90, in clause 21, page 13, line 24, leave out `which constitutes offences'.

No. 92, in clause 22, page 14, line 30, leave out `which constitutes offences'.

Dominic Grieve (Conservative, Beaconsfield)

These are probing amendments, designed to elucidate what is intended in subsection (3). The clause concerns the reconsideration of a case in which no order has been made. This situation occurs when the director or prosecutor applies to the Crown court to reconsider the evidence and after considering that evidence believes that it is appropriate to proceed. Subsection (2) states:

``If this section applies the court must proceed under section 6''

and in those circumstances, subsections (3) to (8) apply.

In almost any circumstance, the defendant will have already been sentenced, whereas ordinarily a procedure for confiscation will take place prior to sentence.

Subsection (3)(a) states:

``section 6 has effect as if his particular criminal conduct included conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned''.

This is another clause that it is not always easy to get my brain around. In the general probing amendment, I have suggested first that we might leave out the whole of subsection (3)(a). Suppose we did that. What would happen? The alternative approach, as in amendment No. 85, is to leave out the words ``which constitutes offences''. Perhaps I can dwell on that in a little more detail.

Subsection (3)(a) says that criminal conduct includes

``conduct which constitutes offences which the court has taken into consideration in deciding his sentence for the offence or offences concerned''.

I cannot think of any criminal conduct that falls within the ambit of the Bill that does not constitute an offence, so why is the subsection included?

I appreciate that we are talking about the TIC provision—offences taken into consideration at the time of sentencing. Why is it necessary to spell that out in subsection (3)(a)? I would expect the court to have simply taken offences into account when it originally passed sentence. I do not think that there is any reason why clause 6 must have the effect that it has under subsection (3)(a). I am sure that the Minister will try to enlighten us.

This is a probing amendment. I appreciate that there may be a good reason for the inclusion of subsection (3)(a), but I was puzzled by the fact that it suggests the possibility of criminal conduct that does not constitute an offence. I also appreciate that the wording may be intended to describe an offence that has not been taken into consideration. I should be grateful if the Minister would clarify that point.

Amendments Nos. 85, 89, 90 and 92 are much of a muchness and relate to the same issue as it arises in subsequent clauses. Without more ado, I ask the Minister to clarify why the subsection has been included.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman tabled the amendments in order to explore the effect of clauses 20(3)(a) and 21(7)(a). The clauses make it clear that when a court has taken offences into consideration for sentencing, and is considering a defendant's benefit from criminal conduct at a revaluation hearing, it must add the benefit from the conduct constituting those offences to the overall benefit from any criminal conduct. Amendments Nos. 84 and 89 would remove that provision, and that would prevent the court from including offences taken into consideration in its calculation of the defendant's benefit at a revaluation hearing.

Amendments Nos. 85, 90 and 92 are different. They would delete words that explain that the court must consider the defendant's benefit from ``particular criminal conduct''. However, the court takes offences into consideration. The words are a drafting device to unite the two concepts.

The amendment would allow ``criminal conduct'' to include conduct that the court had taken into consideration when sentencing. However, the court takes not conduct but offences into consideration. The practice of confiscating the benefit of offences taken into consideration is of long standing, and we do not wish to remove it from the Bill.

The revaluation clauses ensure that, when reasonably practicable, the same procedure applies on revaluation as at the confiscation hearing that takes place immediately after conviction. The court has the power to confiscate the benefit of conduct that constitutes an offence taken into consideration if it is going through the confiscation procedures for conviction.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has satisfied me about amendment No. 85; indeed, as I read subsection (3)(a) to him, I began to satisfy myself. I therefore have no difficulty on that score.

I return to the generality and the need for the clause. If I understand clause 6 correctly, the court may consider benefits that may have accrued from offences taken into consideration under that clause. The Minister nods. I am therefore puzzled about why it was felt necessary to restate that in clause 20 if clause 6 is supposed to apply. I would simply have said ``section 6 has effect''. I am puzzled about why it was felt necessary to restate the ability of the court to take TICs into consideration when coming to a subsequent reappraisal on the application of the director or prosecutor in the six-year period.

Bob Ainsworth (Labour, Coventry North East)

We believe that it is necessary to restate that because clause 76 looks forward, and confiscation normally takes place before sentencing. In dealing with reconsideration, we are therefore restating the principle that conduct in cases taken into consideration is part of the particular criminal conduct. I do not understand how removing the provision would make the matter clearer. The hon. Gentleman suggests that simply restating that clause 6 applies would do that. We are restating the provisions in clause 6 as they apply to reconsideration, and I am struggling to understand why he has a problem with that.

Dominic Grieve (Conservative, Beaconsfield)

I do not want to labour the point, and I am perfectly prepared to accept that I may have misunderstood the matter. However, subsection (2) states:

``If this section applies the court must proceed under section 6'',

but goes on to give a series of further definitions to try to marry ``section 6'' to the new position. I find it odd that the issue of offences taken into consideration should have to be explicitly restated in the clause. I would have expected it to apply in exactly the same way as the procedure under clause 6 if confiscation were taking place before sentence. During the confiscation process, I assume—I believe that it is common ground—that the offences that are to be taken into consideration will also be considered.

I accept that a drafting point may be involved. Ultimately, it may be that the difference between the Minister and me is minute, or that we are both worrying about nothing. Nevertheless, the provision was sufficiently odd for me to want to ascertain what was in the draftsman's mind in this case.

Bob Ainsworth (Labour, Coventry North East)

The procedures under clause 20 cannot be exactly the same as those under clause 6, for the simple reason that confiscation takes place before certain parts of sentencing. When reconsideration takes place, obviously all the sentencing in the original consideration has taken place. The provisions therefore cannot be replicated.

Dominic Grieve (Conservative, Beaconsfield)

We may now have reached a point that involves a wider issue. Under the clause 6 procedure, confiscation takes place, an assessment is made and the defendant is sentenced. In such circumstances, might offences be taken into consideration during the sentencing process, after the confiscation order is made? The court could not make a confiscation order in respect of those TICs. However, six years later, when a reconsideration takes place, TICs could be taken into account in determining the confiscation order that is made. Does the Minister understand my point? There might be a different regime, and a defendant would be seriously disadvantaged in the reconsideration because TICs that were previously kept out of the confiscation picture could suddenly be brought in. I did not think that that was what he intended, and I find it hard to believe that it is, but he raises the slight possibility that that might be the case.

Bob Ainsworth (Labour, Coventry North East)

I am fairly certain that what the hon. Gentleman has suggested is not what is inferred, but I will go away and make absolutely sure that that is the case. Cases that are taken into consideration will have been known to the court at the time of conviction, and it will then go through the procedures outlined in clause 6: sentencing, confiscation, and any fiscal sentencing that is considered appropriate after the confiscation is taken into account. That procedure would cover cases that are taken into consideration in the same way as they would be covered on reconsideration. Clause 20 does not introduce a new concept to that which is laid out in clause 6. I will find out whether that is correct, and I assure the hon. Gentleman that I will inform him if it is not.

Dominic Grieve (Conservative, Beaconsfield)

It is early in the morning, and I hope that the Minister will forgive me if, following yesterday's late night, I have not clearly explained what was bugging me about the clause. We have clarified that by dialogue, which is what a Committee is supposed to do.

I am pleased that the Minister is not envisaging a different regime under clause 20 from that laid out under clause 6. However, my concern is that one might consider that there are advantages. I had not thought of the following point until we came to clause 20: if clause 6 might produce a situation in which a person whose confiscation had been assessed before sentence could say, after he has been sentenced, ``I also want 250 other offences to be taken into account,'' that would raise, for the first time, possibilities with regard to benefits from criminal conduct that had not been thought about before. That circumstance would be a strange consequence of clause 6.

Vera Baird (Labour, Redcar)

I wish to contribute to the excellent dialogue. If the hon. Gentleman refers back to clause 6, clause 76(3)(c) might serve to clarify the matter under discussion. It states that

``conduct which constitutes offences which the court will be taking into consideration in deciding his sentence for the offence or offences''

can be taken into account as criminal conduct. Is that helpful, or does it muddy the waters?

Dominic Grieve (Conservative, Beaconsfield)

It is helpful. I have not come across a situation in which the offences to be taken into consideration are sprung on the court at the last minute, without being made available during the pre-sentencing process. Therefore, I expect that the regimes under clauses 6 and 20 would be identical. If that is the case, I merely repeat a question: why was it felt necessary to define the regime again in clause 20 and subsequent clauses? That is an interesting question.

I welcome the Minister's remarks, and I am sure that he will be able to provide reassurance.

David Wilshire (Conservative, Spelthorne)

My hon. Friend believes that clause 76 is helpful, and as he is a lawyer, I will not challenge his opinion on that. However, should not reference be made to clause 76 in clause 20, to clarify what we are trying to achieve? That point has cropped up before.

Dominic Grieve (Conservative, Beaconsfield)

It is an interesting point, and the Minister might wish to consider it. I do not want to go back over the drafting. The legislation is complex, and it is often necessary to go on a search for what a matter in a clause relates to. In some cases, one must examine not merely one clause, but a clause that refers one to yet another. I do not know whether that will make the Bill a practitioners' fortune or a practitioners' nightmare when it is implemented. I know that there are drafting matters to consider, and minimalism and simplicity are often important, but the Minister should bear it in mind that the Bill is not easy to read and understand. There is no doubt that a practitioners' handbook will be produced to do the cross-referencing when the Bill comes into operation. However, I prefer to read legislation that is apparent.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 87, in page 11, line 38, leave out `or in connection with'.

Bill O'Brien (Labour, Normanton)

With this it will be convenient to take the following amendments: No. 91, in clause 21, page 13, line 35, leave out `or in connection with'.

No. 93, in clause 22, page 14, line 38, leave out `or in connection with'.

David Wilshire (Conservative, Spelthorne)

On a point of order, Mr. O'Brien. These amendments are the third group relating to clause 20 and by the end of the debate there will have been a substantial discussion of some matters. However, both the Minister and my hon. Friend the Member for Beaconsfield (Mr. Grieve) said that they were discussing general issues. I believe that further general matters fall outside the amendments. Will you give the Committee guidance about whether we should make general points under this group of amendments or whether you will consider granting a stand part debate afterwards?

Bill O'Brien (Labour, Normanton)

General issues can be debated in a stand part debate.

Dominic Grieve (Conservative, Beaconsfield)

The amendment raises a small matter about clause 20, but it may have wider importance. I would be grateful if the Minister would clarify the matter. The amendment is probing, to allow me to understand intent.

The provisions of clause 20 are intended to match those in clause 6, but for a situation that arises on reconsideration. Clause 20 points out that clause 9(2) will not apply—that makes perfect sense—and states that the court must take account of conduct that occurred before the relevant date, property that was obtained before that date, and property that was obtained on or after the relevant date

``if it was obtained as a result of or in connection with conduct occurring before that date.''

I understand that property obtained as a result of conduct occurring before the date means that property that arose from criminal conduct should be taken into consideration, although it may have accrued to the benefit of the defendant subsequent to the relevant date. However, what does

``property obtained . . . in connection with conduct''

mean? The connection is surely a result of the conduct. If it is not, how can the property be described as the proceeds of crime?

Have the draftsmen shown a superabundance of caution? I experienced that during consideration of a Northern Ireland Bill that stated that certain bands should not play ``musical or other instruments''. I asked what another instrument is if it is not musical, and the words were deleted. There is sometimes a tendency to over-egg the pudding. If the matter is not a result of that conduct, what is the aim of ``in connection with''? If the connection is not ``as a result of'', surely we are considering assets that are unassociated and would not fall for consideration.

Amendments Nos. 91 and 93 would make the same change to clauses 21 and 22 respectively. The issue is the same in relation to all three clauses. It is a simple matter, but I have an underlying concern as to whether the use of the words ``in connection with'' is not an attempt at widening the scope of the eventual confiscation order in a manner that might be thought unreasonable. Surely the whole issue of these provisions is that property obtained as result of criminal conduct falls to be confiscated.

To give the Minister an example—a difficult one—if I go out and buy a car with my inheritance from my grandmother, that is my money. If I happen to have driven that car on one of the days on which I was also committing one of the offences for which confiscation falls, does the Minister intend that that car should be confiscated? That is not how it appeared to me that the Bill was intended to operate under clause 6, which is why I am slightly puzzled that it has appeared in this form under clause 20.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Does the hon. Gentleman agree that if that is the intention and effect of the operation under the clause, it would be most unhelpful? It would muddy further an often misunderstood distinction between confiscation and forfeiture. Forfeiture would be the appropriate avenue for the court in relation to the car to which he refers.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely. That is precisely the issue that we should address. It is all the more curious because it is highlighted under reconsideration, although I did not flag it up, and I cannot see where it appeared in that form when we considered it under the straight confiscation provisions. I wait to hear from the Minister on that point.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right that the amendments, taken in isolation, would have a relatively narrow effect, but their consequences would go far wider than that. Let me say, without trying to justify the wording of the Bill, that the measures go no further than the current legislation. If there is a belt and braces approach, or a superabundance of caution, it already exists. The Committee will have to consider whether such caution is necessary.

Nick Hawkins (Conservative, Surrey Heath)

I understand the point that the Minister makes. However, will he enlighten us as to whether the phraseology about which the hon. Member for Orkney and Shetland (Mr. Carmichael) and my hon. Friend are worried is the precise formulation used in the existing legislation? If not, there is no reason to repeat it, thereby leading to the possible difficulties that they have outlined.

Bob Ainsworth (Labour, Coventry North East)

I do not think that it is the exact wording in the existing legislation. I shall outline briefly the current legislative position. Section (2)(3) of the Drug Trafficking Act 1994 provides that a person benefits from drug trafficking if he has at any time received any payment or reward in connection with drug trafficking. Section 71(4) of the Criminal Justice Act 1988 states that a person benefits from an offence if he obtains property as a result of or in connection with its commission. Both those statutes have the effect that a court conducting a revaluation exercise can consider benefit received by the defendant at any time, both as a result of and in connection with criminal conduct. The Bill does not go further than existing legislation in that respect: it replicates it.

I shall outline why we are including the words in question, and let the Committee consider whether the abundance of caution is more than is necessary. The Bill applies both limbs of the definition—``as a result of'' and ``in connection with''—in the revaluation clauses and elsewhere, because that is necessary to ensure that offenders are deprived of the full value of their criminal proceeds. There is no reason to treat property obtained after the date of the original court decision or after the conviction differently from other property when the court is reconsidering the case. The court should consider all the information available to it about benefit connected with the conduct. If, for example, a defendant has in his bank account a sum of £50,000 acquired from crime, it is perfectly acceptable that the court should recover the benefit, including any interest that has accrued on that sum, up to the time when a confiscation order is made and not up to the point of conviction. If confiscation powers were limited to property received as a result of conduct, that would not be sufficient to cover every situation in which criminals derive benefit from crime. That has always been accepted, and, in response to the question posed by the hon. Member for Beaconsfield, it applies to revaluation provisions and general provisions.

To give an example, let us suppose that an offender is involved in a drugs ring. The offender's sole involvement in the operation is to carry the drugs into the country in exchange for a payment by the organisers of the ring. It would not be beyond the ability of a lawyer to seek to argue that payment in those circumstances was not received as a result of the conduct. However, we would want such payment to be the subject of confiscation. Perhaps the courts would reject an argument along the lines that I have mentioned, but the wording ``in connection with'' makes that outcome far less likely. Many circumstances exist in which benefit is derived from criminal conduct but is not a direct and immediate causal result of that conduct. It would not be right to place such benefit beyond the reach of confiscation as the amendment would do.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Minister just imported some interesting words into the Bill that are not currently there. He referred to a ``direct and immediate'' result. That is not the wording of the Bill, which is ``as a result''. There is no need for immediacy or directness under the Bill.

Bob Ainsworth (Labour, Coventry North East)

Is the hon. Gentleman arguing that we should limit the ability of the court to consider the proceeds of crime when they cannot be proven to be directly the proceeds of crime. There are all kinds of instances when the individual concerned receives payments not directly but as part of an operation or organisation, and such proceeds can properly be regarded as the proceeds of crime.

Boris Johnson (Conservative, Henley)

It seems to me that the words ``in connection with'' are superfluous. In the Minister's example of a trafficker who is rewarded, and who plainly receives his reward as a result of engaging in that criminal activity, it would be impossible for a lawyer to argue otherwise. My only suspicion is that the words ``in connection with'' are intended to widen the definition to draw in proceeds that may not be directly related to the particular crime.

Bob Ainsworth (Labour, Coventry North East)

There is not an intention to widen the definition, and that is not the effect of the wording. Does the hon. Gentleman want to put such issues in doubt, and allow for such arguments to be made when the proceeds are not wholly direct, as I said? Alternatively, does he want to make it absolutely clear to the court—through the wording of the Bill—that when proceeds have been gained ``in connection with'', those proceeds are allowed to be confiscated? The caution expressed in the Bill is necessary in order to preclude that doubt. We should not allow that doubt to enter into the argument. I do not agree that the phrase widens the definition to include benefits that are not the proceeds of crime.

Dominic Grieve (Conservative, Beaconsfield)

The Minister used the word ``proceeds''. I agree that there would be no difficulty with proceeds gained ``in connection with''. However, the word that appears in the Bill is ``property''. That is one of the reasons why I flag up the point about a car that is legitimately acquired but is used in connection with criminal conduct. The Minister did not suggest that such a vehicle or property was to be taken into account. There is a difference between property and proceeds.

Bob Ainsworth (Labour, Coventry North East)

Although I used the word ``proceeds'', and the hon. Gentleman is concerned about the word ``property'', the Bill mentions ``property obtained'', not ``property used'', in connection with crime. He would have a point if the Bill referred to ``property used'' in connection with crime. If a criminal had borrowed his granny's car, we would not want the car to become subject to the confiscation procedure. That car would not be property obtained in connection with crime.

Boris Johnson (Conservative, Henley)

What if the culprit used his granny's car to engage in not just criminal activity but lawful activity by which he obtained property in connection with his particular criminal conduct? If I understand the clause correctly, that property would be forfeit, or liable for confiscation.

Bob Ainsworth (Labour, Coventry North East)

If the culprit used his granny's car to obtain property in connection with crime but did not obtain the car as a result of criminal conduct, how would the car be forfeit? If he obtained it as a result of, or in connection with, criminal conduct—obtained, not used—why should he not forfeit it?

Boris Johnson (Conservative, Henley)

The Minister slightly misunderstands me. The issue is not how the criminal obtained the car, but property obtained with the car that may be connected with criminal conduct. As I understand it, such property would be connected with his criminal conduct. If he were engaged in drug trafficking or whatever, that property, too, would be connected with criminal conduct, and would be forfeit.

Bob Ainsworth (Labour, Coventry North East)

Property obtained with the car would have been property obtained in connection with criminal conduct; the car itself would not. The car was borrowed from his granny, so it would not be forfeit. I do not believe that the hon. Gentleman's fears are real, and I do not believe that he thinks that we would confiscate the car in the case that he mentions.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

Subsection (4)(c) says

``or in connection with conduct''.

It does not mention ``criminal conduct''. Sailing away in granny's car is simply conduct, it is not necessarily criminal conduct. I speak as a lay person, and I hope that I have made the matter clear.

Bob Ainsworth (Labour, Coventry North East)

Is not the hon. Lady missing out the word ``obtained'', as did the hon. Member for Henley (Mr. Johnson)? If the car is obtained in connection with criminal conduct, it ought to be potentially forfeit, and the courts ought to be allowed to consider the matter.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I am a lay person, but it seems to me that ``property obtained'' does not necessarily refer to property that has been obtained by criminal means.

Bob Ainsworth (Labour, Coventry North East)

I am not a lawyer, so I do not know why the hon. Lady makes the distinction that she is a lay person.

I have been advised that the formula ``obtained . . . in connection with'' criminal conduct would not allow the legislation to cover property used in connection with criminal conduct—or the similar kinds of property to which reference has been made. However, as I am a lay person, I do not know how further to assure the hon. Lady about that.

I ask Opposition Members to accept that the words that are used in the Bill would put such issues beyond doubt: they would not raise confusion; and, with regard to confiscation, they would not allow loopholes to occur where there is property that is obtained in connection with the proceeds of crime.

David Wilshire (Conservative, Spelthorne)

I am still struggling with the first point that was raised by my hon. Friend the Member for Henley. I hope that I correctly understood the Minister on that. When he was challenged about the phrase ``in connection with'', I was pleased that he made it clear that the Government do not intend to widen the scope of the legislation, and that he subsequently suggested that the intention was to clarify.

However, neither I nor my hon. Friend are lawyers, and—with the greatest respect—nor is the Minister. Therefore, I ask him to consult lawyers to discover whether it is the case that that phrase will clarify without widening, and to inform the Committee of the legal beagles' view of what he has said. I hope that what he has said is correct, and if that phrase clarifies matters, I would support it. However, I want him to give an undertaking to the Committee that, if the advice that he receives suggests that the phrase might widen the scope of the legislation, he will consider changing the wording.

Bob Ainsworth (Labour, Coventry North East)

I am more than happy to give that assurance. I am confident that the hon. Gentleman is wrong, and that the phrase does not widen the concept to cover property used in connection with—rather than obtained as a result of—crime. However, I will confirm that, and inform him that that is the case.

Boris Johnson (Conservative, Henley)

Logically, the insertion of that phrase must cause a widening—otherwise, it would be impossible to make sense of it. If there is any causal connection between a villain's ownership of property and his criminal conduct, that will be entirely captured by the phrase ``as a result of''. There is no need to insert the phrase ``or in connection with'' unless the intention is to widen the legislation by dragging in for expropriation property that was not obtained as a result of criminal conduct.

Bob Ainsworth (Labour, Coventry North East)

Let us try to address the point of principle: is there a major issue at stake, or do we agree with each other, being concerned merely about the wording? If the hon. Gentleman believes that property obtained in connection with criminal conduct should not be confiscatable, he should make his case for that. However, I cannot see why it should not be confiscatable. If hon. Members are opposed to that principle, they should state that—in interventions or in their own contributions—so that we can examine whether the argument has some substance. If that is not the case, the hon. Member for Spelthorne (Mr. Wilshire) wants assurance that the Bill will not do something that was not intended. That is the only issue between us. Having assured him that I shall check that the Bill will not do that, we must return to whether there is an issue of principle. Property obtained in connection with the proceeds of crime should be confiscatable. It should be a matter for the court to decide. I do not believe that property so obtained should be put beyond the reach of confiscation, and I hope that hon. Members agree with me.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

We are in danger of trying to count the number of angels that can dance on the head of a pin. The Minister referred to there being a matter of principle. I do not agree, other than that legislation should be well drafted and mean what it says. He said that such a form of words is used already in legislation. When he thinks deeply about the request of the hon. Member for Spelthorne, will he consider the danger that, if we restrict the wording of the Bill, it will be regarded by the judiciary as restricting the operation of the law.

I am generally in favour of the amendment. It is logical, and that must not be lost sight of. When the Minister cited various examples, I found myself mentally picking each one off and thinking, yes, that should be covered by confiscatable property. However, each time I agreed with him, I then thought that such matters would be covered by property obtained ``as a result of'' such conduct. I do not think that ``or in connection with'' adds any meaning to the Bill, so let us get rid of it. The amendment makes common sense. It is that simple. Such words do not widen the scope of the Bill.

Steve McCabe (Labour, Birmingham, Hall Green)

I have a simple question. I understand why the hon. Gentleman made the point that, if the words do not have a purpose, they are redundant. When someone obtained property or proceeds as the result of a secondary role in what was a larger scale offence, it could be argued that he had not obtained the property or proceeds directly as a result of, but in connection with wider criminal activities.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman used the interesting words ``as a result of''. He then tried to import the question of a direct result. There is no question about that in the Bill. I could understand the force of the statement, ``as a direct and immediate result or in connection with'', but that is not what the Bill says. When no real benefit is to be derived from using certain words, why should they be there? The matter is as simple as that. The only possible sense in which such words could be used to widen the scope of the clause is the example highlighted by the hon. Member for Beaconsfield when he referred to possible confusion between confiscation and forfeiture. That has already slightly muddied the water and, if there is a danger that the wording under discussion will muddy it further, we must devoutly avoid it. We would not want to die in a ditch over the matter, given that the Minister has assured us that he will consider it.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right. If the words are totally superfluous, they should be removed from the Bill. The hon. Member for Henley pursued a point about widening. He rightly exposed the potential difficulty that if the words were removed, the courts might interpret that as narrowing the definition. He said that he would not want to do that, and we must examine the matter. We currently believe that if we removed the words, we would narrow the definition, and that is why we want to retain them.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I do not share the analysis of the hon. Member for Henley that we would widen the definition of the clause in a way further than I have mentioned. He said that if the words are present, they must have a purpose, which is to widen the definition. I beg to differ, and I suggest that there is no good reason to include the words, except that they have been used in previous legislation.

Nick Hawkins (Conservative, Surrey Heath)

I do not want to prolong the argument unnecessarily. The words either have meaning in their natural and ordinary usage in the English language, and have a widening effect as a consequence, as my hon. Friend the Member for Henley said, or we can get rid of them because they are not intended to widen the Bill.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I think that that might be the case. We are splitting split hairs. As I said earlier, there is not a great principle at stake, but the question of neatness and appropriate use of language. I urge the Minister to consider the matter.

Mark Field (Conservative, Cities of London and Westminster)

I am not entirely convinced that the hon. Gentleman is right to say that there is not a question of principle. I hope that the Minister will assure us of that when he sums up. I was worried by the comments of the hon. Member for Birmingham, Hall Green (Mr. McCabe), who may have let the cat out of the bag. If the words ``in connection with'' have any meaning to the proceeds of crime—I am not convinced by the Minister commenting that there are no circumstances in which they mean anything different from ``as a result of''—we are opening a Pandora's box of all a defendant's past conduct. Therefore, we would provide a belt and braces beyond moneys that have been confiscated.

David Tredinnick (Conservative, Bosworth)

I do not have the benefit of legal training. As a lay person who read the clause, I had the impression that the scope was being widened. I still have that impression.

Mark Field (Conservative, Cities of London and Westminster)

I thank my hon. Friend. There is a philosophical point in saying that surely even convicted drug dealers have rights over property that has been legitimately earned. Are the words ``in connection with'' an attempt to muddy the two streams of legitimate and illegitimate assets?

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Am I correct to assume that Conservative Members are worried about the assets of drug dealers? Yet again, they are more concerned about drug dealers than about their victims.

Mark Field (Conservative, Cities of London and Westminster)

That is a tough one to reply to. I can reassure the hon. Gentleman umpteen times that that is not the case. I am concerned that we are taking the law further forward to muddy the waters for not only convicted drug dealers but all of us. There would be a sense that the moment a person is under investigation, all his or her assets could be placed in one pot, and considered as the proceeds of crime. I hope that the Minister will reassure me that the words are redundant and should be removed, but if they are not, the only meaning that I can perceive is the muddying of the two streams of illegitimate and possibly legitimate assets.

I fully appreciate—I know that we have pursued such matters previously—the worry that we do not want criminals to get away with assets that they have built up. However, there may be more than a reasonable doubt about the assets.

John Robertson (Labour, Glasgow Anniesland)

Am I right in assuming that the hon. Gentleman and his colleagues consider that the rights of drug dealers are more important than the rights of those who suffer as a result of them?

Mark Field (Conservative, Cities of London and Westminster)

I speak for myself and not necessarily for all my hon. Friends on the matter. Splendid isolation is occasionally not a bad position to be in.

We are trying to get to the bottom of the words' meaning, which is the ultimate purpose of any Committee. If I am to be convinced that the words have no meaning—the point has been elucidated by my hon. Friend the Member for Henley—let us remove them from the Bill. If they have meaning, my only worry is that they are used to give a belt and braces. If we do that for convicted drug dealers, where will the line be drawn? I suspect that there would be a precedent for future Bills in which people are investigated, and that would allow organisations, particularly the Financial Services Authority, to consider all assets in one pot.

Vera Baird (Labour, Redcar)

I accept the analysis of the hon. Member for Orkney and Shetland that the phrase ``as a result of'' conduct—that effectively means criminal conduct, because the stage is beyond that of a criminal lifestyle—means only because of crime. Therefore, I understand why he believes that ``in connection with'' does not add a great deal to the Bill. However, there is a possibility of an intended drugs deal where money is given to a man who will purchase drugs from the deliverer. That man may have that money when he is arrested, and that arrest may occur before the crime is committed, because the drugs equivalent of the flying squad has been watching events. In such a case, we would want the would-be criminal to forfeit the money, to use the hon. Gentleman's word. It would torture language to say that the person had the money as a result of a crime that had not been committed.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The particular set of circumstances that the hon. Lady outlined would constitute at least an attempt to commit, under sections 4(3)(b) or 5(3) of the Misuse of Drugs Act 1971, the offence of possession with intent to supply or of being concerned with the supply of drugs. The person would have the money as a result of his attempt to commit such crimes.

Vera Baird (Labour, Redcar)

Again, I can see the force of that point. If, in the middle of confiscation proceedings, we argue about sufficiently proximate acts to define attempts, conspiracies, or incitements, it is far better to insert terminology that covers that.

A lay person reading the legislation would not think that the would-be perpetrator had received that money as a result of the crime if, for all practical purposes, the crime had not taken place. That difficulty is covered by such a turn of phrase, which—although I have listened carefully to what the hon. Member for Henley said—does not widen the application of the provision. It does have a purpose, which is to deal with a situation like that, and that it is not dangerous.

The judiciary exists to do justice, and to ascertain what is criminally obtained property under the Bill, not to be sidetracked into the minutiae that we are discussing. People should be reassured. The analogy of the car inherited from granny that has been used in the course of a crime will not help the criminal, because a separate set of provisions would confiscate that car.

David Wilshire (Conservative, Spelthorne)

On a point of order, Mr. O'Brien. While you and your colleagues have been in the Chair, this Committee has thus far been conducted with a great deal of good humour. Some frank and helpful exchanges from both sides have been given and accepted in the spirit in which they were intended. However, at the risk of missing out on that good humour for a moment, I must challenge the comment by the hon. Member for Glasgow, Anniesland (John Robertson). It introduced a sour note about our intentions. No apologies are needed for doing the job of the Opposition. The Opposition, among other things, test the accuracy of the wording of the Bill. The Minister said that he was willing to consider whether our points about accuracy should be further reviewed. Accuracy is important, and I thank him for accepting that.

Equally, we should not apologise if we question the Bill's intentions. Much of it is supported by all members of the Committee. Where there is some question about the intention, it is our duty to raise it. The Minister, again with good humour, disagreed with our doubts about the intention and the widening of the Bill, but did agree to look into it. To do the job of the Opposition—to challenge accuracy and intention, particularly when the Minister responds positively—can in no shape or form make us the friends of drug dealers. I resent the slur made by the hon. Gentleman, and wish to put the record straight.

Bill O'Brien (Labour, Normanton)

That is not a point of order for the Chair, but I am sure that the hon. Gentleman's words have been heard.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I recall a meeting in my constituency, in which the chairman intervened. Someone said, ``Methinks they do protest too loudly'', to which the chairman replied, ``I have to, otherwise the people at the back of the room cannot hear''.

The hon. Member for Spelthorne is making far too much of the matter, which shows that there is substance to our argument. We have we spent an enormous amount of time on the amendment, and at the end of today a guillotine falls, by which time we must reach clause 40. If we do not, there will be no debate on the clauses that have not been discussed. The strategy of the Conservatives and Liberal Democrats is to ensure that some of the provisions at the end of clause 40 are not discussed, so that they may seek amendments to them in the other place on the basis that they were not discussed here. A more honest approach would be to argue their case on the subsequent clauses rather than trying to obfuscate the position.

I was interested to hear the words ``minimalism and simplicity'' from the hon. Member for Beaconsfield, as they are not words that I would associate naturally with him and his colleagues. Indeed, ``obfuscation and rapacity'' might be better terms for lawyers in general and the hon. Gentleman in particular. If he and his colleagues want to be taken seriously, perhaps it would be better if they were to make constructive suggestions and stop posing as the drug dealer's friend.

Bob Ainsworth (Labour, Coventry North East)

As the hon. Member for Beaconsfield said, we were up late last night, or later than we are accustomed to in these modern times—12 o'clock was early not so long ago, but it becomes harder when it is not so frequent. Perhaps we have not been as clear as we otherwise could have been in the debate that we have been having.

As I tried to say previously, there are two issues: whether there are words in the Bill that mean absolutely nothing—in which case, if we can be utterly assured that they mean absolutely nothing, they should not be there—and whether there is a danger that, by removing them or leaving them in, we widen the concept or narrow it. The hon. Member for Cities of London and Westminster (Mr. Field) has convinced himself on this point, as he has on others, that the intention is to widen. He is worried about that, as is the hon. Member for Henley.

I shall repeat what I said, and clarify for the benefit of the two hon. Gentlemen, that the Drug Trafficking Act 1994 refers to a person having received payment or other reward ``in connection with'' drug trafficking. We have tended rightly to concentrate on the connection aspect, because of the wording of the amendment, but it is already in the 1994 legislation. The Criminal Justice Act 1988 refers to a person having obtained property

``as a result of or in connection with''

the commission of an offence. Taking those two precedents fully into account, if we removed ``in connection with''—more so than ``as a result of''—we would narrow the meaning of the legislation. We would send a clear message to the courts that we were intending to narrow the definition. That is the issue raised by the hon. Member for Orkney and Shetland, and we would have to be sure, before removing those words, that that was not so. The danger is that we would narrow the definition, not that we would widen it.

Paul Stinchcombe (Labour, Wellingborough)

Given that the words that the amendment purports to remove are found in other similar legislation, is it not clear that such cases are exactly the kind that would be removed?

Bob Ainsworth (Labour, Coventry North East)

I do not think that the courts could interpret it in any other way than if we remove those words, we intend to narrow the definition.

If that is the case, as I said when I tried to move the debate on to whether this is an issue of substance, I shall oppose removing the words. Only if I were absolutely convinced that it were not the case would I be prepared to accept the amendment. I hope that it is not an issue of substance, and that the Committee will accept that we should not narrow the definition. If we accept the amendment, there is a danger that we will do exactly that. On those grounds, I ask the hon. Member for Beaconsfield to withdraw the amendment, but, in response to the hon. Member for Spelthorne, I shall check whether that is the case and, having taken advice on the matter, I shall make the position clear to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Member for Orkney and Shetland referred to splitting hairs, but I fear that I have raised a hare—a rather different concept—during this morning's discussion.

Bob Ainsworth (Labour, Coventry North East)

It has been running all over the Room.

Dominic Grieve (Conservative, Beaconsfield)

Indeed.

I am especially mindful of the contribution of the hon. Member for Redcar (Vera Baird) and her reasoned analysis of the clause. The term used is not ``criminal offence'' but ``conduct''. I share the opinion of the hon. Member for Orkney and Shetland that that would fall plainly within ``result'' and that there would be no problem even if it occurred before the offence had been committed.

I do not want an exercise in semantics, but I should highlight one slight anxiety. I am fully aware—the Minister has explained, and it comes to no surprise to me—that what has been used is the mere repetition of a term that has been in legislation for some time. The problem is that experience in practice has over the years persuaded me of the extraordinary capacity for words and expressions that are slipped into statute to lie dormant for prolonged periods and suddenly to surface bizarrely, not necessarily to change the law, but to create all sorts of problems. Before they have been sorted out, they end up in the criminal Court of Appeal because a Crown court judge reaches his decision on a day when the prosecutor has not, unfortunately, read the Hansard for that day's Committee, and the prosecutor suggests, because he reasonably believes, that the judge's powers are wider than Parliament intended.

I have witnessed that countless times not only in the case of statutes, but in respect of unguarded, off-the-cuff comments and extempore judgments by lord justices after a good lunch. It causes problems and has to be sorted out. I flag up the matter for that reason and because cheap and streamlined justice is one of the Committee's aims. Mindful of that, I urge the Minister to consider carefully with his officials what is intended.

The hon. Member for Redcar rightly said that forfeiture proceedings will apply to property used in connection with crime, whether it be the sledgehammer used to break down the door or the JCB used to carry out the ram raid. All such items can be confiscated. I am reminded of judges confiscating with some enthusiasm the paraphernalia of a brothel at the conclusion of proceedings on offences related to such a business. It is precisely because of the close proximity of the two that I am anxious that people should not get it into their head that the two have been married together in the Bill, causing a problem that must subsequently be untangled.

On that note, and given the assurance that I am grateful to hear from the Minister that the matter will be given further thought, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Bill O'Brien (Labour, Normanton)

I remind hon. Members that we have had a full and wide debate on the clause, and I do not intend to let the debate drift into the same repetition that we have witnessed over the past hour or so.

David Wilshire (Conservative, Spelthorne)

I shall do my best to follow your ruling exactly, Mr. O'Brien, because I believe that other issues are involved.

In case the hon. Member for Glasgow, Pollok (Mr. Davidson) wants to intervene or make a speech to say that this is another example of hon. Members making speeches for the sake of it, I should point out that guillotine motions are unilaterally imposed by his party, and we do not encourage, support or agree with them. Just because the Labour party announces that in its opinion there is enough time to do certain things by 7 o'clock tonight does not make it a God-given statement. Again, there will be no apologies from this side for doing a proper job when the Government want to do a rush job in the hope that they will not be scrutinised by Parliament as properly as we believe that they should be. I thought that I would get that in to save the hon. Gentleman having to make the speech that I suspect that he will make. In any event, the more speeches that he makes, the more he will waste the time of Opposition Members who want to make valid points.

When I read clause 20, I wondered—again, as a layman—why it was needed. During our debate, it was made clear that that it would not be possible to proceed under clause 6 because it covers different circumstances. I think that I understand that argument, but it may become clear that I do not. I remain to be persuaded whether the clause is necessary. It also raises the issue of double jeopardy. I expect that a lawyer will tell me that I have misunderstood the meaning of that, but the clause will put a person at risk of further penalty in a way that is not normal or acceptable under English law. If the procedure has been gone through and someone has been convicted and their assets have been investigated, that should be the end of it, yet under the clause, notwithstanding the justice that has been meted out to the criminal, there will be another investigation. Will the Minister reassure me that such action is not beyond what is reasonable in a country that believes in the rule of law?

The provision could put a person in an invidious position. Let us suppose that someone is convicted of more than one offence, and thinks to himself that one of the convictions is fair, but that the other is not. If he appeals against that conviction, re-opens the case and says, ``I am guilty of other things'', his ability to mount a proper appeal against the conviction when he considered an injustice had been done could be hampered by the provisions of the clause being brought into play. If he opens his mouth to launch an appeal, he will automatically open a trapdoor for matters outside the original case. That could make it more difficult to achieve justice.

A previous issue comes to mind that we were told was irrelevant. We argued that, if we went back beyond six years, the onus of proof should switch back to the Crown and away from the defendant or the convicted criminal. We were told that a six-year rule was unreasonable, so I was surprised to find a reference to it under subsection (1)(c). Having been told previously that that rule was not appropriate, why has it been introduced in the clause? The position needs clarifying.

Subsection (4)(c) refers to property that has been obtained as a result of or in connection with the conduct that was the subject of the original proceedings. That takes me back to our argument about the six-year rule. I am talking about the introduction of property that was not part of the original proceedings, but related to something that had happened subsequently. If someone had now to demonstrate that the property had been acquired subsequently by proper means, without the safeguard of the six-year rule for which we were arguing, he would be placed in an invidious position.

My view remains the same, despite the Minister's response to the previous debate: if one looked back more than six years, a person would have only a slim chance of being able to prove beyond doubt that they had used assets that were acquired legitimately to buy property. However, they would lose out if they could not prove it.

I offer another example: a convicted criminal might have attained a property a long time—20 years, for instance—after they had acquired the money to purchase it, and they might be asked to prove that it had been acquired legitimately. I do not wish to lean over backwards to help convicted criminals, but it seems to me that it might be difficult for justice to be achieved in such circumstances.

I wish to raise another issue—and I hope that it will reassure anyone who might be tempted to think that I am trying to be soft on criminals that that is not the case. I want to know what subsection (7) means. As a non-lawyer, I understand it to mean that when a court decides what to do with somebody, it will take into account other fines, forfeitures or penalties—or whatever the right term might be—before making an order. If that is the case, the provision is being lenient on the criminals. I hope that that redresses the balance with regard to some of the other things that I say.

I also hope that the Minister will tell me that my interpretation of subsection (7) is wrong, as it seems to me that we are being asked to agree to something that says, ``In theory, this is what should be confiscated from you, but because you have outstanding fines and debts, we will reduce the amount that we are seeking to take from you.'' If that is what that subsection means, it is wrong. A court should say, ``In our judgment, taking into account all the facts of the crimes, and the circumstances, and what you have told us, this is what you owe, and you will pay it, please''—and if the person cannot pay it, they are made bankrupt, and if they become wealthy enough to pay it, they are made to pay it. However, if subsection (7) is saying, ``We will reduce the amount if you are in financial difficulty,'' I will be opposed to the clause.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I wish to follow up a couple of the points that were made by the hon. Member for Spelthorne—and, in particular, the earlier strictures that he laid upon me, which seemed to me to be a load of Molochs.

The guillotine was agreed; that was the unanimous decision of the Programming Sub-Committee, which—according to my understanding of the word ``unanimous''—means that it was accepted by Conservative hon. Members.

David Wilshire (Conservative, Spelthorne)

As I have explained, I was not present at the meeting of the Programming Sub-Committee, as I was attending my mother's funeral. Therefore, the decision could not have been unanimous, and had I been present, I would have made my views crystal clear.

Bill O'Brien (Labour, Normanton)

I do not know what the hon. Member for Glasgow, Pollok said, but I hope that it was not unparliamentary.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

It certainly was not; if it were, I would not have said it.

My remarks will be minimalist, although they address important matters. I ask the Minister to clarify the reference in subsection (1)(c) to

``the end of the period of six years''.

I am concerned that it might mean that if someone who has managed to conceal their assets is caught and jailed for 20 years, for example, but released after 10 years, they could bring their assets in from abroad, or dig them up from the ground, and start spending, and, if the six-year period has been surpassed, the court would not be able to pursue them. I acknowledge that that would apply, in particular, to circumstances in which the court has decided not to proceed, but it might have made that decision because there was no visible sign of any assets, and therefore, it might have been entirely misled into believing that the person had no assets. However, if it subsequently discovers—even after more than six years—that there were gains from crime that had successfully been concealed, it would be contrary to the spirit of the legislation if the court, and the system, were not also able to attempt to seize them.

Boris Johnson (Conservative, Henley)

It occurs to me as a complete non-lawyer that apart from the question of the potential oppressiveness for the miscreant, in so far as his property may or may not have been innocently acquired, and the delay of six years in reconsidering his case, the clause also creates a risk that undermines the very purpose of the Bill as endlessly set out by Labour Members. If we give the director, the Assets Recovery Agency and everyone else six years after conviction to get hold of the proceeds of crime, we incite them to a lack of care, thoroughness and energy at the outset of the procedure.

Steve McCabe (Labour, Birmingham, Hall Green)

The hon. Gentleman may have missed the point. Is not the purpose of clause 20 that the case should be reconsidered when new evidence came to light, and not because the director or prosecutor had evidence, and had claim to use it, at the time of conviction?

Boris Johnson (Conservative, Henley)

None the less, the effect will be to allow the director and the Assets Recovery Agency to hang fire in the hope that new evidence will come to light. I am not convinced that the six-year period will encourage them to be as dynamic as they might otherwise be. I am sure that Labour Members, who will want to recover every penny that they possibly can, will want to close that loophole.

Paul Stinchcombe (Labour, Wellingborough)

The hon. Member for Spelthorne may have raised a good point after all these sittings. It relates to subsection (7)(b) and the requirement that we subtract from the just or available amount those sums which have been, or are due to be, paid as fines. Does not that amount to allowing the defendant to pay his fines out of the proceeds of crime?

Dominic Grieve (Conservative, Beaconsfield)

One matter that arises from the discussion has not been touched on. Is it envisaged that an application for reconsideration of a case can take place on only one occasion, or could it take place many times, whenever further information comes to light? I am not aware of any multiple considerations that have taken place in the past, although perhaps they have. That raises the issue of finality in proceedings.

In our discussions, we have acted on the principle that reconsideration would be a one-off event that would take place when new information came to light, but I foresee circumstances in which there might be more than one reconsideration. Does the Minister think that that is desirable, and has it ever happened? Does he think that some limitation should be introduced? It is desirable that confiscation should take place if new information comes to light but, as we sometimes argue in other contexts in the House, it is also desirable that there should be an end to legal proceedings.

Someone may spend the six years after a confiscation being dragged through multiple reconsiderations of benefit. Some might say that that would be due to a failure by the prosecutor or director to get their act together in the first place. I flag that up, and would be interested to hear the Minister's comments.

Bob Ainsworth (Labour, Coventry North East)

Clause 20 is one of three clauses that allow reconsideration within six years. On the one hand, my hon. Friend the Member for Glasgow, Pollok asks me why the period should be limited to six years, and on the other, Opposition Members say that no period should be allowed, and that we are only encouraging ineffective enforcement by allowing people to reconsider cases.

There is a six-year limitation on the assumptions. To make the Bill proportionate, there should be a time limit for when people can go back. We therefore propose that the reconsideration clauses should be subject to a six-year limit.

When the director or prosecutor seeks reconsideration, he must convince the court that it is appropriate. It is at the court's discretion whether such action will proceed. I shall clarify the point made by the hon. Member for Beaconsfield. In theory, there can be multiple reconsiderations and I do not see why that should not be so. To our knowledge, however, reconsideration under the existing legislation is rare. I am not aware of any circumstances in which there have been multiple reconsiderations. I ask members of the Committee to think about the backstop position in which new evidence came to light that would convince the court that it was appropriate for reconsideration to be allowed. The Bill should not prevent that from happening.

I accept that, under clause 20, a confiscation order may not be made or allowed because there was no evidence that the person who committed the crimes had made an acquisition. However, it may be shown clearly at a later date that a substantial gain had been made from those activities and that a confiscation order should have been taken out against the individual. It would be appropriate to return to the court with the new evidence that there had been an acquisition and allow it to consider the position.

The hon. Member for Spelthorne referred to people challenging the conviction. There is provision in the Bill to prevent self-incrimination. Under clause 18(6), evidence given by a defendant that he has benefited from his actions is not admissible in proceedings for an offence. If a person were obliged to give evidence about the proceeds of crime, that could not be used against him in respect of further convictions. That is the matter of double jeopardy to which the hon. Gentleman rightly referred. If we are, in effect, obliging disclosure in confiscation proceedings, that will not trigger self-incrimination.

David Wilshire (Conservative, Spelthorne)

The Minister said that such an act could not be used in proceedings after disclosure. Could it be used if a further order were sought? I know the distinction between criminal proceedings and the making of an order. Is the hon. Gentleman saying that self-incrimination could not lead to further prosecution or the making of a new order?

Bob Ainsworth (Labour, Coventry North East)

I am saying that such evidence could not be used to further a prosecution. I am not saying that evidence gained in a previous confiscation order could not be taken into account in a subsequent confiscation order. Confiscation procedures are separate from criminal procedures that would result in a conviction in the first place or in a conviction being overturned subsequently. It is obviously the defendant's right to seek to overturn the original confiscation.

As for whether subsection (7) allows fines to be taken into account and discounted through confiscation, we must go back to the provisions under clause 6. Let us suppose that, at the original conviction, the court decided to sentence an individual, and subsequently to proceed with confiscation, and, after confiscation, considered whether to impose a fine. Other orders were taken into account in the relevant way under clause 6. Given that we are coming back to reconsideration, it would be inappropriate. Let us suppose that the person was convicted, and, under clause 20, there was no confiscation, but the court then decided to fine the individual. It would have made that decision after a confiscation order had been imposed and taken into account. It is therefore only right to return to that consideration subsequently, look at the fine imposed, and take it into account when deciding on the size of the confiscation.

I do not know what more to say to hon. Gentlemen other than that we believe that it is appropriate that the prosecutor should be allowed to go back in such circumstances, when he can convince the court that there is evidence of an acquisition which, for whatever reason, was not available at the time. In those circumstances, he should seek to confiscate the proceeds of crime. I hope that the hon. Gentlemen will accept that, and support the clause.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I welcome the Minister's statement. The procedure, as clarified, allows the court to re-examine the assets of the guilty on multiple occasions. Can he provide further clarification on the question of finality of proceedings? There is a point at which such finality is undoubtedly wanted, but there must be a consideration of what is proportionate. Many people in my constituency and my city suffer the finality of death from overdoses. If someone is dead from an overdose, the period of supervision of a person who has sold, or been involved in the supply of the drugs responsible for that death should not be too brief. The Minister made the point about not being able to go back more than six years. In those circumstances, we are not going back at all—we are going forward. One can go forward only six years from the date of conviction.

It is not unreasonable that if someone has been convicted of such a serious offence he should be on the equivalent of probation for life. If he decides to turn honest, earn money and so on, there is no difficulty with that, but he must be able to demonstrate that he earned his money honestly. If, subsequently, whether 10, 20 or 30 years down the line, that person suddenly appears to have gained an enormous amount of wealth with no trace whatever, and there is strong suspicion that it is the proceeds of crime, there is no reason why the court should not be able to pursue that person, especially given that many of that person's customers, clients and victims are dead, remain dead, have been dead for some time and will continue to be dead for some time to come.

It is a matter of what is proportionate. Families in my constituency and my city have been grieving for a long time, and will continue to grieve. It will be obscene if a six-year limit allows the person who caused those deaths to ride free after that period.

Bob Ainsworth (Labour, Coventry North East)

Let me potentially make the offence even worse. My hon. Friend is determined to brand me with a Mr. Softy title, so let me dampen my hon. Friend's enthusiasm for multiple reconsiderations. It would be difficult for a prosecutor to go back to the court repeatedly, although he would be allowed to do so, to seek further confiscation. Eyes would widen on each occasion. It would not be an effective tool except in the most extreme circumstances. My hon. Friend may remain of the opinion that we are being soft on such people. In respect of the six-year period, we have little choice but to draw the line for criminal confiscation somewhere.

The only point that I can make in mitigation against the image with which my hon. Friend is determined to brand me is that other provisions in part 5 relate to the potential for civil litigation against an individual who, years and years after a confiscation, comes up with huge amounts of property for which he has no lawful explanation. The agency and director would have to examine whether that person could be pursued under part 5 of the Bill for the civil recovery of those assets. However, I am sure that that does not satisfy my hon. Friend and that he believes that we should go much further.

Nick Hawkins (Conservative, Surrey Heath)

The Minister mentioned the difficulties that he has with the hon. Member for Glasgow, Pollok wishing to brand him a softy. Does the Minister agree that the hon. Gentleman is always keen to attack lawyers? However, his policy of constantly returning to the courts could be implemented only if lawyers brought the applications. The hon. Gentleman seems to believe that only defence lawyers are venal and corrupt, when, of course, the same people prosecute and defend.

Bob Ainsworth (Labour, Coventry North East)

There is a dreadful lack of respect in the Committee, and I do not intend to get involved.

Question put and agreed to.

Clause 20 ordered to stand part of the Bill.

Clause 21 - No order made: reconsideration of benefit

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 88, in page 12, line 33, leave out subsection (2)(b).

It may be due to the hour of the night when I drafted some of the amendments but a re-reading of clause 21 seems to provide reassurance for my anxieties and doubts. However, there is a matter that the Committee should flag up.

We are considering the reconsideration of the benefit. My probing amendment asks what is intended by subsection (2)(b), which states:

``the defendant does not have a criminal lifestyle and has not benefited from his particular criminal conduct''.

Subsection (5) makes it clear that a fresh decision should be based upon a reconsideration of the benefit, rather than whether a person had a criminal lifestyle in the first place, which originally sprang to my mind. We should consider what should happen if a court concluded that a person did not have a criminal lifestyle, but subsequent evidence emerged to indicate that he did. The situation of a defendant who is convicted when the court does not have all information about his previous convictions is not unheard of. I have seen that happen, and observed defendants being convicted when the court was ignorant of their previous convictions.

The definition of a person's criminal lifestyle arises from whether they have committed a particular offence or a series of offences. What would be the situation be if, subsequent to a conviction, it were to emerge that, because the wrong button had been pressed on the police computer, the court—having decided that there was no benefit from that criminal conduct—discovered that the person fell within the general criminal conduct provisions?

Bob Ainsworth (Labour, Coventry North East)

I am pleased that the hon. Gentleman no longer considers that the amendment is relevant.

My understanding is that the point that the hon. Gentleman has raised is not covered in the Bill. Following the conviction that he described, it would not be possible to revisit consideration of whether the proceeds of crime were to be pursued under the assumption procedures. It may be that we ought to examine whether that should be the case since I am not aware of provisions that would allow us to reconsider the assumption provision.

Nick Hawkins (Conservative, Surrey Heath)

I am reluctant to intervene, as my hon. Friend the Member for Beaconsfield has already spoken. However, have the Minister and his officials had an opportunity to consider the phrase ``criminal lifestyle''. Might there be a better phrase? Can the Minister reveal the conclusions that have been drawn about that matter, or is it too soon for him to reply?

Bob Ainsworth (Labour, Coventry North East)

I was waiting for bright ideas from the hon. Gentleman, and other members of the Committee. I thought that they might sit back and reflect on that point during the Christmas break. I am in no rush to settle on a final form of words. I have received several suggested improvements on the phrase ``criminal lifestyle''. The biggest difficulty is how to define the single lifestyle offences and the repeat offences referred to in the Bill, and all of the suggestions made so far fail adequately to address those matters.

With regard to the point made by the hon. Member for Beaconsfield, the record of the individual concerned would have been investigated. It is unlikely that the situation that he described would arise, but he suggested that he was aware of instances when it had arisen, so perhaps we ought to address the matter.

Dominic Grieve (Conservative, Beaconsfield)

I am aware of two such instances. In at least one case, someone was sentenced to a long period of imprisonment. Throughout that period, it was impossible to establish his identity. From the time of his arrest, through his imprisonment and until to his release, the Prison Service and the police did not know who he was. I have also been involved in cases in which I was the defence counsel and in which I discovered, subsequent to conviction and sentencing, that the client had a string of convictions about which both the prosecutor and I were unaware. That was greatly to the client's benefit when sentencing took place. As defence counsel, that was not my responsibility. The egg was on the prosecutor's face—or on the faces of those who supplied him with the information.

Nick Hawkins (Conservative, Surrey Heath)

Will my hon. Friend give way?

Dominic Grieve (Conservative, Beaconsfield)

I cannot give way. I have given way to the Minister.

John McWilliam (Labour, Blaydon)

Order. The Minister gave way to the hon. Member for Beaconsfield.

Bob Ainsworth (Labour, Coventry North East)

The hon. Member for Beaconsfield has proved that there is nowt as strange as life. Let us examine his point.

Nick Hawkins (Conservative, Surrey Heath)

As the Minister is going to consider that point, I shall offer him the example of a case that might, to a lay person, seem as strange as those that were described by my hon. Friend the Member for Beaconsfield. It was a serious case. The defendant's record and connections were serious—so serious that special branch officers were all around the court. The defendant was domiciled in the Republic of Ireland but had faced proceedings for what seemed to be relatively minor offences in United Kingdom courts. That made it difficult for the prosecution to build up a full picture of the defendant's criminal activity, as most of his offences had been committed in the Republic of Ireland and full details could not be obtained from the Gardai. That is another variant of the circumstances described by my hon. Friend.

Bob Ainsworth (Labour, Coventry North East)

Consideration of the amendment that the hon. Member for Beaconsfield has, on reflection, said that he does not want to move is becoming as fascinating as some of the conversations that take place in the Smoking Room late at night. However, we are confined to drinking sparkling water rather than a glass of wine while we consider the matter.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

On a point of order, Mr. McWilliam. Is it in order for the Chair to make clear exactly what we are debating? Is it amendment No. 88, or have we moved on to clause stand part?

John McWilliam (Labour, Blaydon)

We are debating amendment No. 88, and only that.

Dominic Grieve (Conservative, Beaconsfield)

The two are not unrelated, however. The purpose of tabling our probing amendment was to examine what was intended by subsection (2)(b) and whether the intention was that ``criminal lifestyle'' could be revisited. Since it was tabled, it has become apparent to me from reading subsection (5)(a) that it is not intended that that should be so. That—empowering the Minister—raises the question whether we should consider whether it could be revisited in the limited circumstance that I have outlined.

Bob Ainsworth (Labour, Coventry North East)

I am beginning to think that we may be under instruction from the Opposition Whip to keep the debate going. The point has been made, and we should examine it. The issue should be picked up.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am by no means convinced that I should raise this issue at this stage, but everyone else seems to have done so, so why not? Exactly what procedure is intended for bringing evidence of previous convictions before the court? The hon. Member for Beaconsfield makes an important point. I do not know about south of the border, but practice north of the border in marking cases for prosecution was to serve a schedule of previous convictions at that stage, and, generally, to disregard any convictions that were more than 10 years old. That, therefore, made it possible—indeed, it would frequently be the case—that some convictions were not placed before the court in a schedule. That may be appropriate given that a prosecutor might not know when he started proceedings that criminal confiscation proceedings might follow.

Bob Ainsworth (Labour, Coventry North East)

There is no need to reopen the discussion about the definitions applied to the assumption of a criminal lifestyle. The point made by the hon. Member for Beaconsfield was this: the prosecutor may not be aware of a conviction that would trigger that assumption, and, for that reason, it might not be triggered; if the prosecutor had been aware of the conviction, the assumption would have been triggered. The point was, therefore, that we might be missing an opportunity to take into account a general criminal lifestyle. I accept that such circumstances are pretty unusual, but unusual things happen and we should consider the matter. The definition of criminal lifestyle and the triggering of the assumptions have already been discussed.

Dominic Grieve (Conservative, Beaconsfield)

As I said at the outset, this probing amendment was intended to ask whether the provision covers reopening criminal lifestyle. I have satisfied myself by reading the entire clause that it would not. That raises the issue of whether exceptional circumstances might arise, but they would have to be pretty exceptional, because, as the Minister will be aware, I am not a great enthusiast for reopening issues unless that cannot be avoided or real injustice would take place.

Subject to that, and for the reasons that I have given, it was never my intention to press the amendment to a Division, unless the Minister had said something quite extraordinary in reply to my points. I am grateful to him for being willing to consider the issue, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Nick Hawkins (Conservative, Surrey Heath)

The discussion between my hon. Friend the Member for Beaconsfield and the Minister provoked another thought that did not occur when I first read the Bill in the search for possible amendments. It is an appropriate matter to raise in a clause stand part debate. Those of us who have practised in the courts, as well as many lay people, are aware of the operation of the rehabilitation of offenders legislation. The main Act was, I believe, the Rehabilitation of Offenders Act 1974—if I am mistaken on that, no doubt I will be corrected. Many its provisions have been repeated in other legislation. When my hon. Friend the Member for Beaconsfield and the Minister discussed amendment No. 88, I looked briefly at the schedules and other provisions in the Bill for a reference to that Act.

I appreciate that the Minister is unlikely to be able answer the following point on the hoof. However, in considering re-opening matters and previous activities that might be part of a criminal lifestyle, we must question how that reconsideration might interact with the Rehabilitation of Offenders Act 1974. Under that Act, when a conviction becomes spent, it is not taken into account by any subsequent court. We do not oppose the extension of previously existing powers, and, contrary to repeated suggestions from the Government Back Benchers, we do not want to water them down. However, if that means seeking to consider a person's criminal lifestyle—we do not like that phrase—there may be conflict between that reconsideration and the 1974 Act.

I do not expect a comprehensive answer now, but will the Minister and his officials consider the Bill's extension of existing powers and its interaction with the Rehabilitation of Offenders Act, and write to me and other members of the Committee?

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Will my hon. Friend the Minister clarify some points that he made in the clause 20 stand part debate? To some extent, the same issue arises where clause 21 refers to the end of the six-year period. Is it the Minister's understanding that, under clauses 20 and 21, any assets that came to light five years after conviction would then be seized under part 5 if they came to light seven years after the conviction? In those circumstances, will there be no difference in the net result? If that is the case, I am happy with what the Minister has said. If it is not, will make the difference clear?

David Wilshire (Conservative, Spelthorne)

The clause deals with reconsideration of any benefits from crimes. I will not repeat our anxieties about how benefits are considered under the earlier parts of the Bill, although the same worries apply to clause 21. However, I hope the Minister will be persuaded that the clause should stay in the Bill, because it is another way of addressing benefits.

I should like clarification of several matters in clause 21. My understanding of subsection (4)(a) is that if new evidence is available, it can be brought forward. What I find surprising, as a layman, is that the clause does not say ``new evidence'', but refers to

``evidence which was not available to the prosecutor''.

Thus, it is possible that the director may have had evidence that he failed to bring to the attention of the prosecutor, and that raises the question of why the director would withhold information. That could be accidental or deliberate, or it could be for all sorts of reasons. However, that is not the cause of my concern. In clause 20, this clause and the next two clauses, the general thrust of the justification for reopening something that has been closed must be new evidence, if double jeopardy—which we debated before you assumed the Chair, Mr. McWilliam—is not to arise.

I can go along with the argument that says, ``We dealt with it like that, but we have now discovered something different. We must therefore revisit it.'' However, I am worried that subsection (4)(a) does not appear to say that. It seems simply to say that if the prosecutor is given new information, the matter can be reopened. I want the Government to consider making it clear that the matter can be reopened when there is new evidence that was not available originally to the prosecutor, rather than when the information was known but he was not told about it.

Subsection (4)(c) refers to

``general or particular criminal conduct''.

The moment that we talk about general conduct, we start to talk about criminal lifestyles and Christmas coming. Perhaps, afterwards, we will no longer have such debates. Would the new evidence involved be about particular criminal conduct—the original charges that led to the conviction—or could it be about any sort of conduct, whether criminal or related to a criminal lifestyle? If somebody did a trawl and found out something by way of interesting gossip, might that be used rather than particular evidence about a particular crime? I would welcome clarification in that regard.

If I heard the Minister correctly during a previous debate, he said that it was not possible to revisit assumptions. However, under subsection (9), four assumptions can be ignored. As a layman, I am confused about that, because I think that I heard the Minister say that assumptions could not be revisited, yet part of this clause says, ``You will revisit assumptions, and so much so that you will ignore them.'' I am sure that there is an explanation for my confusion, but I would be grateful if the Minister would give it to me.

Subsection (10) seems to say—this may be the layman in me rather than the lawyer—that when the benefits of crime are reconsidered and a new calculation is made, that new calculation cannot arrive at a figure that exceeds the figure calculated under clause 8. If clause 21 says that the matter can be reconsidered, but the figure cannot be greater than the previous figure, all that we are doing is introducing a mechanism for reducing the amount. I should have imagined that the underlying thinking of those who drafted the Bill was that reconsideration was needed in order to increase the figure if new information came to light. Does subsection (10) rule out an increase in the figure, which would mean that it can only be lower, thereby introducing a mechanism for letting the individual concerned pay less? I am sure that hon. Members on both sides would not be comfortable with that.

My final concern is about subsection (11). Again, it would be possible to have the entire debate about clause 20 all over again, and I shall try not to. The subsection seeks to water down the amount that will be paid under an order because of other orders, fines and so on. I suspect that the hon. Member for Glasgow, Pollok and I agree that we should not water it down. The only conclusion that I can draw is that either the hon. Gentleman or I should be nervous that we agree.

Bob Ainsworth (Labour, Coventry North East)

On the point raised by the hon. Member for Surrey Heath (Mr. Hawkins), I will do as he asks and go away to examine the interaction with, and impact on, the Rehabilitation of Offenders Act 1974.

Stephen Hesford (Labour, Wirral West)

Will my hon. Friend consider the earlier point about convictions that are missed? Should that apply more to clause 20 rather than clause 21 since one considers only the benefit? That would put the matter one stage backwards.

Bob Ainsworth (Labour, Coventry North East)

I am not sure that I understand what my hon. Friend said.

Dominic Grieve (Conservative, Beaconsfield)

I understood the hon. Member for Wirral, West (Stephen Hesford). Indeed, his point crossed my mind during discussions. If we are to insert a provision that allows for reconsideration when a court had not received a full record of a person's previous convictions, which might bring him into the category of criminal lifestyle, that might be better done in clause 20 than clause 21. The hon. Gentleman has a point, although it arose to me when I considered clause 21.

Bob Ainsworth (Labour, Coventry North East)

Obviously, if we concluded that there were grounds for including a provision to reopen the triggering of assumptions based on convictions that were not known at the time, we would have to consider where in the Bill it would be appropriate to place that. However, we must decide whether the provision is necessary before we consider how to deal with it. I take the point made by my hon. Friend the Member for Wirral, West on board.

My hon. Friend the Member for Glasgow, Pollok asked for reassurance that subsequently discovered proceeds of crime that could be revisited under these clauses within five years could also be considered for civil recovery after seven years. The answer is yes, although different criteria procedures must be followed. After rehabilitating myself in my hon. Friend's eyes, I must tell him that that would not be possible after 13 years, because there is a 12-year limitation in part 5 of the Bill. I do not want him to think that I have satisfied him entirely.

The hon. Member for Spelthorne asked about justification for reconsiderations. The prosecutor would have to convince the court that reconsideration was justified. The manner in which that was done would reopen procedures in clause 6. The prosecutor would try to convince the court to reconsider the benefit of the defendant's general conduct because there were grounds to trigger the assumptions procedure in clause 6. All that we are doing is applying the procedure in clause 6 to reconsideration. The same procedures will apply and the court must be convinced of the justification for reopening matters.

The hon. Gentleman asked about clause 8 and whether we are simply re-opening matters to reduce benefit. Of course, we are not. We are applying clause 8 to the new procedures to ensure that the revalued benefit, which may be much higher than that originally discovered at the time of conviction, does not go beyond the available amount, as it would not have been allowed to do on the first consideration. The reference to clause 8 will make it certain that the available amount is the ceiling that can be confiscated, not an amount that is well above the assets.

I do not know whether I have answered all the points made by the hon. Member for Spelthorne. If I have not, I am sure that he will question me further.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.

Clause 22 - No order made: reconsideration of benefit

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 94, in page 14, line 18, after `were', insert `now'.

John McWilliam (Labour, Blaydon)

With this it will be convenient to take amendment No. 95, in page 14, line 20, after `amount', insert `originally'.

Dominic Grieve (Conservative, Beaconsfield)

We are about to discuss a minor drafting issue, but one that would improve the clause. Clause 22 explains about the reconsideration of benefit. It states:

``This section applies if . . . a court has made a confiscation order''.

Like other sentences in the Bill, when I first read the next sentence I had to pause. It continues:

``the prosecutor or the Director believes that if the court were to find the amount of the defendant's benefit in pursuance of this section it would exceed the amount found as his benefit for the purposes of the order.''

On the face of it, that provision has a contradictory feel about it, but that can be readily cured by inserting the word ``now'' between ``to'' and ``find'' and the word ``originally'' between ``amount'' and ``found''. The insertion of the word ``original'' between words ``the'' and ``order'' in line 20 would be an alternative way in which to approach the problem.

Nick Hawkins (Conservative, Surrey Heath)

I had not previously spotted the problem, but the position at which my hon. Friend is suggesting to insert the word ``now'' would create a split infinitive. The word ``now'' should be inserted before the word ``to''.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend is right, but inserting the words ``now'' and ``originally'' into the provision would make clear the intention of the clause. I commend the amendment to the Minister and hope that we shall not be told that it would affect the clause, because it would not. Similar amendments could be tabled at other points in the Bill, but the addition of those two words would make it immediately clear what the Bill wants to achieve. Otherwise, we would have to rethink the intention behind the clause. For those reasons, I commend the amendments to the Committee. If the Minister says that he will accept them, but that he would prefer to reword them so that the infinitive is not split, I shall agree immediately.

Bob Ainsworth (Labour, Coventry North East)

Notwithstanding the fact that we are searching for opportunities to accept the ``Grieve No. 2'' amendment for the sake of good will, I fear that I shall upset the hon. Gentleman by saying that one amendment would alter the clause. I do not know whether he is trying to wreak revenge on us for the fact that he is looking after terrorism in the Chamber and looking after criminality in the Committee Corridor. He is being stretched all ways. I am sure that he is doing very well, but there is no need to make us stay up all night to try to fathom whether such an amendment would make any change to the Bill.

The hon. Gentleman described his amendments as drafting amendments. I do not think that amendment No. 94 seems to add anything to the Bill. The hon. Gentleman has demonstrated that he does not think so, either. The amendment would not clarify subsection (1)(b), which is already clear.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has flagged up two issues, the first of which surprises me. Under subsection (1)(b), there has been a previous confiscation order, so the courts should ``now'' find something different. That is, the courts should not ``find something different'' in the abstract, but do it at that time. It seems to me that the word ``now'' is useful. Incidentally, I have noticed that I had put the word in the right place but simply read it out wrongly.

The second issue is the word ``originally'' in amendment No. 95. That word could cause a problem; a better word might be ``previously'', in view of the fact that multiple applications can be made.

John McWilliam (Labour, Blaydon)

Order. Interventions are getting rather long, although I understand the difficulty that the hon. Member for Beaconsfield has experienced. I must make it plain that I know of no precedent in which it was found to be out of order to split infinitives.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman pursues his amendment, but the Bill already makes it clear that subsection (1)(b) applies to the court's decision following an application for revaluation. I am of the view that the amendment does not add to the clarity of the subsection, although I accept that it does not change the subsection.

The hon. Gentleman is right to say that amendment No. 95 would be harmful. We must bear in mind that more than one application may be made. The court may have made a confiscation order after the defendant's conviction, and under clauses 20 or 21 more than one revaluation may have occurred.

Were we to change ``originally'' to ``previous'', the hon. Gentleman—on the face of it—would rule out the harm of amendment No. 95, although I would not like to commit myself to that. We never know what consequences might sneak up on us if I did so. Nevertheless, I am not certain that the amendment would add anything to the Bill, and I hope that the hon. Gentleman will be prepared to withdraw it. I think that the Bill's intentions are clear enough.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

There is little wrong with subsection (1)(b) that could not be cured by some punctuation. We should debate the absence of commas more than anything else. Why does the subsection mention that we must ``find'' the amount of the defendant's benefit, when clause 6 refers to the word, ``deciding''? I know that ``find'' can be a legal term, but in the interests of simplicity and consistency—or if the subsection is to be redrafted—my point should be taken on board.

John McWilliam (Labour, Blaydon)

Order. It is not out of order to move amendments, but it would have been in order to move an amendment inserting punctuation. That has been done before. It would not be in order to insert punctuation at this stage.

Bob Ainsworth (Labour, Coventry North East)

I can speak only to the amendments that are before us. If the hon. Gentleman thinks that he could improve the Bill with punctuation, he should table amendments that we could consider.

With regard to the word ``finding'', investigations take place under clause 6, which is about assessing the benefit. Clause 22 is about reassessment.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Clause 6 uses the word ``decide''. In the interests of consistency, I suggest that we should also use it in clause 22. The word ``decide'' may result in nonsense—rather than ambiguity—as the court can order the defendant to find something, as opposed to the court finding it for itself. In this context, to use ``find'' is inappropriate; to use ``establish'' or ``decide'' would be adequate.

Bob Ainsworth (Labour, Coventry North East)

Let us listen to what the hon. Member for Beaconsfield has to say before we decide whether changes ought to be made.

Dominic Grieve (Conservative, Beaconsfield)

This has been an interesting discussion, and it illustrates the merit of bothering to read the clauses.

I shall, with some regret, withdraw my amendment shortly, but I have been thinking about the matter as the discussion has proceeded. It seems to me that subsection (1)(b) might have developed in the course of our debate. It may be right not to proceed with the insertion of ``now''—regardless of the matter of the split infinitive. However, the Minister should consider incorporating the recommendations of the hon. Member for Orkney and Shetland, and my recommendation about the word ``originally'', so that subsection (1)(b) would state:

``the prosecutor or the Director believes that if the court were to decide the amount of the defendant's benefit in pursuance of this section''—

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Comma.

Dominic Grieve (Conservative, Beaconsfield)

Yes. The rest of subsection (1)(b) would state:

``it would exceed the amount''—

previously—

``found as his benefit for the purposes of the order''.

That collective draft—for which I thank the hon. Member for Orkney and Shetland, and the Minister—is better than the current version. I therefore urge the Minister to have subsection (1)(b) redrafted, so that I can say nice things about him on Report, which would make me very happy. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

David Wilshire (Conservative, Spelthorne)

I have listened to my hon. Friend's reading of the Bill with great care. He should apply to read ``Book at Bedtime'', because if he were to read the Bill, I would get to sleep much more quickly.

I have a number of concerns about clause 22 and I hope that the Minister will address them so that I need not object to the clause. Subsection (1)(b) appears to state that the prosecutor or director would go to the court if it appeared to him that the amount that should be made in the order would exceed the amount that was originally made. I understand why it should normally be left to the defence, and the convicted person, to argue why a reduction should be made. However, there have been cases in which information has been available to prosecuting authorities, the police and similar agencies and when it has served their purpose—I choose my words carefully—to withhold that information from the public gaze. Sometimes, it is many years before the information comes to light, and, when it does, many questions are asked.

There might be occasions when it would occur to the director—or to one of his senior officials or senior prosecutors—that the original amount was excessive, given the information that had subsequently come to light. It would be unfortunate if he were not able to go back to the court and say, ``Look, we are very sorry, but we realise that an honest mistake has been made and it is appropriate for the amount to be reduced.'' The clause would prevent him from doing that. It would prevent him, when he came across an injustice, from putting the matter right in a simple way, and that might leave a convicted criminal and his advisers to dig away in search of information that they did not know existed. I would be interested to hear the Minister's views on that.

Subsection (4)(c) states that it is possible to make reference to things that have been obtained before the original order was made. Am I right in understanding that anything that may have been gained subsequently—even things that arise from the crimes for which a person has been convicted—will not be taken into account? If that is the case, and if it subsequently becomes clear that something else was obtained from the proceeds of a crime—

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock. {**vert_rule**}

Standing Committee B

Clause 22 - Order made: reconsideration of benefit

David Wilshire (Conservative, Spelthorne)

When you listen to or watch a soap opera, one of the things that you need is a résumé of episodes that you have missed.

John McWilliam (Labour, Blaydon)

Order. As one who does not watch soap operas, I need no such thing.

David Wilshire (Conservative, Spelthorne)

I realise that difficulty, Mr. McWilliam, but if we had a different Chairman, I could have reminded him of what I said before I was politely interrupted. However, I will spare you that. I was worried that if a genuine mistake were found by the director or the prosecution services, it would be possible for them to ask for the amount to be reduced rather than increased. That relates to subsection (1). No doubt the Minister will respond in due course.

Subsection (4)(c) states that property that is gained before the review should be taken into account. If the hon. Member for Glasgow, Pollok (Mr. Davidson) was here, we might be in danger of agreeing about the need to tighten up. What is the situation regarding property that is criminally obtained—if that it the correct phrase; I am sure that the Minister knows what I mean—subsequent to the first order if further criminal gain has resulted in new property? I understand that subsection (4) means that that could not be taken into account, but I wonder why. If one wishes to confiscate property that is the proceeds of crime—and I understand that the Minister is interested in general property that is acquired illegally rather than specific property from the crime—why is any property that was criminally obtained subsequent to the first order excluded? There may be the possibility to tighten that up.

Subsection (7)(b) states that the court ``may vary'' what was previously decided. It will be helpful if the Minister confirms that that means that the court could reduce that amount, although the prosecution is required to present only arguments that would increase it. That is the point that I made before lunch. Notwithstanding the constraint on the prosecution, subsection (7) suggests that the court could listen to arguments and decide that the amount should not be increased and that a mistake was made in the first place, so the amount should be reduced. I assume that that is the meaning of ``may vary''.

Subsection (8)(b) refers to the date of the original order. If I read it correctly, as a non-lawyer, I understand that a court may intervene to make a new order or vary the order. Instead of the original dates for appeal periods and cut-off dates, which we discussed on earlier clauses, a new order would restart such time limits. I raise that to make it clear in my mind that if a new order is made, the period of appeal starts again, rather than an appeal being ruled out of time because it was not made within the period of the original order. It would be useful to clear that up.

John McWilliam (Labour, Blaydon)

Order. It would also be helpful if hon. Gentlemen were to ask permission to remove their jackets. If they were to do so, I would gladly grant it, but I have not yet heard anyone seek such permission.

David Wilshire (Conservative, Spelthorne)

It is not often that I apologise on behalf of hon. Members on both sides of the Committee. I foolishly assumed—it shows that I am a non-lawyer—that your generous ruling allowing us to remove our jackets during the previous sitting applied to this sitting, Mr. McWilliam.

John McWilliam (Labour, Blaydon)

Unfortunately, the rule is that it must be done sitting by sitting. The other daft thing about the rule is that it does not apply to hon. Ladies.

David Wilshire (Conservative, Spelthorne)

I shall not go into what might or should apply to hon. Ladies. I shall merely say that if you describe it as a daft rule, Mr. McWilliam, I shall describe it as daft that I forgot to ask your permission. I hope that you will accept my apology and retrospectively grant me permission to leave my jacket where it is. I am sure that other jacketless Members would wish to say the same thing.

Where was I?

George Foulkes (Labour/Co-operative, Carrick, Cumnock and Doon Valley)

Going round in circles.

David Wilshire (Conservative, Spelthorne)

No, I was not going round in circles, I was moving on to subsection (9). It would be potentially dangerous to repeat what I said several times before lunch, but I want to draw the Minister's attention to the fact that we are watering down the powers to raise money and to confiscate by saying, once again, that notwithstanding what the court feels that it should impose, if the convicted person cannot afford it, it will be a lesser amount. I have said several times that that is not a sensible way to proceed. It seems to me that if a court feels that the amount of money that should be taken from somebody is X, then it should be X irrespective. If the person cannot afford it, that is tough luck. The hon. Member for Glasgow, Pollok has arrived just as I am saying something that will be music to his ears.

John McWilliam (Labour, Blaydon)

Order. Unfortunately, it has been music to his ears on rather too many occasions. The rule is that tedious repetition is not allowed. The repetition may be becoming tedious, and the hon. Gentleman has just received a yellow card.

David Wilshire (Conservative, Spelthorne)

Yes, I wondered whether it was tedious, repetitious or both. I was about to move on anyway, so I shall not chance my arm on that. One of the benefits of having more than one Chairman is that the rule is not so rigidly applied. Nevertheless, I was going to leave the matter even before you asked me to do so, Mr. McWilliam.

I want to refer to subsection (11), which I find curious. I am surprised that it has not cropped up in debate before. It states:

``In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.''

I suspect that we all know what that means. However, it seems to me that it leaves the interpretation wide open to abuse. I assume that it means that the court may take account of inflation. Despite what the Chancellor has been saying downstairs, it is highly unlikely that the value of money will increase rather than decrease, irrespective of which party is in power. The provision seems to say that the court may take account of inflation between the time when the first order is made and the time when the second is made.

Mark Field (Conservative, Cities of London and Westminster)

I wonder whether my hon. Friend has given any thought to the idea that subsection (11) might also take account of changes in the exchange rate, given that a significant amount of money may have been sequestrated, having come from abroad, or may be overseas currency that has been subject to a confiscation order under clause 6.

David Wilshire (Conservative, Spelthorne)

In so far as it is possible to go down that route before you try to stop me, Mr. McWilliam, my hon. Friend is right. I had considered that that was one of the issues. However, it seems to me that a reference to a change in the value of money should, in legal terms, be much more specific than that general statement allows. If the Minister confirms my supposition—that it means that if inflation has taken its toll, one must compare the real value of the original order with the current value of the subsequent one—the Bill should say so.

On the basis that politicians of all political persuasions are adept at using the statistics that suit their purpose best, simply referring to inflation will not necessarily ensure that one arrives at a factual figure for the absolute percentage increase that one should apply. If my supposition is correct, the Bill could usefully include an explanation of how the change in the value of money should be calculated. Should it be with reference to the retail prices index or other statistics, given that there are statistics, damned statistics and lies and we do not want a court to go down that avenue? My hon. Friend the Member for Cities of London and Westminster (Mr. Field) said that not only are we talking about the value of money—I assume that the Bill refers to the changes in the value of sterling—but it is appropriate for someone of my political persuasion—

John McWilliam (Labour, Blaydon)

Order. I have given the hon. Gentleman some leeway, but if he starts arguing the pound against the euro, what happens if it changes and whether or not it should change, he will be out of order.

David Wilshire (Conservative, Spelthorne)

You are very perceptive, Mr. McWilliam. I was about to ask what would be the exchange rate to the euro in the event of it coming into force. However, given that you have ruled that I must not say that, I would not dream of so doing. Nevertheless, irrespective of whether it is appropriate to debate the euro, there is a genuine point to be made in that when a Bill asserts what account should be taken of the differences in value, irrespective of party political banter, it should contain a legal definition of what is meant and how it is to be calculated.

Bob Ainsworth (Labour, Coventry North East)

I thought that the hon. Gentleman would never stop. His first point was whether there should not be a requirement on the prosecutor to discover—if that were the case—that there may have been an overcalculation of the benefit and make that known to the court so that the amount could be reduced.

We must remember that the benefit resulted originally from a statement by the prosecutor or the director and the opportunity was given to the defendant to rebut the statement to show that the items involved were not the proceeds of crime. I cannot envisage circumstances in which the prosecutor will discover under the clause that there has been an overcalculation of the benefit. Therefore, the hon. Gentleman's argument is not necessary.

The defendant is given the opportunity to seek a postponement if he is unable to show the origins of the properties. Under usual circumstances, that postponement can extend for up to two years and, in exceptional circumstances, it can go beyond that. However, we should not be writing into the Bill a requirement that the defendant can return at any time after six years, having managed to make a case that the items that were thought to be the proceeds of crime at the time were not. The process would be wide open to abuse. We should stick with the Bill and the ability of the defendant to seek postponement so that he can prove the origins of the property.

The hon. Gentleman referred to further criminal activities that were not connected with the original conviction that took place after the original hearing, and asked why the benefits or proceeds of those activities could not be confiscated, too. The Bill relates to criminal confiscation of the proceeds of the crime for which the person was convicted. If further crime were committed after the original conviction, it is a matter for that conviction to take into account the criminal gains that were made. It is not for the prosecutor to return to a previous conviction and attempt to rope in the gains made by subsequent crime.

The hon. Gentleman asked whether the reference in subsection (7)(b) to the court's ability to vary the order allows the court to reduce the order. It does not. At the time of the original decision there is an opportunity to prove the benefit of the criminal activity and the available amount. The purpose of the clause is not to allow the court to vary the order downwards, but to allow the prosecutor to return and show the benefits that were originally assessed to be inadequate.

David Wilshire (Conservative, Spelthorne)

I am grateful to the Minister for having made that clear. There is an argument of principle about whether the court should be able to vary the order downwards. However, if as the Minister says, the Government intend that that should not be possible, would it not be better if the wording of the clause referred to the ability to ``increase'' or ``vary upwards''? That would avoid doubt by putting into words what the Minister has just said. As the Bill stands, however, ``vary'' could be taken to mean upwards or downwards.

Bob Ainsworth (Labour, Coventry North East)

The subsection relates to circumstances in which

``the defendant's benefit exceeds the amount found as his benefit for the purposes of the confiscation order''.

Paragraph (b) states that

``if it exceeds the amount required to be paid under the confiscation order''

the court

``may vary the order by substituting for the amount required to be paid such amount as it believes is just.''

Therefore, if the amount is increased but the court believes that to take the entire increase into account would be unjust, it may choose not to take into account the entire increase. The Bill does not allow the court to conclude that the benefits were lower than those in the original confiscation order, and nor should it.

As I said, at the time of the original confiscation, the defendant can put his case and show that his property was not the proceeds of crime. He has the opportunity to request a postponement in order to do that, of up to two years in normal circumstances and, in exceptional circumstances, beyond two years. That should provide him with the opportunity to prove his case. I do not understand why we should include yet another provision for that.

In discussing subsection (9), the hon. Gentleman suggests that we are being too soft and allowing people unnecessarily to keep the proceeds of crime. The provisions in subsection (9), like those in earlier clauses, are included in order to avoid double counting. The court goes through a process when it originally confiscates the proceeds of crime. It discounts other orders that may have been made subsequently. It may have imposed a fine after the confiscation order was made. It would be wrong if, in revisiting the benefits of the proceeds of crime, the court did not take into account any other orders that the defendant had been required to meet, and the fine imposed on him. We would effectively be confiscating the proceeds of crime twice, through either other orders or the fine imposed at the original confiscation hearing.

Nick Hawkins (Conservative, Surrey Heath)

I am sorry to break the Minister's flow on that point, and I do not want to be difficult by referring back to his previous response to my hon. Friend the Member for Spelthorne (Mr. Wilshire). However, since he discussed subsection 7(b), I have been examining it carefully, and I believe that he is mistaken. Nothing in the words ``may vary the order'' and put in such amount

``as it believes is just''

constrains the direction of the variation. I hope that the Minister and his officials will look again at subsection (7)(b), because the words at the beginning of paragraph (b) do not have the effect that the Minister says they do. The court is given the power to ``vary the order'' by

``such amount as it believes is just''.

The court is not constrained to use its discretion to vary the order in only one direction.

Bob Ainsworth (Labour, Coventry North East)

We must read all of subsection (7), and not just paragraph (b). It states:

``If the amount found under the new calculation of the defendant's benefit exceeds the amount found as his benefit for the purposes of the confiscation order the court—

(a) must make a new calculation . . . and

(b) if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.''

The subsection applies in instances in which the recalculation increases the amount of benefit from the original confiscation, and it allows the court to decide that, if circumstances arise, it might not be just to increase the confiscation order to take in the whole of that increase. I do not believe that the subsection allows the court to decrease the amount from that prescribed in the original confiscation order.

Nick Hawkins (Conservative, Surrey Heath)

The Minister is right to say that we must consider the whole of subsection (7), which prescribes the only circumstances in which the court may vary the amount found as benefit. If the court is given the power to vary the order, and to decide that the amount to be paid is just, its final decision is not constrained, whatever circumstances led it to make the calculation. That is my point.

Bob Ainsworth (Labour, Coventry North East)

The power given to the court begins only when the defendant's benefit exceeds the amount that must be paid. In any case, the clause is not intended to allow reconsideration of whether the amount should be decreased.

The hon. Members for Orkney and Shetland (Mr. Carmichael) and for Beaconsfield (Mr. Grieve) have shown their combined expertise at redrafting on their feet. I do not know why we bother to employ parliamentary counsel when Opposition Members are so talented. I do not believe that the clause allows courts to reconsider whether the amount should be decreased.

Dominic Grieve (Conservative, Beaconsfield)

Despite the combined capacities of the hon. Member for Orkney and Shetland and myself, we do not pick up on every point. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) made a good point. It is clearly implicit in subsection (7) that an upward variation is intended, but there is a provision that the variation need not extend to the new amount: it could be somewhere in between, if that is considered just. He is right to say that, on the face of it, subsection (7) could be read as stating that if the amount under the new calculation exceeds the amount found as the defendant's benefit, the court has the unfettered power to vary the amount and move it up or down. That was a good point that the Minister might bear in mind, because no one in the Committee expects the amount to be adjusted downwards.

Bob Ainsworth (Labour, Coventry North East)

It is good to hear that no Committee member would expect that result. I wonder whether the hon. Gentleman has the agreement of all Opposition Members on that, including the hon. Member for Cities of London and Westminster, who has come up with some interesting views in Committee.

I am more than happy to look over the clause with my officials to check that it says what I believe it to say, and that a downward variation cannot arise.

Nick Hawkins (Conservative, Surrey Heath)

That is helpful, but the Minister should understand that my hon. Friend the Member for Beaconsfield and I are only trying to clarify the subsection. My hon. Friend the Member for Spelthorne made a good point. We want the clause to do precisely what the Minister wants it to do. We are not trying to weaken subsection (7)—we want to make sure that it operates correctly—but we genuinely believe that it contains a trigger and a power. The trigger makes the way in which it should operate implicit, but not explicit. The power is clearly unfettered—it is in the words.

Bob Ainsworth (Labour, Coventry North East)

On this occasion, I absolutely and unequivocally accept the hon. Gentleman's reassurance that he has no intention of changing, softening or weakening the Bill. He is merely trying to ensure that it works as intended.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

I see a flying pig.

Bob Ainsworth (Labour, Coventry North East)

I am not sure whether that was dissent from the Back Benches. [Interruption.]

John McWilliam (Labour, Blaydon)

Order. There is a lot of conversation going on, but we are trying to listen to the Minister. Hon. Members who wish to have private conversations may do so outside the Room.

Bob Ainsworth (Labour, Coventry North East)

Thank you, Mr. McWilliam, for your protection from my hon. Friend the Member for Glasgow, Pollok. It is much appreciated.

Subsection (11) states:

``In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.''

After requiring the court to take into account the original proceeds of crime and any interest and benefit that may have accrued from investment, it would be strange and very unfair to not encourage it to take account of changes in the value of money. There are two sides of the coin when updating the decision with regard to benefits that the defendant may have accrued through the investment of his proceeds and the downside of time having elapsed.

David Wilshire (Conservative, Spelthorne)

I can well understand why, having bowled the Minister some tricky and technical questions, the way in which I posed the last one may have slipped his mind. I do not disagree with him. I accept that there should be adjustment. However, the simple reference to a change is inadequate. The way in which it is taken into account and method used to calculate inflation should be in the Bill. I did not disagree with the principle, but said that the Bill was insufficiently clear to achieve the Minister's intention.

Bob Ainsworth (Labour, Coventry North East)

It might be difficult to spell out in the Bill exactly what the court must do to calculate the revaluation. I will consider what the hon. Gentleman said, but it would be difficult to lay down a set of proceedings that the court must follow when calculating movements in the value of money. The court must try to be just when updating the decision, and subsection (11) provides for that. I will consider whether there is a way of spelling out the calculation that would not lead to injustices that no hon. Member wants.

Mark Field (Conservative, Cities of London and Westminster)

Does the Minister not agree that we have already examined investments, which would clearly be caught? Likewise, the Bill contains a provision on interest. What does the Minister envisage would be caught by subsection (11)? No doubt, when examining investment, there would be a freeze on various guilty defendants' accounts on which a confiscation order was made. I appreciate the time that would be taken between the freezing of an account and a final judgment and reconsideration of benefit. We may say that interest has accrued over a matter of months or years on a defined account, and there may have been a range of investments that, dare I say—

John McWilliam (Labour, Blaydon)

Order. The hon. Gentleman has dared to say too much. That was a very long intervention.

Bob Ainsworth (Labour, Coventry North East)

We are considering an application that is made for a review order to reconsider benefits because evidence has come to light to show that the benefits of the proceeds of crime were higher than originally discovered. Who knows what the convicted person has managed to do with that money in the preceding period? We are talking about moneys that arose as a result of the original conviction, but are only discovered later. We are trying to take into account all the proceeds of crime—but no more. To do that, we ought to be able to take into account what the defendant has been able to do with that money to appreciate its value—and if it has depreciated, we should take that into account.

If we cannot do both those things, we are in danger of committing a great injustice. As the hon. Member for Spelthorne has pointed out, subsection (11) enables us, in the overwhelming majority of cases, to take into account the depreciation that might have occurred. However, any depreciation will have been considerably less since the Labour party came to power, than it was under the preceding Conservative Government.

I have tried to cover all the points that have been raised, and I hope that the explanations that I have given have been satisfactory.

Question put and agreed to.

Clause 22 ordered to stand part of the Bill.

Clause 23 ordered to stand part of the Bill.

Clause 24 - Inadequacy of available amount:

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 96, in, page16, line 44, leave out `the' and insert `a'.

This is the simplest of amendments. When I was reading through the clause, it occurred to me that the word ``the'' would be better rendered as ``a''. Although it is a straightforward matter, it struck me as odd, because I read ``the recipient'' as implying an individual, when, in this context, it clearly refers to anyone who happens to be a recipient.

Bob Ainsworth (Labour, Coventry North East)

I am sure that the hon. Gentleman has tabled the amendment in an attempt to get his own back for all the hard work that he is having to do, in Committee and in the House.

If the Government could have discerned any difference that would be made by changing the definite article to the indefinite article, we would be happy to accept the amendment as an improvement to the Bill. However, there is no discernable difference, and therefore there is no justification or reason to accept the amendment.

I am unsure to what extent I ought to go along with this attempt to spin out the Committee's consideration of the matter. However, we have read the alteration that the amendment proposes time and again, and we do not think it means anything, and I do not know what more I can say.

Dominic Grieve (Conservative, Beaconsfield)

I am not trying to spin out the Committee's proceedings. We have only taken about 30 seconds over the matter, and I do not intend to take much longer. I think that the version that I have proposed is better English. If we do not take the opportunity to flag up such points, we will not, in the long term, obtain changes to the way in which legislation is drafted. Although, I think that ``a'' is better than ``the'', I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

David Wilshire (Conservative, Spelthorne)

I want the Government to clarify several substantial issues concerning the clause.

As the clause touches on matters that I have previously raised, I will do my best to be neither tedious nor repetitious. However, on this occasion the key issue that I have raised has been amplified, and there are also questions that need to be answered that have not been raised in previous debates.

The clause brings into focus what happens if the available amount is less than the court decides. With regard to that, I will not explain again why I believe we could be tougher. Suffice it to say that the clause makes it crystal clear that, where there are insufficient funds to meet an order, the court is being invited to reduce that order and I continue to question whether we should be doing that. However, I have said enough on that subject.

Subsection (4) addresses the distribution of available assets, with regard to bankruptcy or winding up. That is an important matter. As I understand the situation with bankruptcy or other such matters, the Inland Revenue has a prior claim, as does Customs and Excise, on the assets that are realisable, and distribution to other creditors takes place afterwards. Again, I am a layman, and that is how I have always understood the law. If I am wrong, perhaps someone will put me right. It would be helpful if the Government were to say what priority such claims for confiscation orders would have. If they are prior claims over general creditors, would they come before or be ranked equal with the Inland Revenue and Customs and Excise? That information would be useful not only to us but to the courts and those seeking to collect the money.

In the light of the priority given to a claim when somebody goes bankrupt, will the Minister reassure us that by making reference to the issue of bankruptcy, we are not pointing to a loophole in the legislation? Before I became a Member of Parliament, I was in business for long enough to know that some people found going bankrupt a useful loophole when they faced mounting debts. Surprise, surprise, after not too long a period, if I was one of those who was owed the money, they would cease to be bankrupt, and before I knew where I was, they were back in business again. If that were to apply to the criminal fraternity, what would happen after the process of someone being declared bankrupt, the order being reviewed, and the amount owing being reduced? Surprise, surprise, not all that long later, the person would return like phoenix from the ashes and have his bankruptcy discharged. Has the court lost the power to go back and confiscate that money, or is it written off? If it is written off, that is wrong. Will the Minister assure me that notwithstanding bankruptcy and winding up, if those assets become available again at some stage in the future, the full amount of the original order should be sought and collected?

My other concern relates to subsection (5), which refers to inadequacy. It states that if the court is to make a judgment on how much the amount should be reduced by, it should disregard things wholly or partly. My worry is that if something is wholly to be disregarded, it is the entire amount. However, if it is partly as a result of something, will a calculation be made as to what percentage ``partly'' means? That gives rise to a sense of injustice. If something is partly to be disregarded, one can pursue the whole amount nevertheless, but if one partly disregards things, should not one partly disregard the amount collected by the same percentage? Will the Minister comment on that?

Bob Ainsworth (Labour, Coventry North East)

The confiscation system is designed to ensure that orders are not made for more than the value of the property available to justify them. However, it may happen that the realisable property, if assessed by the court at the defendant's request, loses its value before the order is fully satisfied. The clause therefore enables the court to reduce the amount payable. The clause is based on existing legislation with one important exception, which is worth flagging up at this point. We are transferring the functions currently dealt with by the High Court to the Crown court, making it the single venue for confiscatory procedures. As is well known, we have already made some general arguments in favour of the change. The change of venue from the High Court to the Crown court is particularly valuable. One of the weaknesses of the current system is that the Crown court makes the confiscation order, which is then enforced by a magistrates court. The result is that the Crown court loses touch with the order.

The hon. Gentleman raised several points that he has already mentioned. He raised again the issue of orders that have been placed on the defendant, which he believes should not be outside the confiscation proceedings. When orders have been made on the defendant for payment of fines, those fines must be excluded from the proceedings. Otherwise, we would be double counting and claiming back more than the proceeds of crime.

With regard to bankruptcy, the hon. Gentleman is absolutely right. If bankruptcy proceedings were to take precedence over confiscation proceedings—for example, in respect of property—long after a restraint order had been put on the property, a considerable number of people could come up with bankruptcy proceedings to prevent confiscation. When confiscatory proceedings have started, bankruptcy cannot then take precedence. It will not be possible to suggest that bankruptcy proceedings that started before confiscation proceedings should be disregarded and overridden by a confiscation procedure that starts after that date. I do not know how that could be achieved, but we are trying to close the potential loophole that he referred to by ensuring that bankruptcy proceedings cannot be used to provide a way out for people facing confiscation orders.

I do not know if I have satisfied the hon. Gentleman. He said before that he does not accept my points. I do not know what more I can say to satisfy him.

David Wilshire (Conservative, Spelthorne)

I am grateful to the Minister for his comments on bankruptcy. Can he clarify my query about where the priority of any claim, in respect of bankruptcy, would lie? Would it be before or after the Inland Revenue, or with the general creditors?

Bob Ainsworth (Labour, Coventry North East)

We are not changing the bankruptcy procedures, and the hierarchy within them will remain the same. The procedure that starts first is the one that takes precedence. If confiscation proceedings have commenced, they take precedence over bankruptcy proceedings. If bankruptcy proceedings have started before any confiscation proceedings have begun, the bankruptcy proceedings take precedence.

David Wilshire (Conservative, Spelthorne)

My understanding is that when bankruptcy proceedings are initiated, there is a pecking order that determines which creditors will get the money. It would be helpful to know where in the pecking order a particular creditor would come.

Bob Ainsworth (Labour, Coventry North East)

Bankruptcy proceedings must be settled before any confiscation can take place. We are not changing the order of creditors within the bankruptcy proceedings.

Mark Field (Conservative, Cities of London and Westminster)

I fully appreciate that, when bankruptcy proceedings have preceded a confiscation order, there should be preferred creditors—for example banks and mortgage companies—who would claim some of the assets. Is the Minister saying that non-secured creditors would hold themselves in a preferable position to the state in that regard?

Bob Ainsworth (Labour, Coventry North East)

The clause is not changing the bankruptcy proceedings. Those that have already commenced take precedence over confiscation proceedings. After the bankruptcy proceedings have been settled, the claim for compensation can be pursued. We are not proposing to unpick bankruptcy proceedings that have already commenced.

Mark Field (Conservative, Cities of London and Westminster)

My hon. Friend's concern is that there will be a significantly diminished pool if such a view is taken. If you have bankruptcy proceedings under way, unless it is preferred that creditors should have the first bite at the cherry, should there not be some variation? Surely, under confiscation proceedings, the state will face a significantly diminished pool or will the variation be on the whole sum? Will preferred creditors receive a share that will take account of the variation or will they receive their full amount in advance?

John McWilliam (Labour, Blaydon)

Order. I assure the hon. Gentleman that, although I took my wife Christmas shopping in New York at the weekend, I do not have bankruptcy proceedings under way.

Bob Ainsworth (Labour, Coventry North East)

I am sorry, but I am not sure on what the hon. Gentleman is inviting me to agree with. If a defendant goes bankrupt before confiscation proceedings can be taken against him, the ability to confiscate any of the proceeds of crime will be reduced. That is self-evident. I do not know what more I can say.

David Wilshire (Conservative, Spelthorne)

I assure the Minister that I am not spinning out the matter. A real loophole is opening up, and I should be grateful if he would concentrate carefully on whether I might be right. He said that, in the event of bankruptcy proceedings being commenced before the order is made, they would flow and the order would come into effect on what is left thereafter. If that is so, and someone thinks that he will be charged or is part way through a court case and has a nasty feeling that he is about to lose, it would pay him to file for bankruptcy in attempt to get some of the money that could be confiscated shifted to a creditor where he might have an interest.

John McWilliam (Labour, Blaydon)

Order. I have been double-checking. We are dealing with variation orders. Bankruptcy is dealt with under part 9. If the hon. Gentleman wants to debate bankruptcy in detail, he should wait until we reach that part of the Bill. I understand the linkage difficulty, but that is in relation only to a variation of the order.

David Wilshire (Conservative, Spelthorne)

I am grateful for your advice, Mr. McWilliam. In the circumstances, I am sure that I have given the Minister due notice of such matters and by the time we discuss that clause, no doubt he will have an answer to my questions.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is surely right that, if someone is being pursued on a charge for which there may be substantial proceeds of crime, it may be in his interests to commence bankruptcy proceedings to frustrate the confiscation. There are other ways in which to dispose of the assets before the finalisation of the charges, but that is one of the reasons why we introduced the concept of restraint to the start of the proceedings. If restraint is applied before bankruptcy proceedings have commenced, that takes precedent. I do not know how, and in what circumstances, we could justly disregard bankruptcy proceedings that had already commenced ahead of any other proceedings that had even been started against the defendant. We have done what we can to close any possible loopholes, and we cannot go further than that.

Ian Davidson (Labour/Co-operative, Glasgow Pollok)

Notwithstanding the fact that the provision goes wider than bankruptcies, I should be grateful if the Minister could clarify the circumstances in which the court has reduced the amount to be paid by the guilty person. If it were found subsequently that a scam was being worked and that assets were being concealed, surely the court or prosecutor would still be able to return again to claw back money that had been evaded the first time by false declarations about bankruptcy or limited means.

Bob Ainsworth (Labour, Coventry North East)

As we have exposed in previous confiscations, in theory the prosecutor can return within a six-year period if he thinks that the benefit was not calculated correctly and he can convince the court that there should be a revaluation of the benefit. That would also apply to the circumstances outlined by my hon. Friend the Member for Pollok.

Nick Hawkins (Conservative, Surrey Heath)

I may have solved a potential problem for the Minister. He will note that, with one significant difference, the last two lines of subsection (3) are identical to those under clause 22(7), which my hon. Friends the Members for Spelthorne and for Beaconsfield and I were worried may be ambiguous. Subsection (3) states:

``it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.''

Substituting the word ``smaller'' with the word ``larger'' would solve the problem to which we referred when debating clause 22. Because the same words are used in the provisions, albeit with the addition of ``smaller'', there is no reason why we should not add the word ``larger'' under clause 22(7) and thus achieve the clarification that we wanted when the Minister kindly accepted that we were not trying to water down the Bill. I hope that my suggestion has been helpful to the Minister and his officials.

Question put and agreed to.

Clause 24 ordered to stand part of the Bill.

Clause 25 - Inadequacy of available amount:

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 107, in page17, line 9, leave out paragraph (c).

John McWilliam (Labour, Blaydon)

With this it will be convenient to take the following amendments: No. 108, in page 17, line 24, leave out paragraph (b).

No. 109, in page 17, line 25, leave out subsection (5).

Dominic Grieve (Conservative, Beaconsfield)

Clause 25 concerns the circumstances when the court has made a confiscation order. If the order was calculated in respect of a currency other than sterling at the time when it was made, and the confiscation order was an attempt by the court to give a sterling valuation to the foreign currency concerned, what would happen if subsequently, due to fluctuations in the exchange rate, insufficient money was realised to reach the sterling equivalent?

In addition, clause 25 provides for

``any reason specified by the Secretary of State by order.''

I wish to flag up first with the Minister that it would be helpful for the purposes of our deliberations if he could say what contingency that provision is likely to cover. I am bound to say that, apart from the problem of the fluctuations in currency, I cannot immediately think of one. However, if stocks and shares are involved and it takes some time for them to be realised, a similar problem may arise.

It is noteworthy that the procedure is limited to in imbalance of less than £1,000, although it is also provided that the Secretary of State may, by order, vary that amount from time to time at his discretion. We may be creating an unnecessary bureaucratic problem for ourselves. Why do we need to limit the amount that remains to be paid to £1,000 in such a way? If the value of stocks and shares or the sterling value of a foreign currency is calculated, and it turns out that, after a time has elapsed, that value cannot be met, the court would have to be satisfied that the inadequacy in the amount was due to a ``specified reason'', and not to the defendant's procrastination.

If the court decides that the defendant has realised the assets with reasonable speed, why limit ourselves to £1,000? Why not delete all reference to £1,000, as my amendment suggests? That removes the need for the Secretary of State to vary the amount by order. We could then have a simpler procedure. Where is the potential injustice or disadvantage to the director in that?

The Minister may have many explanations, but in some circumstances, huge sums of money might have to be confiscated. Indeed, the Minister hopes that we will go after the Mr. Bigs. A fluctuation of £1,000 in currency values or the value of stocks and shares could easily occur, and if it did, what procedure would we adopt? Would we have to go back to court for a complete recalculation or would there be an appeal by one of the parties? That seems a ponderous process if the problem is entirely a question of currency exchange rates or share valuation. All that would be required would be for the court to be persuaded that currency and share issues were the trigger that had caused the inadequacy of the available amount.

Will the Minister justify subsection (1)(c) and consider whether the Bill would be improved by its deletion. The Minister nodded in response to my comments about subsection (4)(b), which mentions

``any reason specified by the Secretary of State by order.''

Amendment No. 108, which would delete subsection (4)(b), is in a different category from amendments Nos. 107 and 109. Provided that the Minister can reassure me that he is thinking of stock and share values, I shall be far less concerned about amendment No. 108 than the others. If subsection (4)(b) relates to the change in the value of stocks and shares, why not state that?

Nick Hawkins (Conservative, Surrey Heath)

I want to add to the point made by my hon. Friend the Member for Beaconsfield, with which I agree. The Minister could talk a little about the link between the amount referred to in subsection (1)(c) and the amount about which the hon. Member for Orkney and Shetland will speak when we reach amendment No. 66 to clause 26. Liberal Democrat Members suggest that in clause 26(1)(c), the figure of £50 should be changed to £1,000. I do not wish to anticipate the hon. Member for Orkney and Shetland, but perhaps one reason why he chose £1,000 is because it is the amount that the Government have used in clause 25(1)(c). It would be silly if the Minister did not explain why that figure is used at that point.

John McWilliam (Labour, Blaydon)

Order. We cannot anticipate clause 26, because we have not yet reached it.

Nick Hawkins (Conservative, Surrey Heath)

I am simply trying to point out that there is a link between the two amounts. It would be helpful if the Minister were to turn his mind to that when he responds to my hon. Friend.

The rest of the debate is in Hansard.