Criminal Justice Bill [H.L.] (Hansard, 26 July 1993)

HL Deb 26 July 1993 vol 548 cc1024-114 1024

§ 7.13 p.m.

The Minister of State, Home Office (Earl Ferrers)
My Lords, I beg to move that the Commons amendments to the Criminal Justice Bill be now considered.
It might be helpful if I were to say one or two words by way of introduction. The Marshalled List of amendments to the Criminal Justice Bill may strike your Lordships as a pretty formidable tome of amendments. So it strikes me.
Before we come to the consideration of the details of individual amendments, I thought that it would be only courteous to your Lordships if I were to give some slight explanation of the substantial quantity of amendments which are now in front of your Lordships for consideration. The first thing to point out is that the changes which are made to the Bill as it originally left your Lordships' House do not significantly alter its aims or intentions. In fact, they ensure that those aims and intentions are properly fulfilled.
The amendments to Part II, which relates to drugs, and to Part III, which relates to general crime, are in the main technical amendments to clarify and improve the clauses concerned. I hope that your Lordships will welcome that.
The new Part IIIA, which deals with terrorist finances, does not introduce new concepts. What it does is to ensure that the law on the laundering and confiscation of terrorist funds is in line with the law on the laundering and confiscation of the proceeds of drug trafficking and other crimes.
The amendments to the insider dealing provisions, which my noble friend Lord Caithness will address, came about as a result of further extensive consultation with those who are primarily affected. I hope that your Lordships will welcome the changes as helpful improvements.
As your Lordships will know, the opportunity was taken in the Bill while it was in another place to put right difficulties which had arisen over the implementation of certain parts of the Criminal Justice Act 1991. These appear principally in Amendments Nos. 143 and 144, which will appear before Clause 42 of the Bill. There has been a great deal of concern over the 1991 Act and we shall come to the amendments which affect that in due course.
However, the Government thought it correct to take the opportunity of this Bill to amend the fining and sentencing provisions of the Criminal Justice Act 1991.
Moved, That the Commons amendments be now considered.—(Earl Ferrers.)

§ Lord McIntosh of Haringey
My Lords, I rise to thank the Minister for the introduction that he has given to the consideration of the Commons amendments. As the House will know, it is very 1025 difficult to pin any more general statement on the specific amendments that are before us. The Minister said that the 69 pages of amendments which have come from another place do not affect the scope of the Bill. I find that very difficult to accept in the light of the fact that the Long Title is to be amended by no fewer than seven Commons amendments (Nos. 201 to 207).
The Minister will be well aware that when it became clear that the Government intended to use the consideration of the Bill in Committee in the other place in the way that they have done—in other words, substantially to alter the scope as well as the detail of the Bill—my honourable friends saw it as an opportunity to attempt to extend the scope of the Bill very considerably from that which came before your Lordships at the end of last year. In particular, they were concerned that a criminal justice Bill with the kind of scope that is now envisaged could have covered much more effectively issues of crime prevention, delay in the courts, juvenile crime, consistency in sentencing—particularly I draw attention to the urgent need for a sentencing council and that matter will come up in the consideration of amendments today—help to victims of crime, consideration of the mental state of the defendant and better pre-sentencing reports. There are many other issues which could have been included in the Bill once it had become clear that the Government would not restrict their consideration to the very limited matters which were originally in the Long Title to the Bill.
Quite apart from the consideration of the specific amendments, we have to say that since the Government were flexible in other ways and performed a U-turn about a number of issues in the 1991 Criminal Justice Act, the opportunity could and should have been taken to deal with a number of other matters which are still defective in our criminal justice system and which it would have been entirely appropriate and quicker to have dealt with by accepting the amendments put down by my honourable friends in another place. Therefore it is with a sense of disappointment that I repeat my thanks to the Minister for his introduction to these amendments.

§ Lord Harris of Greenwich
My Lords, I want to say only a few words about this Bill. There are 69 pages of Commons amendments to a Bill of fewer than 50 clauses. That is the first point.
Secondly, as the noble Earl indicated, slightly bleakly if I may say so, we are invited today to become involved in a major re-writing of the 1991 Criminal Justice Act. The clauses to which I refer have in fact been drastically changed and the decision to change them was taken only seven months after the 1991 Act came into force in respect of those issues: one being the sentencing powers of the court and the other matter relating to fines.
I do not feel that this is a sensible way to legislate. It is quite extraordinary that, with the ink on the statute book still wet, we have been asked to change radically what Parliament originally agreed.
Thirdly, the issues involving insider dealing, with which the Treasury is primarily involved, are worthy of some comment. As noble Lords will know, no 1026 proper consultative arrangements were made before the Bill was published. Therefore the consultations have taken place since the publication of the Bill; hence, many of the amendments.
I should like to draw the attention of the noble Earl to the report of the Hansard Society Commission on the legislative process. His noble friend Lord Rippon was the chairman, the noble and learned Lord, Lord Browne-Wilkinson, was one of the members and a former Permanent Secretary to the Home Office was a third member. In the summary of conclusions, under "Consultation", the report reads: The overwhelming impression from the evidence is that many of those most directly affected are deeply dissatisfied with the extent, nature, timing and conduct of consultation on Bills as at present practised … the Government must heed this criticism and seek to meet it". The next paragraphs in which the noble Earl will be interested are numbered 6 and 7. Paragraph 6 states: Although some Bills are inevitably required in a hurry, getting a Bill right should always have priority over passing it quickly, and we recommend that the Government should publicly endorse this policy". Paragraph 7 states: The Government should make every effort to get Bills in a form fit for enactment, without major alteration, before they are presented to Parliament; in the Government's review of the legislative process, this should be a first and overriding objective". Those principles seem to me highly desirable. I hope in the future that they may be put into practice.

§ Lord Windlesham
My Lords, I add my thanks to the noble Earl for affording this House the opportunity to make some general comments on the amendments before we discuss them in detail.
The legislative progress on this measure has been unorthodox, to say the least. The Bill left the House in December of last year with 40 clauses. It was before the Commons, apparently a Bill of low priority, for several months until the then Home Secretary…Kenneth Clarke…decided in the most remarkable turnabout (because of criticism from judicial sources and the magistracy, magnified by the tabloid press) to amend and in some cases to repeal provisions of the Criminal Justice Act 1991 which had been under consideration for a period of two or three years and intensively discussed by both Houses of Parliament:. He decided to do that in an immediate way made possible, it turned out, by the view taken by the House authorities in another place differing from the view taken by the authorities in this House, that the Bill, which hitherto had been confined to financial offences and the proceeds of crime—drug trafficking, insider dealing, money laundering and so forth…could be expanded in this dramatic way to alter the powers of the courts and the treatment of offenders.
Tonight the 207 government amendments are before us for a short period of time. if it is necessary to do so the House will return tomorrow for further consideration of those Commons amendments. The high probability is that they will then go on the statute book with the minimum of consideration and effectively no opportunity for this House to exercise its revising role.
I endorse what was said by the noble Lord, Lord Harris, in reading the extract from the Hansard 1027 Society Commission report, which is reflected in every classic text referring to the making of statute law. I shall certainly do nothing to make the Government's task more difficult this evening or tomorrow. But it is appropriate to put on record at the outset of this debate our reservations about the way in which the proposals have been put before the House.

Earl Ferrers
My Lords, I can understand your Lordships' concern that we are being asked to consider a number of amendments to the Bill which did not come into the frame when the Bill was before your Lordships. It does not surprise me that the noble Lord, Lord McIntosh, described it as a "U-turn"; the noble Lord, Lord Harris, said that after seven months we were changing the way that we had proposed to proceed and that did not seem to him to be a sensible way to legislate. My noble friend Lord Windlesham said that it was a remarkable "turnabout".
The Criminal Justice Act was in practice and in operation and was an Act that we felt was correct in the circumstances of the day. For example, unit fines was a way of making sure that there was uniformity in sentencing throughout the country. For better or worse, for reasons which your Lordships will understand, that created a furore both from the public and the magistrates in regard to the sentences. We felt, being a listening, caring government, that we should take countenance of what was being said and take the opportunity of this Bill to alter the situation.
The difficulty is that if one takes no notice of the row that goes on, everyone says that the Government are obdurate and do not take notice. If one takes notice and tries to address the matter one is accused of vacillating, making U-turns and no one knows where they are. I accept that that is a criticism that your Lordships wallow in making. I understand and do not despise that. Were I in a similar position, I should probably take pleasure in doing the same. The fact is that throughout the country there was concern about sentencing and the Government took the opportunity of this Bill to alter the position as soon as possible.
The noble Lord, Lord McIntosh. was concerned that that did not happen within your Lordships' House. Your Lordships may recall that the authorities of this House took a relatively narrow view of the scope of the Bill when it was before us last year. The view taken by the authorities in another place was somewhat different. The Government decided therefore to take the opportunity afforded by that view to respond in a positive way to pressure for amendment to be made to the fining and sentencing provisions of the Criminal Justice Act 1991.

§ Lord McIntosh of Haringey
My Lords, it does not fall within appropriate comment by a Minister of the Crown to refer to the view taken by the authorities, either of this House or another place. If the Government or any one else had wished to introduce amèndments to extend the Long Title of the Bill in your Lordships' House, as they did in the Commons, I do not believe that the authorities of the House 1028 would have been in a position to deny them that opportunity. It is a political decision, not an administrative one.

Earl Ferrers
My Lords, the noble Lord is not quite right. Different procedures operate within the two Houses. It is not a question of altering the Long Title of the Bill; it is a question of amendments which come within the ambit of the Bill. We did not make the alteration in your Lordships' House for the reasons which I gave. When it was in another place the opportunity was presented to do so and the Government felt that it was appropriate to respond to the anxieties being expressed by incorporating the adjustments into the Bill when it was in another place. That was done and it is now for your Lordships to approve those adjustments.
I do not pretend that it is anything but an unusual procedure. But in the circumstances I hope that your Lordships will agree that it is acceptable and reasonable.
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ [The page and line refer to [ Bill 104 ] as first printed in the Commons. ]

§ 1 Clause 2, page 2, line 39, leave out from '(1)' to 'For' in line 41.

§ 2 Page 3, line 1, leave out subsection (3) and insert:

§ '(2) For the purpose of determining whether or not a particular event is a relevant event in relation to a Group A offence, any question as to where it occurred is to be disregarded.

§ (3) A person may be guilty of a Group A offence if any of the events which are relevant events in relation to the offence occurred in England and Wales.'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2. These are simply drafting amendments, which are intended to make the effect of Clause 2 more readily apparent. It became clear during the Committee stage in another place that not everyone understood it, although as far as I recall this was not a handicap which your Lordships experienced. These amendments will not add to the Bill or change the meaning of the clause. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. I and 2.—(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 3 Clause 8, page 6, line 44, leave out '("the specified period")'.

§ 4 Page 7, line 4, after 'period' insert 'under subsection (1) above'.

§ 5 Page 7, line 6, leave out 'when taken'.

§ 6 Page 7, line 7, leave out 'has' and insert 'have'.

§ 7 Page 7, line 11, leave out `on which the defendant was convicted' and insert 'of conviction'.

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§ 8 Page 7, line 17, after `above' insert 'for such period as it may specify'.

§ 9 Page 7, line 26, after '(6)' insert 'Unless the court is satisfied that there are exceptional circumstances,'.

§ 10 Page 8, line 6, leave out paragraph (b).

§ 11 Page 8, line 12, at end insert:

§ '(11) In this section "the date of conviction" means—

(a) the date on which the defendant was convicted, or
(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions.'.

§ 12 Clause 10, page 8, line 36, after 'Act', insert 'or applies to the court under section 4A, 5A, 5B or 5C of this Act'.

§ 13 Page 9, line 29, leave out 'the court may direct' and insert 'may be prescribed by rules of court or as the court may direct'.

§ 14 Page 9, line 35, after 'Act' insert 'or has applied to the court under section 5A, 5B or 5C of this Act'.

§ 15 Page 9, line 38, leave out 'that section' and insert 'section 1'.

§ 16 Page 10, line 14, leave out 'the court may direct' and insert 'may be prescribed by rules of court or as the court may direct'.

§ 17 Clause 11, page 10, line 25, leave out from 'provision' to end of line 31 and insert '—

(a) for the giving of notice of any application under this section; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.'.

§ 18 Clause 12, page 10, line 32, leave out 'section' and insert 'sections'.

§ 19 Page 10, line 34, leave out from beginning to end of line 19 on page 11 and insert:

§ "'Reconsideration of case where court has not proceeded under section 1.

§ 5A.—(1) This section applies where the defendant has appeared before the Crown Court to be sentenced in respect of one or more drug trafficking offences but the court has not proceeded under section 1 of this Act.

§ (2) If the prosecutor has evidence—

(a) which was not available to him when the defendant appeared to be sentenced (and accordingly was not considered by the court), but
(b) which the prosecutor believes would have led the court to determine that the defendant had benefited from drug trafficking if—
1. (i) the prosecutor had asked the court to proceed under section 1 of this Act, and
2. (ii) the evidence had been considered by the court,

he may apply to the Crown Court for it to consider the evidence.

§ (3) The court shall proceed under section 1 of this Act if, having considered the evidence, it is satisfied that it is appropriate to do so.

§ (4) In considering whether it is appropriate to proceed under section 1, the court shall have regard to all the circumstances of the case.

§ (5) Where, having decided to proceed under section 1, the court proposes to make a confiscation order against the defendant, it shall order the payment of such amount as it thinks just in all the circumstances of the case.

§ (6) In considering the circumstances of any case the court shall have regard, in particular, to the amount of any fine imposed on the defendant in respect of the offence or offences in question.

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§ (7) Where the court is proceeding under section 1 of this Act, by virtue of this section, subsection (4) of that section shall have effect as if the words "before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned" were omitted.

§ (8) The court may take into account any payment or other reward received by the defendant on or after the date of conviction, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

§ (9) In considering any evidence under this section which relates to any payment or reward to which subsection (8) above applies, the court shall not make the assumptions which would otherwise be required by section 2 of this Act.

§ (10) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date of conviction.

§ (11) In this section "the date of conviction" means—

(a) the date on which the defendant was convicted, or
(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions.

§ Re-assessment of whether defendant has benefited from drug trafficking.

§ 5B.—(I) This section applies where the court has made a determination ("the section 1(2) determination") under section 1(2) of this Act that the defendant has not benefited from drug trafficking.

§ (2) If the prosecutor has evidence—

(a) which was not considered by the court in making the section 1(2) determination, but
(b) which the prosecutor believes would have led the court to determine that the defendant had benefited from drug trafficking if it had been considered by the court,

he may apply to the Crown Court for it to consider that evidence.

§ (3) If, having considered the evidence, the court is satisfied that it would have determined that the defendant had benefited from drug trafficking if that evidence had been available to it, the court—

(a) shall—
1. (i) make a fresh determination under subsection (2) of section 1 of this Act; and
2. (ii) make a determination under subsection (4) of that section of the amount to be recovered by virtue of that section; and
(b) may make an order under that section.

§ (4) Where the court is proceeding under section 1 of this Act, by virtue of this section, subsection (4) of that section shall have effect as if the words "before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned" were omitted.

§ (5) The court may take into account any payment or other reward received by the defendant on or after the date of the section 1(2) determination, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

§ (6) In considering any evidence under this section which relates to any payment or reward to which subsection (5) above applies, the court shall not make the assumptions which would otherwise be required by section 2 of this Act.

§ (7) Where the High Court—

(a) has been asked to proceed under section 4A of this Act in relation to a defendant who has absconded, but
(b) has decided not to make a confiscation order against him,

this section shall not apply at any time while he remains an absconder.

§ (8) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with—

(a) the date on which the defendant was convicted; or
(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions.

§ Revised assessment of proceeds of drug trafficking.

§ 5C.—(1) This section applies where the court has made a determination under section 1(4) of this Act of the amount to be recovered in a particular case by virtue of that section ("the current section 1(4) determination").

§ (2) Where the prosecutor is of the opinion that the real value of the defendant's proceeds of drug trafficking was greater than their assessed value, the prosecutor may apply to the Crown Court for the evidence on which the prosecutor has formed his opinion to be considered by the court.

§ (3) In subsection (2) above—

§ "assessed value" means the value of the defendant's proceeds of drug trafficking as assessed by the court under section 4(1) of this Act; and

§ "real value" means the value of the defendant's proceeds of drug trafficking which took place—

(a) in the period by reference to which the current section 1(4) determination was made; or
(b) in any earlier period.

§ (4) If, having considered the evidence, the court is satisfied that the real value of the defendant's proceeds of drug trafficking is greater than their assessed value (whether because the real value was higher at the time of the current section 1(4) determination than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination under subsection (4) of section 1 of this Act of the amount to be recovered by virtue of that section.

§ (5) Where the court is proceeding under section 1 of this Act, by virtue of this section, subsection (4) of that section shall have effect as if the words "before sentencing or otherwise dealing with him in respect of the offence or, as the case may be, any of the offences concerned" were omitted.

§ (6) Any determination under section 1(4) of this Act by virtue of this section shall be by reference to the amount that might be realised at the time when the determination is made.

§ (7) For any determination under section 1(4) of this Act by virtue of this section, section 2(5) of this Act shall not apply in relation to any of the defendant's proceeds of drug trafficking taken into account in respect of the current section 1(4) determination.

§ (8) In relation to any such determination—

(a) sections 3(4) (a), 4(2) and 5(7) of this Act shall have effect as if for "confiscation order" there were substituted "determination";
(b) section 4(3) of this Act shall have effect as if for "confiscation order is made" there were substituted "determination is made"; and
(c) section 5(3) of this Act shall have effect as if for "a confiscation order is made against the defendant" there were substituted "of the determination".

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§ (9) The court may take into account any payment or other reward received by the defendant on or after the date of the current section 1(4) determination, but only if the prosecutor shows that it was received by the defendant in connection with drug trafficking carried on by the defendant or another on or before that date.

§ (10) In considering any evidence under this section which relates to any payment or reward to which subsection (9) above applies, the court shall not make the assumptions which would otherwise be required by section 2 of this Act.

§ (11) If, as a result of making the fresh determination required by subsection (4) above, the amount to be recovered exceeds the amount set by the current section 1(4) determination, the court may substitute for the amount to be recovered under the confiscation order which was made by reference to the current section 1(4) determination such greater amount as it thinks just in all the circumstances of the case.

§ (12) Where the court varies a confiscation order under subsection (11) above it shall substitute for the term of imprisonment or of detention fixed under section 31(2) of the Powers of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a longer term determined in accordance with that section (as it has effect by virtue of section 6 of this Act) in respect of the greater amount substituted under subsection (11) above.

§ (13) Subsection (12) above shall apply only if the effect of the substitution is to increase the maximum period applicable in relation to the order under section 31(3A) of the Act of 1973.

§ (14) Where a confiscation order has been made in relation to any defendant by virtue of section 4A of this Act, this section shall not apply at any time while he is an absconder.

§ (15) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with—

(a) the date on which the defendant was convicted; or
(b) where he appeared to be sentenced in respect of more than one conviction, and those convictions were not all on the same date, the date of the latest of those convictions."'.

§ 20 Clause 13, page 11, line 28, leave out subsection (2) and insert:

§ '(2) Section 7 of the Act of 1986 (cases in which restraint orders and charging orders may be made) shall be amended as set out in subsections (3) to (5).

§ (3) The following subsection shall be substituted for subsection (1)—

§ "(1) The powers conferred on the High Court by sections 8(1) and 9(1) of this Act are exercisable where—

(a) proceedings have been instituted in England and Wales against the defendant for a drug trafficking offence or an application has been made by the prosecutor in respect of the defendant under section 16 of the Criminal Justice (International Co-operation) Act 1990 (increase in realisable property) or section 4A, 5A, 5B or 5C of this Act,
(b) the proceedings have not, or the application has not, been concluded, and
(c) the court is satisfied that there is reasonable cause to believe—
1. (i) in the case of an application under section 5C of this Act or section 16 of the Act of 1990, that the court will be satisfied as mentioned in section 5C(4) of this Act or, as the case may be, section 16(2) of the Act of 1990, or
2. (ii) in any other case, that the defendant has benefited from drug trafficking.".

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§ (4) The following subsection shall be substituted for subsection (2)—

§ "(2) Those powers are also exercisable where—

(a) the court is satisfied that, whether by the laying of an information or otherwise, a person is to be charged with a drug trafficking offence or that an application of a kind mentioned in subsection (1) (a) above is to be made in respect of the defendant, and
(b) the court is also satisfied as mentioned in subsection (1) (c) above.".

§ (5) The following subsections shall be added at the end—

§ "(5) Where the court has made an order under section 8(1) or 9(1) of this Act in relation to a proposed application by virtue of subsection (2) above, the court shall discharge the order if the application is not made within such time as the court considers reasonable.

§ (6) The court shall not exercise powers under section 8(1) or 9(1) of this Act, by virtue of subsection (1) above, if it is satisfied that—

(a) there has been undue delay in continuing the proceedings or application in question; or
(b) the prosecutor does not intend to proceed.".

§ (6) In section 8 of the Act of 1986 (restraint orders), the following subsection shall be substituted for subsection (5)—

§ "(5) A restraint order—

(a) may be discharged or varied in relation to any property, and
(b) shall be discharged on the conclusion of the proceedings or of the application in question.".

§ (7) In section 9 of the Act of 1986 (charging orders), the following subsection shall be substituted for subsection (7)—

§ "(7) In relation to a charging order, the court—

(a) may make an order discharging or varying it, and
(b) shall make an order discharging it—
1. (i) on the conclusion of the proceedings or of the application in question, or
2. (ii) on payment into court of the amount payment of which is secured by the charge.".

§ (8) In section 11 of the Act of 1986 (realisation of property), the following subsection shall be substituted for subsection (1)—

§ "(1) Where a confiscation order—

(a) has been made under this Act,
(b) is not satisfied, and
(c) is not subject to appeal,

the High Court or a county court may, on an application by the prosecutor, exercise the powers conferred by subsections (2) to (6) below.".

§ (9) In section 15 of the Act of 1986 (bankruptcy of defendant), the following shall be substituted for paragraphs (a) and (b) of subsection (6)—

§ "(a) no order shall be made under section 339 or 423 of that Act (avoidance of certain transactions) in respect of the making of the gift at any time when—

(i) proceedings for a drug trafficking offence have been instituted against him and have not been concluded;
(ii) an application has been made in respect of the defendant under section 4A, 5A, 5B or 5C of this Act or section 16 of the Criminal Justice (International Co-operation) Act 1990 and has not been concluded; or
(iii) property of the person to whom the gift was made is subject to a restraint order or charging order; and

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§ (b) any order made under section 339 or 423 after the conclusion of the proceedings or of the application shall take into account any realisation under this Act of property held by the person to whom the gift was made.".

§ (10) In section 16 of the Act of 1986 (sequestration in Scotland), the following shall be substituted for paragraphs (a) and (b) of subsection (6)—

§ "(a) no decree shall be granted under section 34 or 36 of that Act (gratuitous alienations and unfair preferences) in respect of the making of the gift at any time when—

(i) proceedings for a drug trafficking offence have been instituted against him and have not been concluded;
(ii) an application has been made in respect of the defendant under section 4A, 5A, 5B or 5C of this Act or section 16 of the Criminal Justice (International Co-operation) Act 1990 and has not been concluded; or
(iii) property of the person to whom the gift was made is subject to a restraint order or charging order; and

§ (b) any decree made under section 34 or 36 after the conclusion of the proceedings or of the application shall take into account any realisation under this Act of property held by a person to whom the gift was made.".

§ (11) In section 38 of the Act of 1986 (interpretation), the following subsections shall be substituted for subsection (12)—

§ "(12) Proceedings for a drug trafficking offence are concluded—

(a) when the defendant is acquitted on all counts;
(b) if he is convicted on one or more counts, but the court decides not to make a confiscation order against him, when it makes that decision; or
(c) if a confiscation order is made against him in those proceedings, when the order is satisfied.

§ (12A) An application under section 4A, 5A or 5B of this Act is concluded—

(a) if the court decides not to make a confiscation order against the defendant, when it makes that decision; or
(b) if a confiscation order is made against him as a result of that application, when the order is satisfied.

§ (12B) An application under section 16 of the Criminal Justice (International Co-operation) Act 1990 (increase in realisable property) or section 5C of this Act is concluded—

(a) if the court decides not to vary the confiscation order in question, when it makes that decision; or
(b) if the court varies the confiscation order as a result of the application, when the order is satisfied.

§ (12C) For the purposes of this Act, a confiscation order is satisfied when no amount is due under it.

§ (12D) For the purposes of sections 15 and 16 of this Act, a confiscation order is also satisfied when the defendant in respect of whom it was made has served a term of imprisonment or detention in default of payment of the amount due under the order.".'.

§ 21 Clause 14, page 11, line 37, leave out 'section' and insert 'sections'.

§ 22 Page 11, line 38, after 'Act' insert '1986'.

§ 23 Page 12, line 16, leave out 'section 2(2)' and insert 'sections 2(2) and 3(1D), (2) and (3)'.

§ 24 Page 12, leave out lines 21 to 28.

§ 25 Page 12, line 33, at end insert:

§ 'Effect of conviction where High Court has acted under section 4A.

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§ 4B.—(1) Where the High Court has made a confiscation order by virtue of section 4A of this Act, the Crown Court shall, in respect of the offence or any of the offences concerned—

(a) take account of the order before—
1. (i) imposing any fine on him, or
2. (ii) making any order involving any payment by him, or
3. (iii) making any order under section 27 of the Misuse of Drugs Act 1971 (forfeiture orders) or section 43 of the Powers of Criminal Courts Act 1973 (deprivation orders), and
(b) subject to paragraph (a) above, leave the order out of account in determining the appropriate sentence or other manner of dealing with the defendant.

§ (2) Where the High Court has made a confiscation order by virtue of section 4A of this Act and the defendant subsequently appears before the Crown Court to be sentenced in respect of one or more of the offences concerned, section 1(1) of this Act shall not apply so far as his appearance is in respect of that offence or those offences.'.

§ 26 Page 12, line 33, at end insert:

§ '(2) In section 6 of the Act of 1986 (application of procedure for enforcing fines), in subsection (6), after the words "made by", where they first occur, there shall be inserted "the High Court, by virtue of section 4A of this Act, or by".

§ (3) The following subsection shall be added at the end of section 6 of the Act of 1986—

§ "(8) Where the High Court makes a confiscation order by virtue of section 4A of this Act in relation to a defendant who has died, subsection (1) above shall be read as referring only to sections 31(1) and 32(1) of the Act of 1973."'.

§ 27 Clause 15, page 12, line 34, leave out 'section' and insert 'sections'.

§ 28 Page 12, line 37, leave out 'in the exercise of its powers under' and insert 'by virtue of'.

§ 29 Page 13, line 3, at end insert:

§ '() Rules of court may make provision—

(a) for the giving of notice of any application under this section; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.'.

§ 30 Page 13, line 5, leave out 'Secretary of State' and insert 'Lord Chancellor'.

§ 31 Page 13, line 10, at end insert:

§ 'Power to discharge confiscation order and order compensation where absconder returns.

§ 19B.—(1) This section applies where—

(a) the High Court has made a confiscation order by virtue of section 4A(4) of this Act in relation to an absconder,
(b) the defendant has ceased to be an absconder, and
(c) section 19A of this Act does not apply.

§ (2) The High Court may, on the application of the defendant, cancel the confiscation order if it is satisfied that—

(a) there has been undue delay in continuing the proceedings in respect of which the power under section 4A(4) of this Act was exercised; or
(b) the prosecutor does not intend to proceed with the prosecution.

1036

§ (3) Where the High Court cancels a confiscation order under this section it may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.

§ (4) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.

§ (5) Rules of court may make provision—

(a) for the giving of notice of any application under this section; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.

§ (6) Any payment of compensation under this section shall be made by the Lord Chancellor out of money provided by Parliament.

§ (7) Where the court cancels a confiscation order under this section it may make such consequential or incidental order as it considers appropriate in connection with the cancellation.

§ Variation of confiscation orders made by virtue of section 4A.

§ 19C.—(1) This section applies where—

(a) the High Court has made a confiscation order by virtue of section 4A(4) of this Act, and
(b) the defendant has ceased to be an absconder.

§ (2) If the defendant alleges that—

(a) the value of his proceeds of drug trafficking in the period by reference to which the determination in question was made (the "original value"), or
(b) the amount that might have been realised at the time the confiscation order was made,

was less than the amount ordered to be paid under the confiscation order, he may apply to the High Court for it to consider his evidence.

§ (3) If, having considered that evidence, the court is satisfied that the defendant's allegation is correct it—

(a) shall make a fresh determination under subsection (4) of section 1 of this Act, and
(b) may, if it considers it just in all the circumstances, vary the amount to be recovered under the confiscation order.

§ (4) For any determination under section 1 of this Act by virtue of this section, section 2(5) of this Act shall not apply in relation to any of the defendant's proceeds of drug trafficking taken into account in determining the original value.

§ (5) Where the court varies a confiscation order under this section—

(a) it shall substitute for the term of imprisonment or of detention fixed under section 31(2) of the Powers of Criminal Courts Act 1973 in respect of the amount to be recovered under the order a shorter term determined in accordance with that section (as it has effect by virtue of section 6 of this Act) in respect of the lesser amount; and
(b) on the application of a person who held property which was realisable property, it may order compensation to be paid to the applicant if—
1. (i) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and
2. (ii) having regard to all the circumstances of the case, the court considers it to be appropriate.

§ (6) The amount of compensation to be paid under this section shall be such as the court considers just in all the circumstances of the case.

§ (7) Rules of court may make provision— 1037

(a) for the giving of notice of any application under this section; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this section to be given an opportunity to make representations to the court.

§ (8) Any payment of compensation under this section shall be made by the Lord Chancellor out of money provided by Parliament.

§ (9) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the confiscation order was made.'.

§ 32 Clause 16, page 13, line 12, after 'following' insert 'section'.

§ 33 Page 13, line 18, leave out 'that property or has possession or the use of it' and insert 'or uses that property or has possession of it'.

§ 34 Page 13, line 21, leave out 'the property' and insert 'or used the property or had possession of it'.

§ 35 Page 13, line 23, leave out from 'above' to end of line 26 and insert'—

(a) a person acquires property for inadequate consideration if the value of the consideration is significantly less than the value of the property; and
(b) a person uses or has possession of property for inadequate consideration if the value of the consideration is significantly less than the value of his use or possession of the property.'.

§ 36 Page 13, line 38, leave out from first 'by' to end of line 40 and insert 'statute or otherwise; and'.

§ 37 Page 14, line 4, leave out 'subsection (5) above' and insert 'this section'.

§ 38 Clause 17, page 14, line 44, leave out 'that property or has possession or the use of it' and insert 'or uses that property or has possession of it'.

§ 39 Page 14, line 47, leave out 'the property' and insert 'or used the property or had possession of it'.

§ 40 Page 15, line 1, leave out from 'above' to end of line 4 and insert—

(a) a person acquires property for inadequate consideration if the value of the consideration is significantly less than the value of the property; and
(b) a person uses or has possession of property for inadequate consideration if the value of the consideration is significantly less than the value of his use or possession of the property.'.

§ 41 Page 15, line 18, leave out from first 'by' to end of line 20 and insert 'statute or otherwise; and'.

§ 42 Page 15, line 31, leave out 'subsection (5) above' and insert 'this section'.

§ 43 Clause 18, page 16, line 32, leave out subsection (2) and insert:

§ '(2) Subsection (1) above does not make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.'.

§ 44 Page 16, line 40, after 'constable' insert'—

§ (a)'.

§ 45 Page 16, line 42, after 'laundering,' insert 'or

§ (b) any information or other matter on which that suspicion or belief is based,'.

§ 46 Page 16, line 43, leave out from first 'by' to end of line 45 and insert 'statute or otherwise'.

§ 47 Page 17, line 8, at end insert:

§ '(5A) A disclosure to which subsection (5) above applies shall not be treated as a breach of any restriction imposed by statute or otherwise.'.

§ 48 Page 17, line 19, leave out from 'Wales' to end of line 23.

§ 49 Page 17, line 26, at end insert:

1038

§ '() For the purposes of this section, any information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated, or given, to him—

(a) by, or by a representative of, a client of his in connection with the giving by the adviser of legal advice to the client;
(b) by, or by a representative of, a person seeking legal advice from the adviser; or
(c) by any person—
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ () No information or other matter shall be treated as coming to a professional legal adviser in privileged circumstances if it is communicated or given with a view to furthering any criminal purpose.'.

§ 50 Page 17, line 35, leave out from 'if' to end of line 4 on page 18, and insert—

(a) he knows or suspects that a constable is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted into drug money laundering, and
(b) he discloses to any other person information or any other matter which is likely to prejudice that investigation, or proposed investigation.

§ (1A) A person is guilty of an offence if—

(a) he knows or suspects that a disclosure ("the disclosure") has been made to a constable under section 23A, 24 or 26B of this Act, and
(b) he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

§ (1B) A person is guilty of an offence if—

(a) he knows or suspects that a disclosure of a kind mentioned in section 23A(8), 24(4A) or 26B(5) of this Act ("the disclosure") has been made, and
(b) he discloses to any person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

§ (2) Nothing in subsections (1) to (1B) above makes it an offence for a professional legal adviser to disclose any information or other matter—

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or
(b) to any person—
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ (2A) Subsection (2) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.'.

§ 51 Page 18, line 6, leave out 'this section' and insert 'subsection (1), (1A) or (1B) above'.

§ 52 Page 18, line 8, leave out 'subsection (1) above' and insert 'that subsection'.

§ 53 Page 18, line 9, leave out from 'laundering"' to end of line I11 and insert 'has the same meaning as in section 26B of this Act'.

§ 54 Page 18, line 27, leave out from '(a)' to end of line 29 and insert 'for the word "contract" there shall be substituted "statute or otherwise".'.

§ 55 Clause 19, page 19, line 6, leave out from 'not' to end of line 10 and insert 'make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.'.

§ 56 Page 19, line 16, after 'commissioned', insert '—(a)'.

§ 57 Page 19, line 17, after 'laundering,' insert 'or

1039

§ (b) any information or other matter on which that suspicion or belief is based,'.

§ 58 Page 19, line 19, leave out from first 'by' to end of line 20 and insert 'statute or otherwise'.

§ 59 Page 19, line 28, at end insert:

§ '(5A) A disclosure to which subsection (5) above applies shall not be treated as a breach of any restriction imposed by statute or otherwise.'.

§ 60 Page 19, line 39, at end insert:

§ '() For the purposes of this section, any information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated, or given, to him—

(a) by, or by a representative of, a client of his in connection with the giving by the adviser of legal advice to the client;
(b) by, or by a representative of, a person seeking legal advice from the adviser; or
(c) by any person—
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ 61 Page 19, line 48, leave out from 'if to end of line 21 on page 20 and insert '—

(a) he knows or suspects that a constable or a person commissioned by the Commissioners of Customs and Excise is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted into drug money laundering within the meaning of subsections (6) and (7) of section 43A of this Act; and
(b) he discloses to any other person information or any other matter which is likely to prejudice that investigation, or proposed investigation.

§ (1A) A person is guilty of an offence if—

(a) he knows or suspects that a disclosure has been made to a constable, or a person so commissioned, under section 42A, 43 or 43A of this Act; and
(b) he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

§ (1B) A person is guilty of an offence if—

(a) he knows or suspects that a disclosure of a kind mentioned in section 42A(8), 43(4A) or 43A(5) of this Act has been made; and
(b) he discloses to any person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

§ (2) Nothing in subsections (1) to (1B) above makes it an offence for a professional legal adviser to disclose any information or other matter—

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or
(b) to any person—
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ (2A) Subsection (2) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.'.

§ 62 Page 20, line 23, leave out 'this section' and insert 'subsection (1), (1A) or (1B) above'.

§ 63 Page 20, line 25, leave out 'subsection (1) above' and insert 'that subsection'.

§ 64 Page 20, line 46, leave out from '(3)' to end of line 48 and insert 'for the word "contract" there shall he substituted "statute or otherwise"'.

1040

§ 65 Clause 20, page 22, line 43, leave out 'an officer' and insert 'a person'.

§ 66 Page 23, line 20, leave out from beginning to 'An' in line 24 and insert:

§ '(2) In section 24A of the Drug Trafficking Offences Act 1986 (recognition and enforcement of certain orders), the following shall be substituted for subsection (6)—

§ "(6)'.

§ 67 Page 23, line 24, leave out 'made'.

§ 68 Page 23, line 27, leave out subsection (3) and insert:

§ '(3) The same subsection as is inserted in section 24A of the Act of 1986 by subsection (2) shall be inserted in—

(a) section 25 of that Act (but in substitution for subsection (4));
(b) section 26 of that Act (but in substitution for subsection (5));
(c) section 29 of the Criminal Justice (Scotland) Act 1987 (but in substitution for subsection (4));
(d) section 30 of the Act of 1987 (but in substitution for subsection (5));
(e) section 94 of the Criminal Justice Act 1988 (but in substitution for subsection (4));
(f) section 95 of the Act of 1988 (but in substitution for subsection (3));
(g) section 96 of the Act of 1988 (but in substitution for subsection (5));
(h) section 9 of the Criminal Justice (International Co-operation) Act 1990 (but in substitution for subsection (5)).'.

§ 69 After Clause 21, insert the following clause:

§ Enforcement of Northern Ireland orders: drug trafficking

§ '.—(1) In section 25 of the Drug Trafficking Offences Act 1986 (enforcement of Northern Ireland orders), in subsection (1). for "19" there shall be substituted "18" and the following subsection shall be inserted after subsection (3)—

§ "(3A) An Order in Council under this section may, in particular, provide for section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply in relation to such orders as may be prescribed by the Order.".

§ (2) In section 29 of the Criminal Justice (Scotland) Act 1987 (enforcement of Northern Ireland orders), the following subsection shall be inserted after subsection (3)—

§ 70 Page 24, line 8, leave out '11'.

§ 71 Page 24, line 8, after '19' insert '(2) (b) (i)'.

§ 72 After Clause 23, insert the following clause:

§ Appeal against order forfeiting drug trafficking cash

§ '.—(1) The following sections shall be inserted in the Criminal Justice (International Co-operation) Act 1990, after section 26—

§ "Appeal against section 26 order.

§ 26A.—(1) This section applies where an order for the forfeiture of cash ("the forfeiture order") is made under section 26 above by a magistrates' court.

§ (2) Any party to the proceedings in which the forfeiture order is made (other than the applicant for the order) may, before the end of the period of 30 days beginning with the date on which it is made, appeal to the Crown Court or, in Northern Ireland, to a county court.

1041

§ (3) An appeal under this section shall be by way of a rehearing.

§ (4) On an application made by the appellant to a magistrates' court at any time, that court may order the release of so much of the cash to which the forfeiture order relates as it considers appropriate to enable him to meet his legal expenses in connection with the appeal.

§ (5) The court hearing an appeal under this section may make such order as it considers appropriate.

§ (6) If it upholds the appeal, the court may order the release of the cash, or (as the case may be) the remaining cash, together with any accrued interest.

§ (7) Section 26(3) applies in relation to a rehearing on an appeal under this section as it applies to proceedings under section 26.

§ Appeal against section 26 order: Scotland.

§ 26B. Any party to proceedings in which an order for the forfeiture of cash is made by the sheriff under section 26 above may appeal against the order to the Court of Session.".

§ (2) The Act of 1990 shall be further amended as follows.

§ (3) In section 26 (forfeiture of drug trafficking cash), after subsection (3) there shall be inserted the following subsection—

§ "(4) Proceedings on an application under this section to the sheriff shall be civil proceedings.".

§ (4) In section 28 (procedure), the words "or appeals" shall be inserted after the word "applications" in each place where it occurs in subsection (2).

§ (5) In section 30 (forfeited cash to be paid into the Consolidated Fund), the following subsection shall be added at the end—

§ "(3) Subsection (2) above does not apply—

(a) where an appeal is made under section 26A or 26B above, before the appeal is determined or otherwise disposed of; and
(b) in any other case—
1. (i) where the forfeiture was ordered by a magistrates' court, before the end of the period of 30 days mentioned in section 26A(2); or
2. (ii) where the forfeiture was ordered by the sheriff, before the end of any period within which, in accordance with rules of court, an appeal under section 26B must be made.".

§ (6) The amendments made by this section apply only in relation to orders under section 26 of the Act of 1990 made on or after the date on which this section comes into force.'.

§ 73 After Clause 23, insert the following clause:

§ Disclosure of information etc. received in privileged circumstances

§ '.—(1) In section 31 of the Drug Trafficking Offences Act 1986 (offence of prejudicing investigation), the following subsections shall be inserted after subsection (2)—

§ "(2A) Nothing in subsection (1) above makes it an offence for a professional legal adviser to disclose any information or other matter—

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or
(b) to any person—
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ (2B) Subsection (2A) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.".'.

§ (2) The same subsections as are inserted in section 31 of the Act of 1986 by subsection (1) shall be inserted in section 42 of the Criminal Justice (Scotland) Act 1987 (corresponding Scottish provision).'.

1042

Earl Ferrers
My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments Nos. 3 to 73.
This is a large set of amendments. I am tempted to say that they are merely technical amendments—and leave it at that. But that might be a little too expeditious for your Lordships' taste, because there are a few alterations of substance, even though the majority of these follow from the principles which were discussed and agreed by your Lordships last year. The amendments make various, mainly technical, changes to Part II of the Bill, which concerns the confiscation of the proceeds of drug trafficking.
When the Bill was first considered by your Lordships, there was, in general, a welcome for Part II, although some concerns were expressed at some aspects of it. These amendments do not alter what we are trying to do in Part II. They really just represent a more fully developed version of the original clauses, so as to ensure that they meet the Government's intentions, and that they are as clear and as technically correct as we can make them. Some of the amendments are minor, and do no more than correct inaccuracies which crept in when the Bill was originally drafted. It might be convenient therefore to your Lordships if I were to limit my explanation of this block of amendments to those which are significant.
We have altered the provision allowing confiscation orders to be revised at a later date. Your Lordships may recall that some disquiet was expressed by certain noble Lords about the powers which are provided by Clause 12. I think, though, that the principle of allowing the prosecutor to seek the confiscation of proceeds of drug trafficking, which were either hidden from the courts, or which came into existence after the time when a confiscation order was originally made, was generally accepted.
The amendments to Clause 12 ensure that we can take account of all the circumstances in which it may be appropriate to seek the confiscation of previously unknown proceeds. The clause now covers three scenarios: first, where the court did not proceed under Section 1 of the Act because there appeared to be no benefit at all; secondly, where it did proceed, following the procedure under the Drug Trafficking Offences Act 1986, but found eventually that there had been no benefit; and thirdly, where it did make an earlier confiscation order. In all three scenarios, where proceeds subsequently come to light, it will be possible either to make a new order or to increase the earlier one.
Clause 13 has also been significantly amended. The alteration looks complicated. So it is but it does not alter the substance of the provision in the Clause 13 that was debated by your Lordships at the end of last year. The amendment makes consequential amendments to the Drug Trafficking Offences Act 1986, which are necessary as a result of the changes which are made to that Act by Clause 12 of the Bill and the original part of Clause 13. The amendment ensures, in particular, that the enforcement powers—such as the 1043 High Court's powers to issue restraint and charging orders—are available when some of the new measures come into force.
The provision allowing confiscation in the case of drug traffickers, who die or who abscond, is also altered. Amendment No. 25 inserts a new Section 4B into the 1986 Act. It ensures that, where the High Court has made a confiscation order under Section 4A against a drug trafficker who has absconded and who subsequently returns and who appears before the Crown Court to be sentenced, the Crown Court will be required to ignore the size of the confiscation order in deciding the appropriate term of imprisonment.
Where a defendant absconds before conviction and where a confiscation order is made against him in his absence in the High Court, the Crown Court will be prevented from making a confiscation order if the defendant is subsequently convicted of the offence and appears before that court to be sentenced. This is because an order will already have been made in absentia. Without Amendment No. 25, there would be nothing to prevent the Crown Court from making a further order against such an offender.
We have also expanded the compensation provisions in Clause 15. New Sections 19B and 19C, which are to be inserted into the 1986 Act, concern the discharge and variation of orders and the payment of compensation in the case of drug traffickers who abscond. They complement the new Section 19A in the 1986 Act, which allows for the payment of compensation when a defendant, who absconds before conviction and against whom an order is made, subsequently returns and is acquitted. I hope, therefore, that these changes will be welcomed.
The clauses concerning money laundering have also been amended. I ought perhaps to draw your Lordships' attention, in particular, to the legal privilege defence in the new "failure to report" offences in Clauses 18 and 19. On reconsideration, we thought that the defence would be better drafted without reference to the Police and Criminal Evidence Act 1984. The effect of that formulation was that only written, and not oral, communications with legal advisers could be the subject of the defence. We are also ensuring that the immunity, which is provided in Clauses 18 and 19 for those who make disclosures of suspicions of money laundering applies to the disclosure of the information, or to the disclosure of the matter on which the suspicion is based, as well as to the disclosure of the suspicion itself.
Amendment No. 72 adds a new clause to the Bill. It inserts two new sections—Section 26A and Section 26B—into the Criminal Justice (International Cooperation) Act 1990, to meet a particular problem which has only recently been identified. Section 26 of the 1990 Act enables a magistrates' court to order the forfeiture of cash which is seized when it is found crossing borders if the court is satisfied that the cash represents the proceeds of drug trafficking. But there are at present only limited rights of appeal in England and Wales against such orders. Such appeals can be 1044 made only on the grounds that the order was wrong in law, or in excess of the jurisdiction, but the merits of the decision cannot be re-evaluated.
The lack of a full right of appeal was raised by two honourable Members in another place—the honourable Members for Beckenham and for Lewisham, West—last year, and we have since decided that it would be right to take the opportunity of this Bill to correct the position. I beg to move.
Moved, That this House do agree with the Commons in their Amendments Nos. 3 to 73.—(Earl Ferrers.)

§ Lord Harris of Greenwich
My Lords, I propose to raise a matter concerning Karyn Smith and Patricia Cahill, who were given a Royal Pardon by the King of Thailand following the intervention of the Prime Minister—I have given the noble Earl notice that I intended to raise this matter—and also the conduct of Mr. Stephen Jakobi, who is apparently the lawyer of Miss Smith. The Bill deals with the power to give the courts in England and Wales power to try cases of fraud and related offences, and of course fraud is often directly related to drug trafficking and money laundering. What we are discussing now is particularly appropriate—the question of the confiscation of drugs smugglers' assets. Both these two women come into that category and therefore in my view this matter is highly relevant to the issues that we are discussing.
I think there is general agreement in all parts of the House and indeed in another place about the consequences of the growth of drug trafficking in this country, particularly in relation to heroin, cocaine and crack. These drugs kill many thousands of people. They destroy family life. They now involve the activities of a very large industry with a turnover in the United Kingdom of many hundreds of millions of pounds a year. The Bill is aimed rightly at the organisers of this traffic but the Government have also made it clear, and made it clear repeatedly, that they consider it right for the courts to be given adequate powers to imprison for substantial periods those who are involved in carrying drugs from third world countries such as Colombia and from the Golden Triangle states, which include Thailand. All sides of both Houses have endorsed that approach. That being so, I turn now to the cases of Miss Smith and Miss Cahill.
As I understand it, the Government—Mr. Major taking the same view—have accepted the guilt of both of these women. That has been made wholly clear. Mr. Major's approach to the King of Thailand was, as I understand it, based exclusively on what were described as compassionate grounds. The women have now been released. As far as their families are concerned, all of us, I am sure, will understand their delight that their daughters have now returned to this country. But substantial questions do arise from this episode. These women have served three years in prison, but if they had been convicted in a British court on precisely the same charges they would certainly not have been released within a period of three years. Indeed, they could have been in prison —putting aside the length of the sentence —for at least twice as long.
1045 As it is, they have returned to this country and one of them, through her lawyer, Mr. Jakobi, is busy trying to sell her story to newspapers for sums ranging between £80,000 and £100,000. I very much welcome—as I am sure we all do—the statement made by the Press Complaints Commission last week and by my noble friend Lord McGregor of Durris, when he cited Article 9 of the code of practice relating to payments to criminals. Apparently, so far the story has not yet been acquired by a British newspaper and I very much hope that it will not be.
But there are now even suggestions that film rights are being sold by one of these women. I find the conduct of those who have been operating on behalf of one of these women, and that of Mr. Jakobi in particular, highly questionable. All I shall say about him is that I hope that the noble Earl will be good enough to refer this matter, following this debate, to the noble and learned Lord the Lord Chancellor so that he can have discussions, if he thinks it appropriate, with the Law Society about how a code of ethics involving solicitors relates to the behaviour of Mr. Jakobi, which has been widely publicised. I believe that his behaviour is open to very substantial criticism, but I do not believe in misusing parliamentary privilege. I leave it at the point where I say that I believe that the matter should be inquired into. I hope that that will be done.
Following that, we have had a series of attacks by Mr. Jakobi, and those who have associated themselves with him, on the Customs and Excise, who are being severely criticised because they had the temerity to work in collaboration with the Thai police. That is exactly what the Customs and Excise are supposed to do if we have a situation where they have reason to believe that British subjects, or any other nationals, are involved in the heroin trade.
One has to ask: what happens when the next alleged drug carrier, be it a woman or a man, is caught in Thailand? We have a situation where already one British woman, as has been published in the press in the past few days, is now facing serious charges in Bangkok which involve a possible capital offence because of the quantity of drugs alleged to be in her possession. In Thailand and other parts of Asia, there are in fact capital penalties. We have seen a situation where a young British subject was executed in Malaysia notwithstanding the representations made on his behalf by the then Prime Minister, the noble Baroness, Lady Thatcher.
It is critically important for people to realise the gravity of a situation in which young British subjects, who are encouraged to go to Thailand, Malaysia or elsewhere, think that they are going to make very substantial quantities of money. In the particular case to which I have referred this evening, the suggestion is made that, although they have no doubt had a disagreeable experience for the past three years, they can return home, have clutches of television interviews, and may be able to sell their stories to the newspapers but, at worst, they may be able to sell the film rights. That sends an exceedingly bad and dangerous message. The Government must take this matter extremely seriously.
1046 I repeat the question that arises: will representations be made, on what will no doubt be described as compassionate grounds, whenever a woman is convicted in Thailand or elsewhere and sentenced to imprisonment? How can we expect Thailand to take us seriously when we demand, as we do repeatedly, that they step up their campaign against the drug industry and then, whenever British women are caught, a campaign begins at once to free them. This is not the first time that it has happened. There was another case at the beginning of 1979 when, by chance, I was in Thailand myself. There was an extraordinary situation where the British Ambassador was being asked to go in to bat for this particular woman who had been caught with a large quantity of heroin in her possession and was being asked simultaneously to make vigorous representations to the Thai Government because they were not thought to be taking their responsibilities seriously enough in combating drug trafficking.
Finally, I shall be grateful if the noble Earl would explain why it is apparently right to demand compassion on behalf of British women convicted of serious offences when abroad and at the same time to adopt a wholly different approach when drug smugglers are convicted in the United Kingdom. In January 1991—unhappily, I do not have any figures for later than that—I understand that there were 161 women from third world countries in British prisons. Many of them had been convicted of carrying far smaller quantities of narcotics than was the case with the two women in Thailand. Many of them are extremely poor Nigerian women who face the prospect of further punishment when they return home. If it is right to require compassion to be exercised on behalf of Miss Smith and Miss Cahill, is it to be extended to the women in the United Kingdom whom I have referred to as well and if not, why not? This is an issue which deserves the most serious attention from the Government.
The present situation as I have described it is wholly unacceptable. I can understand the generosity of the Prime Minister's motives, but I believe that the noble Earl is required to answer some of these questions this evening. I certainly would not want him to feel that he has to give a full answer now if he cannot do so. But I believe that we would all appreciate a letter—perhaps sent to us following consultation with the Foreign and Commonwealth Office—so that we have a clear statement of the Government's position for the future. My view is that the present situation cannot go on as it is.

§ 7.45 p.m.

§ Lord Wigoder
My Lords, perhaps I may add one very brief comment. When, as I hope, the noble Earl has a word with the noble and learned Lord the Lord Chancellor about the matters which my noble friend has mentioned, the noble Earl will hardly need to remind him that he is at this moment adjudicating on an application by the Law Society for rights of audience for solicitors in the higher courts.
Both the noble and learned Lord the Lord Chancellor and the Law Society know perfectly well 1047 that in all courts the very highest ethical standards are expected of the lawyers who practise there. It is difficult to be enthusiastic about the Law Society's application when, according to reports, it has already ruled that it has seen nothing improper in the behaviour of one of its members who apparently infiltrated himself into this case in the first place by approaching the defendants' families and offering to serve them without fee and who is now seeking, by various commercial devices, to profit from their release. I hope that the noble Earl will raise this matter with the noble and learned Lord.

Earl Ferrers
My Lords, both the noble Lords, Lord Harris of Greenwich and Lord Wigoder, raise a sensitive subject and they are entirely correct and entitled to do so. The first thing we want to make perfectly clear is that drug trafficking, whether in this country or any other, is totally unacceptable. All our aims in the legislation that we have introduced have been directed towards stopping that and towards making it as difficult as possible for people to smuggle or to traffic in drugs, and to make the penalties for so doing very severe. We also encourage other countries to do so. In this case, as the noble Lord, Lord Harris, knows, Thailand has severe penalties.
The noble Lord finds difficulty in seeing why these people were released. The release was granted by the King of Thailand on humanitarian grounds. It was given because the girls were young. I believe that they were 17 when they were given 25-year sentences. They have spent some three years in prison and it was reckoned that they had learnt a good lesson. I do not want to go into the details of why they got involved or to seek to justify their smuggling in any way whatsoever. However, the fact is that they were considered as individual cases, and the King of Thailand graciously consented to release them. That does not mean in any respect that we approve of or condone what they did. What they did was wrong. Our desire in this Bill and in other legislation is to ensure that such things do not happen in this country.
The noble Lord, Lord Harris, asks, "What about the people who come from Nigeria and get caught and who spend their time in prison here? Should we not therefore release them?" I know that the answer will accord with the views of the noble Lord: it is "no". Such people bring drugs into this country and suffer the penalty for doing so and go to prison. If, as a result, they return to Nigeria and serve another sentence there, that is their fault for having carried out that operation in the first place. As I said, individual consideration was given to the two people concerned.
The noble Lord also referred to the solicitor, Jakobi, and said that it was intolerable that such people should profit from television interviews. My sympathies are entirely with the noble Lord, Lord Harris. It is intolerable that people who have misbehaved and who have broken the laws of one country and another should then profit by being interviewed or by television commercials. I shall certainly ensure that the noble Lord's concerns—and 1048 those of the noble Lord, Lord Wigoder—are drawn to the attention of my noble and learned friend the Lord Chancellor.
Turning to the proceeds that will be received from rights or book royalties, I can only say that if the girls had been convicted in this country it would be open to the prosecutors to make an application to the Crown Court under Clause 12 of the Bill for a reassessment of the benefits from drug trafficking. However, the convictions occurred in Thailand. Although Clause 12 would not therefore be relevant, it would be possible for us to enforce a Thai confiscation order if the Thais were able to confiscate such proceeds and if we had designated Thailand by Order in Council as a result of the conclusion of a bilateral confiscation agreement. The noble Lord, Lord Harris, will be glad to know that our officials are at present negotiating such an agreement with the Thais. I understand the noble Lord's concerns, and I shall ensure that they are brought to the attention of my noble and learned friend.

§ Lord Harris of Greenwich
My Lords, may I ask the noble Earl again—I am sure that he will be able to do this—whether he will write me a substantive letter on this issue? My noble friend Lord Wigoder and I would be deeply grateful to him if he could do so.

Earl Ferrers
My Lords, I apologise to the noble Lord. I had forgotten that he had asked that question. I shall certainly write such a letter to both him and the noble Lord, Lord Wigoder.

§ Baroness Seear
My Lords, I am sorry that I was not in my place when we started our consideration of this Bill. I know that the noble Earl cannot do anything about this, but does he agree that it was singularly inappropriate for that news to be made the first item of news on the radio on the morning when it broke as if it were the most important news to be reported to the nation as a whole? Surely that gives a quite wrong impression of what is important.

Earl Ferrers
My Lords, as the noble Baroness, Lady Seear, knows only too well, the media have a curious priority of importance. I agree with her that to make that kind of news the central feature, as the most important thing happening in this country, can in some people's minds be considered a misdirection of effort.
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 74 Clause 25, page 26, line 12, leave out '("the specified period")'.

§ 75 Page 26, line 16, after 'period' insert 'under subsection (1) above'.

§ 76 Page 26, line 18, leave out 'when taken'.

§ 77 Page 26, line 19, leave out 'has' and insert 'have'.

§ 78 Page 26, line 23, leave out 'on which the defendant was convicted' and insert 'of conviction'.

§ 79 Page 26, line 28, after 'above' insert 'for such period as it may specify'.

§ 80 Page 26, line 37. after '(6)' insert 'Unless the court is satisfied that there are exceptional circumstances,'.

1049

§ 81 Page 27, line 17, leave out from 'section' to 'references' in line 21.

§ 82 Page 27, line 24, at end insert:

§ '(11) In this section "the date of conviction" means—

(a) the date on which the defendant was convicted of the offence concerned, or
(b) where he was convicted in the same proceedings, but on different dates, of two or more offences which may be taken together for the purposes of subsection (2) or, as the case may be, (3) of section 71 above, the date of the latest of those convictions.'.

§ 83 Clause 26, page 28, line 12, leave out from first 'by' to 'and' in line 14 and insert 'statute or otherwise'.

§ 84 Page 29, line 14, after '102' insert '(1)'.

§ 85 Page 29, line 14, after 'VI)' insert 'the following definition shall be inserted after the definition of "interest"—

§ ""proceeds of criminal conduct", in relation to any person who has benefited from criminal conduct, means that benefit;".

§ (3) In section 102(2) of the Act of 1988.'.

§ 86 Page 29, line 15, leave out 'in subsection (2)'.

§ 87 Clause 27, page 29, line 23, leave out 'that property or has possession or the use of it' and insert 'or uses that property or has possession of it'.

§ 88 Page 29, line 26, leave out 'the property' and insert 'or used the property or had possession of it'.

§ 89 Page 29, line 28, leave out from 'above' to end of line 31 and insert—

(a) a person acquires property for inadequate consideration if the value of the consideration is significantly less than the value of the property; and
(b) a person uses or has possession of property for inadequate consideration if the value of the consideration is significantly less than the value of his use or possession of the property.'.

§ 90 Page 29, line 43, leave out from first 'by' to end of line 45 and insert 'statute or otherwise; and'.

§ 91 Page 30, line 7, leave out 'subsection (5) above' and insert 'this section'.

§ 92 Clause 29, page 31, line 27, leave out from 'if' to end of line 44 and insert '—

(a) he knows or suspects that a constable is acting, or is proposing to act, in connection with an investigation which is being, or is about to be, conducted into money laundering; and
(b) he discloses to any other person information or any other matter which is likely to prejudice that investigation, or proposed investigation.

§ (1A) A person is guilty of an offence if—

(a) he knows or suspects that a disclosure ("the disclosure") has been made to a constable under section 93A or 93B above; and
(b) he discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

§ (1B) A person is guilty of an offence if—

(a) he knows or suspects that a disclosure of a kind mentioned in section 93A(5) or 93B(8) above ("the disclosure") has been made; and
(b) he discloses to any person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure.

§ (2) Nothing in subsections (1) to (1B) above makes it an offence for a professional legal adviser to disclose any information or other matter—

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or
(b) to any person— 1050
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ (2A) Subsection (2) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.'.

§ 93 Page 31, line 46, leave out 'this section' and insert 'subsection (1), (1A) or (1B) above'.

§ 94 Page 31, line 48, leave out 'subsection (1) above' and insert 'that subsection'.

§ 95 Page 32, line 8, leave out from 'Scotland' to end of line 16.

§ 96 After Clause 30, insert the following clause:

§ Enforcement of Northern Ireland orders: proceeds of criminal conduct

§ '.—(1) In section 94 of the Criminal Justice Act 1988 (enforcement of Northern Ireland orders), in subsection (1), for "89" there shall be substituted "88" and the following subsection shall be inserted after subsection (3)—

§ (2) In section 95 of the Act of 1988 (enforcement of Northern Ireland orders in Scotland), the following subsection shall be inserted after subsection (2)—

§ "(2A) An Order in Council under this section may, in particular, provide for section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply in relation to such orders as may be prescribed by the Order.".'.

§ 97 After Clause 30, insert the following clause:

§ Prosecution by order of the Commissioners of Customs and Excise

§ '() The following section shall be inserted in the Criminal Justice Act 1988 after section 93E—

§ "Prosecution by order of the Commissioners of Customs and Excise.

§ 93F.—(1) Proceedings for an offence to which this section applies ("a specified offence") may be instituted by order of the Commissioners.

§ (2) Any proceedings for a specified offence which are so instituted shall he commenced in the name of an officer.

§ (3) In the case of the death, removal, discharge or absence of the officer in whose name any proceedings for a specified offence were commenced, those proceedings may be continued by another officer.

§ (4) Where the Commissioners investigate, or propose to investigate, any matter with a view to determining—

(a) whether there are grounds for believing that a specified offence has been committed; or
(b) whether a person should be prosecuted for a specified offence;

that matter shall be treated as an assigned matter within the meaning of the Customs and Excise Management Act 1979.

§ (5) Nothing in this section shall be taken—

(a) to prevent any person (including any officer) who has power to arrest, detain or prosecute any person for a specified offence from doing so; or
(b) to prevent a court from proceeding to deal with a person brought before it following his arrest by an officer for a specified offence, even though the proceedings have not been instituted by an order made under subsection (1) above.

1051

§ (6) In this section—

§ "the Commissioners" means the Commissioners of Customs and Excise;

§ "officer" means a person commissioned by the Commissioners;

§ "proceedings", as respects Scotland, means summary proceedings; and

§ "specified offence" means—

(a) any offence under sections 93A to 93D above;
(b) attempting to commit, conspiracy to commit or incitement to commit any such offence; or
(c) any other offence of a kind prescribed in regulations made by the Secretary of State for the purposes of this section.

§ (7) The power to make regulations under subsection (6) above shall be exercisable by statutory instrument.

§ (8) Any such instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament."'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 74 to 97 en bloc.
The amendments affect Clauses 25 to 29. Broadly speaking, they do no more than reflect a number of the changes which have been made by the earlier set of amendments to Part II of the Bill. These mainly concern the money laundering provisions. They ensure that the new offences relating to the laundering of the proceeds of criminal conduct are brought into line with those relating to the laundering of the proceeds of drug trafficking.
Moved, That the House do agree with the Commons in their Amendments Nos. 74 to 97.—(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 98 After Clause 30. insert the following clause:

§ 'Part III A

§ FINANCING ETC. OF TERRORISM

§ Amendments of the 1991 Act Confiscation orders

§ .—(1) In section 47(7) of the Northern Ireland (Emergency Provisions) Act 1991 (confiscation orders), for "the amount that might then be so realised" there shall be substituted "—

(a) the amount that might then be so realised, or
(b) a nominal amount, where it appears to the court (on the information available to it at the time) that the amount that might then be so realised is nil".

§ (2) In section 47 of the Act of 1991, the following subsection shall be added at the end—

§ "(9) The standard of proof required to determine any question arising under this Part of this Act as to—

(a) whether a person has benefited from terrorist-related activities engaged in by him or another;
(b) the value of his proceeds of those activities;
(c) any matter of which the court must be satisfied under subsection (5) above; or
(d) the amount to be required to be paid under a confiscation order made in his case,

shall be that applicable in civil proceedings.".

§ (3) Section 48 of that Act (postponed confiscation orders etc.) shall be amended as follows.

§ (4) In subsection (2), for "a period not exceeding six months after the date of conviction" there shall be substituted "such period as it may specify".

§ (5) After subsection (2) there shall he inserted—

1052

§ "(2A) More than one postponement may be made under subsection (2) above in relation to the same case.

§ (2B) Unless it is satisfied that there are exceptional circumstances, the court shall not specify a period under subsection (2) above which—

(a) by itself, or
(b) where there have been one or more previous postponements under subsection (2) above or (3) below, when taken together with the earlier specified period or periods,

exceeds six months beginning with the date on which the defendant was convicted.".

§ (6) In subsection (3) the words "during the period of postponement" shall cease to have effect and for the words from "on the application of the prosecution" to the end there shall be substituted—

§ "on that account—

(a) postpone making the confiscation order for such period as it may specify, or
(b) where it has already exercised its powers under this section to postpone, extend the specified period;

but, without prejudice to Article 11 of the Treatment of Offenders (Northern Ireland) Order 1989, the court may notwithstanding any postponement under this section proceed to sentence or otherwise deal with the defendant in respect of the conviction.".

§ (7) After subsection (3) there shall be inserted—

§ "(3A) A postponement or extension under subsection (2) or (3) above may be made—

(a) on application by the defendant or the prosecution, or
(b) by the court of its own motion.

§ (3B) Unless the court is satisfied that there are exceptional circumstances, any postponement or extension under subsection (3) above shall not exceed the period ending three months after the date of determination of the appeal.".'.

§ 99 After Clause 30, insert the following clause:

§ Revised assessments

§ '.The following sections shall be inserted in the Northern Ireland (Emergency Provisions) Act 1991, after section 48—

§ "Re-assessment of whether defendant has benefited.

§ 48A.—(1) This section applies where—

(a) a court proceeding under section 47(1) above decided not to make a confiscation order ("the decision"); and
(b) the statement made by the court under section 48(8) above was to the effect that the reason, or one of the reasons, for the decision was that the court was not satisfied that the defendant had benefited.

§ (2) If the prosecution has evidence—

(a) which was not considered by the court, but
(b) which the prosecution believes would have led the court to decide that the defendant had benefited,

the prosecution may apply to the Crown Court for it to consider that evidence.

§ (3) If, having considered the evidence, the court considers that it would have been satisfied that the defendant had benefited if that evidence had been available to it, section 47 shall apply as if the court were convicting the defendant.

§ (4) The court may take into account any money or other property obtained by the defendant on or after the date of the decision, but only if the prosecution shows that it was obtained by him as a direct or indirect result of terrorist-related activities carried on by the defendant or another on or before that date.

1053

§ (5) In considering any evidence under this section which relates to any money or other property to which subsection (4) above applies, the court shall not make the assumptions which would otherwise be required by section 51 below.

§ (6) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted.

§ (7) Subsections (1) to (7) of section 48 above shall not apply where the court is proceeding under section 47 above by virtue of this section.

§ (8) Where the court—

(a) has, in dealing with the defendant in respect of the conviction or any of the convictions concerned, made an order for the payment of compensation under Article 3 of the Order of 1980, and
(b) makes a confiscation order by virtue of this section,

it shall, if it is of the opinion that the defendant will not have sufficient means to satisfy both orders in full, direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means is to be paid out of any sums recovered under the confiscation order.

§ (9) Where the prosecution makes an application to the court under this section it shall, on making the application, give the court a statement under section 52 below.

§ (10) Where the High Court—

(a) has been asked to proceed under section 52B below in relation to a defendant who has absconded, but
(b) has decided not to make a confiscation order against him,

this section shall not apply at any time while he remains an absconder.

§ (11) In this section "benefited" means benefited from terrorist-related activities as mentioned in section 47(1) above.

§ Revised assessments.

§ 48B.—(1) This section applies where the court has made a confiscation order by reference to an amount assessed under section 47(1) above ("the current assessment").

§ (2) Where the prosecution is of the opinion that the real value of the defendant's proceeds of terrorist-related activities was greater than their assessed value, the prosecution may apply to the Crown Court for the evidence on which it has formed that opinion to be considered by the court.

§ (3) In subsection (2) above—

§ "assessed value" means the value of the defendant's proceeds of terrorist-related activities as assessed by the court under section 47(1) above; and

§ "real value" means the value of the defendant's proceeds of terrorist-related activities which took place—

(a) in the period by reference to which the current assessment was made; or
(b) in any earlier period.

§ (4) If, having considered the evidence, the court is satisfied that the real value of the defendant's proceeds of terrorist-related activities is greater than their assessed value (whether because the real value was higher at the time of the current assessment than was thought or because the value of the proceeds in question has subsequently increased), the court shall make a fresh determination of the amount to be required to be paid under section 47 above.

§ (5) In relation to any determination by virtue of this section, section 47(7) above shall have effect as it has effect in relation to the making of a confiscation order.

1054

§ (6) For any determination by virtue of this section, section 47(8) above shall not apply in relation to any of the defendant's proceeds of terrorist-related activities taken into account in respect of the current assessment.

§ (7) Sections 50(4) and 52(4) (a) and (7) below shall have effect in relation to any such determination as if for "confiscation order" there were substituted "determination" and section 50(3) below shall so have effect as if for "a confiscation order is made" there were substituted "of the determination".

§ (8) The court may take into account any money or other property obtained by the defendant on or after the date of the current assessment, but only if the prosecution shows that it was obtained by him as a direct or indirect result of terrorist-related activities carried on by the defendant or another on or before that date.

§ (10) If, as a result of making the determination required by subsection (4) above, the amount to be required to be paid exceeds the amount set in accordance with the current assessment, the court may substitute for the amount required to be paid under the confiscation order such greater amount as it thinks just in all the circumstances of the case.

§ (11) Where the court varies a confiscation order under subsection (10) above it shall substitute for the term of imprisonment or of detention fixed under section 35(1) (c) of the Criminal Justice Act (Northern Ireland) 1945 in respect of the amount required to be paid under the order a longer term determined in accordance with that section (as it has effect by virtue of paragraph 2 of Schedule 4 to this Act) in respect of the greater amount substituted under subsection (10) above.

§ (12) Subsection (11) above shall apply only if the effect of the substitution is to increase the maximum period applicable in relation to the order under paragraph 2(1) (b) of Schedule 4 to this Act.

§ (13) Where the prosecution makes an application to the court under this section—

(a) it shall, on making the application, give the court a statement under section 52 below; and
(b) section 52A shall apply.

§ (14) Where a confiscation order has been made in relation to any defendant by virtue of section 52B below, this section shall not apply at any time while he is an absconder.

§ (15) No application shall be entertained by the court under this section if it is made after the end of the period of six years beginning with the date on which the defendant was convicted."'.

§ 100 After Clause 30, insert the following clause:

§ Statements, etc. relevant to making confiscation orders

§ '.—(1) Section 52 of the Northern Ireland (Emergency Provisions) Act 1991 shall be amended as follows.

§ (2) The following subsections shall be substituted for subsection (1)—

§ "(1) In this section, except in subsection (4) below, "a statement" means a statement in the case of a defendant as to any matters relevant—

(a) to determining whether he has benefited from terrorist-related activities,
(b) to assessing the value of his proceeds of those activities, or
(c) to determining whether the requirements of section 47(5) above are satisfied.

§ (1A) Where section 47(l) above applies—

(a) the court may require the prosecution to give it a statement within such period as it may direct; and
(b) the prosecution may at any time give a statement to the court.

§ (1B) Where the prosecution has given the court a statement— 1055

(a) it may at any time give the court a further statement; and
(b) the court may at any time require it to give the court a further statement, within such period as the court may direct.

§ (1C) Where—

(a) a statement has been given to the court under this section, and
(b) the defendant accepts to any extent any allegation in the statement,

the court may treat his acceptance as conclusive of the matters to which it relates.".

§ (3) In subsection (2)—

(a) for "is tendered under subsection (1) (a) above" there shall be substituted "is given under this section"; and
(b) after first "indicate" there shall be inserted "within such period as the court may direct".

§ (4) The following subsection shall be inserted after subsection (2)—

§ "(2A) Where the court has given a direction under this section it may at any time vary it by giving a further direction."

§ (5) In subsection (4), for "tendered" there shall be substituted "given".

§ 101 After Clause 30, insert the following clause:

§ Provision of information

§ '.The following section shall be inserted in the Northern Ireland (Emergency Provisions) Act 1991, after section 52—

§ "Provision of information by defendant.

§ 52A.—(1) This section applies where the Crown Court is proceeding under section 47(1) above.

§ (2) For the purpose of obtaining information to assist it in carrying out its functions, the court may at any time order the defendant to give it such information as may be specified in the order.

§ (3) An order under subsection (2) above may require all, or any specified part, of the required information to be given to the court in such manner, and before such date, as may be specified in the order.

§ (4) Rules of court may make provision as to the maximum or minimum period that may be allowed under subsection (3) above.

§ (5) If the defendant fails, without reasonable excuse, to comply with any order under this section, the court may draw such inference from that failure as it considers appropriate.

§ (6) Where the prosecution accepts to any extent any allegation made by the defendant in giving to the court information required by an order under this section, the court may treat that acceptance as conclusive of the matters to which it relates.

§ (7) For the purposes of this section, an allegation may be accepted in such manner as may be prescribed by rules of court or as the court may direct."'.

§ 102 After Clause 30, insert the following clause:

§ Variation of confiscation orders

§ '.—(1) Paragraph 15 (variation of confiscation orders) of Schedule 4 to the Northern Ireland (Emergency Provisions) Act 1991 shall be amended as follows.

§ (2) In sub-paragraph (1), after "defendant" there shall be inserted "or a receiver appointed under this Schedule, or in pursuance of a charging order, made".

§ (3) In sub-paragraph (3), for "defendant" there shall be substituted "person who applied for it".

§ (4) The following shall be added at the end—

§ "(5) Rules of court may make provision—

(a) for the giving of notice of any application under this paragraph; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this paragraph to be given an opportunity to make representations to the court."'.

1056

§ 103 After Clause 30, insert the following clause:

§ Availability of powers and satisfaction of orders

§ '.—(1) Schedule 4 to the Northern Ireland (Emergency Provisions) Act 1991 (supplementary provisions about confiscation orders) shall be amended as follows.

§ (2) In paragraph 2 (application of procedure for enforcing fines), the following shall be added at the end—

§ "(6) Where the defendant serves a term of imprisonment or detention in default of paying any amount due under a confiscation order, his serving that term does not prevent the confiscation order from continuing to have effect, so far as any other method of enforcement is concerned.".

§ (3) In paragraph 4 (cases in which restraint orders and charging orders may be made), the following sub-paragraphs shall be substituted for sub-paragraphs (1) and (2)—

§ "(1) The powers conferred on the High Court by paragraphs 5(1) and 6(1) below are exercisable where—

(a) proceedings have been instituted in Northern Ireland against the defendant for a relevant offence or an application has been made by the prosecution in respect of the defendant under section 48A, 48B or 52B of this Act or paragraph 11 below,
(b) the proceedings have not, or the application has not, been concluded, and
(c) the court is satisfied that there is reasonable cause to believe—
1. (i) in the case of an application under section 48B of this Act or paragraph 11 below, that the court will be satisfied as mentioned in section 48B(4) of this Act or, as the case may be, paragraph 11(1) (b) below, or
2. (ii) in any other case, that the defendant has benefited from terrorist-related activities.

§ (2) Those powers are also exercisable where—

(a) the High Court is satisfied that, whether by the making of a complaint or otherwise, a person is to be charged with a relevant offence or that an application of a kind mentioned in sub-paragraph (1) (a) above is to be made in respect of the defendant, and
(b) it appears to the court that there is reasonable cause to believe—
1. (i) in the case of a proposed application under section 48B of this Act or paragraph 11 below, that the court will be satisfied as mentioned in section 48B(4) of this Act or, as the case may be, paragraph 11(1) (b) below, or
2. (ii) in any other case, that the defendant has benefited from terrorist-related activities.".

§ (4) The following sub-paragraphs shall be added at the end of paragraph 4—

§ "(5) Where the court has made an order under paragraph 5(1) or 6(1) below in relation to a proposed application, by virtue of sub-paragraph (2) above, the court shall discharge the order if the application is not made within such time as the court considers reasonable.

§ (6) The court shall not exercise powers under paragraph 5(1) or 6(1) below, by virtue of sub-paragraph (1) above, if it is satisfied that—

(a) there has been undue delay in continuing the proceedings or application in question; or
(b) the prosecution does not intend to proceed.".

§ (5) In paragraph 5 (restraint orders), the following sub-paragraph shall be substituted for sub-paragraph (6)—

§ "(6) A restraint order—

(a) may be discharged or varied in relation to any property, and
(b) shall be discharged on the conclusion of the proceedings or of the application in question.".

1057

§ (6) In paragraph 6 (charging orders), the following sub-paragraph shall be substituted for sub-paragraph (6)—

§ "(6) In relation to a charging order the court—

(a) may make an order discharging or varying it, and
(b) shall make an order discharging it—
1. (i) on the conclusion of the proceedings or of the application in question, or
2. (ii) on payment into court of the amount payment of which is secured by the charge.".

§ (7) In paragraph 10 (realisation of property), the following sub-paragraph shall be substituted for sub-paragraph (1)—

§ "(1) Where a confiscation order—

(a) has been made under this Act,
(b) is not satisfied, and
(c) is not subject to appeal,

the High Court may, on an application by the prosecution, exercise the powers conferred by sub-paragraphs (2) to (6) below.".

§ (8) In paragraph 16 (bankruptcy of defendant), the following shall he substituted for paragraphs (a) and (b) of sub-paragraph (6)—

§ "(a) no order shall be made under Article 312 or 367 of the said Order of 1989 (avoidance of certain transactions) in respect of the making of the gift at any time when—

(i) proceedings for a relevant offence have been instituted against him and have not been concluded;
(ii) an application has been made in respect of the defendant under section 48A, 48B or 52B of this Act or paragraph 11 below and has not been concluded; or
(iii) property of the person to whom the gift was made is subject to a restraint order or charging order; and

§ (b) any order made under either of those Articles after the conclusion of the proceedings or of the application shall take into account any realisation under this Schedule of property held by the person to whom the gift was made.".

§ (9) In paragraph 1 (interpretation), the following sub-paragraphs shall be substituted for sub-paragraph (3)—

§ "(3) Proceedings for a relevant offence are concluded—

(a) when the defendant is acquitted;
(b) if he is convicted, but the court decides not to make a confiscation order against him, when it makes that decision; or
(c) if a confiscation order is made against him in those proceedings, when the order is satisfied.

§ (3A) An application under section 48A or 52B of this Act is concluded—

(a) if the court decides not to make a confiscation order against the defendant, when it makes that decision; or
(b) if a confiscation order is made against him as a result of that application, when the order is satisfied.

§ (3B) An application under section 48B of this Act or paragraph 11 below is concluded—

(a) if the court decides not to vary the confiscation order in question, when it makes that decision; or
(b) if the court varies the confiscation order as a result of the application, when the order is satisfied.

§ (3C) For the purposes of this Schedule, a confiscation order is satisfied when no amount is due under it.

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§ (3D) For the purposes of paragraph 16 below, a confiscation order is also satisfied when the defendant in respect of whom it was made has served a term of imprisonment or detention in default of payment of the amount due under the order.".'.

§ 104 After Clause 30, insert the following clause:

§ Defendant who has died or absconded

§ '.The following section shall be inserted in the Northern Ireland (Emergency Provisions) Act 1991 after section 52A—

§ "Powers of High Court where defendant has died or absconded.

§ 52B.—(1) Subsection (2) below applies where a person has been convicted of a relevant offence.

§ (2) If the prosecution asks it to proceed under this section, the High Court may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant if satisfied that the defendant has died or absconded.

§ (3) Subsection (4) below applies where proceedings have been instituted against the defendant for one or more relevant offences but have not been concluded.

§ (4) If the prosecution asks it to proceed under this section, the High Court, if satisfied that the defendant has absconded, may exercise the powers of the Crown Court under this Act to make a confiscation order against the defendant as if the defendant had been convicted of the relevant offence or each of the relevant offences for which the proceedings had been instituted.

§ (5) The power conferred by subsection (4) above may not be exercised at any time before the end of the period of two years beginning with the date which is, in the opinion of the court, the date on which the defendant absconded.

§ (6) Where the prosecution makes an application to the court under this section it shall, on making the application, give the court a statement under section 52 above.

§ (7) In any proceedings on an application under this section—

(a) sections 51, 52(1C), (2) and (3) and 52A above shall not apply,
(b) the court shall not make a confiscation order against a person who has absconded unless it is satisfied that the prosecution has taken reasonable steps to contact him, and
(c) any person appearing to the court to be likely to be affected by the making of a confiscation order by the court shall be entitled to appear before the court and make representations.

§ (8) Where the High Court has made a confiscation order by virtue of this section, in a case where the defendant has been or is subsequently convicted of one or more of the offences concerned, sections 47 and 48(1) to (5) and (7) above shall not apply in respect of his conviction of that offence or those offences; but any court dealing with him in respect of that conviction or any of those convictions—

(a) shall take account of the order before—
1. (i) imposing any fine on him; or
2. (ii) making any order involving any payment by him, other than an order under Article 3 of the Criminal Justice (Northern Ireland) Order 1980 (compensation orders); or
3. (iii) making any order under Article 7 of that Order (deprivation orders),
but subject to that shall leave the order out of account in determining the appropriate sentence or other manner of dealing with him; and
(b) if it makes an order for the payment of compensation under Article 3 of the Order of 1980, and is of the opinion that the defendant will not have sufficient means to satisfy both that order and the confiscation order in full, shall direct that so much of the compensation as will not in its opinion be recoverable because of the insufficiency of his means is to be paid out of any sums recovered under the confiscation order."'.

§ 105 After Clause 30, insert the following clause:

§ Compensation

§ '. In Schedule 4 to the Northern Ireland (Emergency Provisions) Act 1991, the following paragraphs shall be inserted after paragraph 20—

§ "Compensation etc. where absconder is acquitted

§ 20A.—(1) This paragraph applies where—

(a) the High Court has made a confiscation order by virtue of section 52B(4) of this Act, and
(b) the defendant is subsequently tried for the offence or offences concerned and acquitted on all counts.

§ (2) The court by which the defendant is acquitted shall cancel the confiscation order.

§ (3) The High Court may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.

§ (4) The amount of compensation to be paid under this paragraph shall he such as the court considers just in all the circumstances of the case.

§ (5) Rules of court may make provision—

(a) for the giving of notice of any application under this paragraph; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this paragraph to be given an opportunity to make representations to the court.

§ (6) Any payment of compensation under this paragraph shall be made by the Lord Chancellor out of money provided by Parliament.

§ (7) Where the court cancels a confiscation order under this paragraph it may make such consequential or incidental order as it considers appropriate in connection with the cancellation.

§ Power to discharge confiscation order and order compensation where absconder returns

§ 20B.—(1) This paragraph applies where—

(a) the High Court has made a confiscation order by virtue of section 52B(4) of this Act in relation to an absconder,
(b) the defendant has ceased to be an absconder, and
(c) paragraph 20A above does not apply.

§ (2) The High Court may, on the application of the defendant, cancel the confiscation order if it is satisfied that—

(a) there has been undue delay in continuing the proceedings in respect of which the power under section 52B(4) above was exercised; or
(b) the prosecution do not intend to proceed.

§ (3) Where the High Court cancels a confiscation order under this paragraph it may, on the application of a person who held property which was realisable property, order compensation to be paid to the applicant if it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order.

§ (4) The amount of compensation to be paid under this paragraph shall be such as the court considers just in all the circumstances of the case.

§ (5) Rules of court may make provision—

(a) for the giving of notice of any application under this paragraph; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this paragraph to be given an opportunity to make representations to the court.

§ (6) Any payment of compensation under this paragraph shall be made by the Lord Chancellor out of money provided by Parliament.

§ (7) Where the court cancels a confiscation order under this paragraph it may make such consequential or incidental order as it considers appropriate in connection with the cancellation.

§ Variation of confiscation orders made by virtue of section 52B

§ 20C.—(l) This paragraph applies where—

(a) the High Court has made a confiscation order by virtue of section 52B(4) of this Act, and
(b) the defendant has ceased to be an absconder.

§ (2) If the defendant alleges that—

(a) the value of his proceeds of terrorist-related activities in the period by reference to which the assessment in question was made (the "original value"), or
(b) the amount that might have been realised at the time the confiscation order was made,

was less than the amount required to be paid under the confiscation order, he may apply to the High Court for it to consider his evidence.

§ (3) If, having considered that evidence, the court is satisfied that the defendant's allegation is correct it—

(a) shall proceed under section 47(1) of this Act to make a fresh assessment of the value of his proceeds of terrorist-related activities, and
(b) may, if it considers it just in all the circumstances, vary the amount required to be paid under the confiscation order.

§ (4) For any assessment under section 47 of this Act by virtue of this paragraph, section 47(8) shall not apply in relation to any of the defendant's proceeds of terrorist-related activities taken into account in assessing the original value.

§ (5) Where the court varies a confiscation order under this paragraph—

(a) it shall substitute for the term of imprisonment or detention fixed in respect of the order under subsection (1) (c) of section 35 of the Criminal Justice Act (Northern Ireland) 1945 (imprisonment in default of payment) a shorter term if the effect of the substitution under sub-paragraph (3) above is to reduce the maximum period applicable in relation to the order under subsection (2) of that section as it has effect by virtue of paragraph 2(1) (b) above; and
(b) on the application of a person who held property which was realisable property, it may order compensation to be paid to the applicant if—
1. (i) it is satisfied that the applicant has suffered loss as a result of the making of the confiscation order; and
2. (ii) having regard to all the circumstances of the case, the court considers it to be appropriate.

§ (7) Rules of court may make provision—

(a) for the giving of notice of any application under this paragraph; and
(b) for any person appearing to the court to be likely to be affected by any exercise of its powers under this paragraph to be given an opportunity to make representations to the court.

§ (8) Any payment of compensation under this paragraph shall be made by the Lord Chancellor out of money provided by Parliament.

1061

§ (9) No application shall be entertained by the court under this paragraph if it is made after the end of the period of six years beginning with the date on which the confiscation order was made."'.

§ 106 After Clause 30, insert the following clause:

§ Realisable property

§ '. In Section 50 of the Northern Ireland (Emergency Provisions) Act 1991 (realisable property, value and gifts), in subsection (2), the following paragraphs shall be inserted after paragraph (c)—

§ "(d) section 43 of the Powers of Criminal Courts Act 1973; or

§ (e) section 223 or 436 of the Criminal Procedure (Scotland) Act 1975,".'.

§ 107 After Clause 30, insert the following clause:

§ Enforcement

§ '.—(1) Section 67 of the Northern Ireland (Emergency Provisions) Act 1991 (orders and regulations), shall be amended as follows.

§ (2) In subsection (5), after the words "paragraph 7(3)" there shall be inserted "or 19(1) (a)".

§ (3) Subsection (6) shall cease to have effect.'.

§ 108 After Clause 30, insert the following clause:

§ Enforcement of orders outside Northern Ireland

§ In paragraph 19 of Schedule 4 to the Northern Ireland (Emergency Provisions) Act 1991 (enforcement of orders outside Northern Ireland), the following sub-paragraphs shall be added at the end—

§ "(3) An Order under this paragraph may contain such incidental, consequential and transitional provisions as Her Majesty considers expedient.

§ (4) An Order under sub-paragraph (1) (a) above may, in particular, provide for section 18 of the Civil Jurisdiction and Judgments Act 1982 (enforcement of United Kingdom judgments in other parts of the United Kingdom) not to apply.".'.

§ 109 After Clause 30, insert the following clause:

§ Offences relating to proceeds of terrorist-related activities

§ '.—(1) In section 53 of the Northern Ireland (Emergency Provisions) Act 1991 (assisting another to retain proceeds of terrorist-related activities) the following subsection shall be inserted after subsection (3)—

§ "(3A) Where a person discloses to a constable a suspicion or belief that any funds or investments are derived from or used in connection with terrorist-related activities or any matter on which such a suspicion or belief is based, the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by statute or otherwise.".

§ (2) In section 53 of that Act the following subsection shall be inserted after subsection (4)—

§ "(4A) In the case of a person who was in employment at the relevant time, subsections (3), (3A) and (4) (c) above shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a constable.".

§ (3) In subsection (3) of section 54 of that Act (concealing or transferring proceeds of terrorist-related activities), for the words from "that property" to the end of that subsection, there shall be substituted "or uses that property or has possession of it".

§ (4) In section 54 of that Act, the following subsection shall be inserted after subsection (3)—

§ "(3A) It is a defence to a charge of committing an offence under this section that the person charged acquired or used the property or had possession of it for adequate consideration.".

1062

§ (5) For section 54(5) of that Act there shall be substituted—

§ "(5) For the purposes of subsection (3A) above—

(a) a person acquires property for inadequate consideration if the value of the consideration is significantly less than the value of the property;
(b) a person uses or has possession of any property for inadequate consideration if the value of the consideration is significantly less than the value of his possession or use of the property; and
(c) the provision for any person of services or goods which are of assistance to him in terrorist-related activities shall not be treated as consideration.

§ (5A) Where a person discloses to a constable a suspicion or belief that any property is, or in whole or in part directly or indirectly represents, another person's proceeds of terrorist-related activities or any matter on which such a suspicion or belief is based—

(a) the disclosure shall not be treated as a breach of any restriction upon the disclosure of information imposed by statute or otherwise; and
(b) if he does any act in contravention of subsection (3) above, he does not commit an offence under that subsection if—
1. (i) the disclosure is made before he does the act concerned and that act is done with the consent of the constable; or
2. (ii) the disclosure is made after he does the act but on his initiative and as soon as it is reasonable for him to make it.

§ (5B) For the purposes of this section, having possession of any property shall be taken to be doing an act in relation to it.

§ (5C) In proceedings against a person for an offence under subsection (3) above, it is a defence to prove that—

§ (a) he intended to disclose to a constable such a suspicion, belief or matter as is mentioned in subsection (5A) above; but

§ (5D) In the case of a person who was in employment at the relevant time, subsections (5A) and (5C) above shall have effect in relation to disclosures, and intended disclosures, to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures as they have effect in relation to disclosures, and intended disclosures, to a constable.

§ (5E) No constable or other person shall be guilty of an offence under subsection (3) above in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to terrorism or the proceeds or resources of such terrorism."'.

§ 110 After Clause 30, insert the following clause:

§ Failure to disclose knowledge or suspicion relating to proceeds of terrorist-related activities

§ '. The following section shall be inserted in the Northern Ireland (Emergency Provisions) Act 1991, after section 54—

§ "Failure to disclose knowledge or suspicion of offences under sections 53 and 54.

§ 54A.—(1) A person is guilty of an offence if—

(a) he knows, or suspects, that another person is acting in the proscribed manner,
(b) the information, or other matter, on which that knowledge or suspicion is based came to his attention in the course of his trade, profession, business or employment, and
(c) he does not disclose the information or other matter to a constable as soon as is reasonably practicable after it comes to his attention.

1063

§ (2) Subsection (1) above does not make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.

§ (3) It is a defence to a charge of committing an offence under this section that the person charged had a reasonable excuse for not disclosing the information or other matter in question.

§ (4) Where a person discloses to a constable—

(a) his suspicion or belief that another person is acting in the proscribed manner, or
(b) any information or other matter on which that suspicion or belief is based,

the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise.

§ (5) Without prejudice to subsection (3) or (4) above, in the case of a person who was in employment at the relevant time, it is a defence to a charge of committing an offence under this section that he disclosed the information or other matter in question to the appropriate person in accordance with the procedure established by his employer for the making of such disclosures.

§ (6) A disclosure to which subsection (5) above applies shall not be treated as a breach of any restriction imposed by statute or otherwise.

§ (7) In this section "acting in the proscribed manner" means doing any act which constitutes an offence under section 53 or 54 above or, in the case of an act done otherwise than in the United Kingdom, which would constitute such an offence if done in the United Kingdom.

§ (8) For the purposes of subsection (7) above, having possession of any property shall be taken to be doing an act in relation to it.

§ (9) For the purposes of this section, any information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated, or given, to him—

(a) by, or by a representative of, a client of his in connection with the giving by the adviser of legal advice to the client;
(b) by, or by a representative of, a person seeking legal advice from the adviser; or
(c) by any person—
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ (10) No information or other matter shall be treated as coming to a professional legal adviser in privileged circumstances if it is communicated or given with a view to furthering any criminal purpose.

§ (11) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both, or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or to both." '.

§ 111 After Clause 30, insert the following clause:

§ 'Amendments of the 1989 Act Financial assistance for terrorism

§ .—(1) In section 9 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (contributions towards acts of terrorism), the following shall be inserted at the end of subsection (1) (b)—

§ "or

§ (c) uses or has possession of, whether for consideration or not, any money or other property,".

§ (2) In section 10 of that Act (contributions to the resources of proscribed organisations), in subsection (1) (b), after the words "or accepts" there shall be inserted "or uses or has possession of".

1064

§ (3) In section 12 of that Act (disclosure of information about terrorist funds) for the word "contract", in subsection (1), there shall be substituted "statute or otherwise".

§ (4) In section 12 of that Act, the following subsection shall be inserted after subsection (2)—

§ "(2A) For the purposes of subsection (2) above a person who uses or has possession of money or other property shall be taken to be concerned in a transaction or arrangement.".

§ (5) In section 12(3) of that Act, after "section 9(1) (b)" there shall be inserted "or (c)".

§ (6) The following subsections shall be added at the end of section 12 of that Act—

§ (5) No constable or other person shall be guilty of an offence under section 9(1) (b) or (c) or (2) or 10(1) (b) or (c) above in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to terrorism or the proceeds or resources of terrorism.

§ (6) For the purposes of subsection (5) above, having possession of any property shall be taken to be doing an act in relation to it.".'.

§ 112 After Clause 30, insert the following clause:

§ Investigation of terrorist activities

§ ' .—(1) Section 17 (investigation of terrorist activities) of the Prevention of Terrorism (Temporary Provisions) Act 1989 shall be amended as follows.

§ (2) In subsection (1) (a) (ii)—

(a) for "or 11 above" there shall be substituted "11, 18 or 18A of this Act"; and
(b) for "or 28" there shall be substituted "28, 53, 54 or 54A".

§ (3) For subsection (2) there shall be substituted—

§ "(2) A person is guilty of an offence if, knowing or having reasonable cause to suspect that a constable is acting, or is, proposing to act, in connection with a terrorist investigation which is being, or is about to be, conducted, he—

(a) discloses to any other person information or any other matter which is likely to prejudice the investigation or proposed investigation, or
(b) falsifies, conceals or destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of, material which is or is likely to be relevant to the investigation, or proposed investigation.

§ (2A) A person is guilty of an offence if, knowing or having reasonable cause to suspect that a disclosure ("the disclosure") has been made to a constable under section 12, 18 or 18A of this Act or section 53, 54 or 54A of the Northern Ireland (Emergency Provisions) Act 1991, he—

(a) discloses to any other person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure; or
(b) falsifies, conceals or destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of, material which is or is likely to be relevant to any such investigation.

§ (2B) A person is guilty of an offence if, knowing or having reasonable cause to suspect that a disclosure ("the disclosure") of a kind mentioned in section 12(4) or 18A(5) of this Act or section 53(4A), 54(5D) or 54A(5) of the Act of 1991 has been made, he—

(a) discloses to any person information or any other matter which is likely to prejudice any investigation which might be conducted following the disclosure; or
(b) falsifies, conceals or destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of, material which is or is likely to be relevant to any such investigation.

§ (2C) Nothing in subsections (2) to (2B) above makes it an offence for a professional legal adviser to disclose any information or other matter—

(a) to, or to a representative of, a client of his in connection with the giving by the adviser of legal advice to the client; or
(b) to any person—
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ (2D) Subsection (2C) above does not apply in relation to any information or other matter which is disclosed with a view to furthering any criminal purpose.

§ (2E) No constable or other person shall be guilty of an offence under this section in respect of anything done by him in the course of acting in connection with the enforcement, or intended enforcement, of any provision of this Act or of any other enactment relating to terrorism or the proceeds or resources of terrorism.".

§ (4) In subsection (3) (defence in respect of disclosure), after "investigation" there shall be inserted "or proposed investigation".

§ (5) The following shall be inserted after subsection (3)—

§ "(3A) In proceedings against a person for an offence under subsection (2A) (a) or (2B) (a) above it is a defence to prove—

(a) that he did not know and had no reasonable cause to suspect that his disclosure was likely to prejudice the investigation in question; or
(b) that he had lawful authority or reasonable excuse for making his disclosure.".

§ (6) In subsection (4) (defence in respect of falsifying material etc.), for the words from "the persons" to the end there shall be substituted "any person conducting, or likely to be conducting, the investigation or proposed investigation".

§ (7) The following shall be inserted after subsection (4)—

§ "(4A) In proceedings against a person for an offence under subsection (2A) (b) or (2B) (b) above, it is a defence to prove that he had no intention of concealing any information contained in the material in question from any person who might carry out the investigation in question.".

§ (8) In subsection (5) (penalties) after "(2)" there shall he inserted "(2A) or (2B)".

§ (9) The following subsection shall be added at the end—

§ "(6) For the purposes of subsection (1) above, as it applies in relation to any offence under section 18 or 18A below or section 54A of the Act of 1991, "act" includes omission.".'.

§ 113 After Clause 30, insert the following clause:

§ Failure to disclose knowledge or suspicion of financial assistance for terrorism

§ '. The following section shall be inserted in the Prevention of Terrorism (Temporary Provisions) Act 1989 after section 18—

§ "Failure to disclose knowledge or suspicion of offences under sections 9 to 11.

§ 18A.—(1) A person is guilty of an offence if—

(a) he knows, or suspects, that another person is providing financial assistance for terrorism;
(b) the information, or other matter, on which that knowledge or suspicion is based came to his attention in the course of his trade, profession, business or employment; and
(c) he does not disclose the information or other matter to a constable as soon as is reasonably practicable after it comes to his attention.

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§ (2) Subsection (1) above does not make it an offence for a professional legal adviser to fail to disclose any information or other matter which has come to him in privileged circumstances.

§ (3) It is a defence to a charge of committing an offence under this section that the person charged had a reasonable excuse for not disclosing the information or other matter in question.

§ (4) Where a person discloses to a constable—

(a) his suspicion or belief that another person is providing financial assistance for terrorism; or
(b) any information or other matter on which that suspicion or belief is based;

the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise.

§ (6) A disclosure to which subsection (5) above applies shall not be treated as a breach of any restriction imposed by statute or otherwise.

§ (7) In this section "providing financial assistance for terrorism" means doing any act which constitutes an offence under section 9, 10 or 11 above or, in the case of an act done otherwise than in the United Kingdom, which would constitute such an offence if done in the United Kingdom.

§ (8) For the purposes of subsection (7) above, having possession of any property shall be taken to be doing an act in relation to it.

§ (9) For the purposes of this section, any information or other matter comes to a professional legal adviser in privileged circumstances if it is communicated, or given, to him—

(a) by, or by a representative of, a client of his in connection with the giving by the adviser of legal advice to the client;
(b) by, or by a representative of, a person seeking legal advice from the adviser; or
(c) by any person —
1. (i) in contemplation of, or in connection with, legal proceedings; and
2. (ii) for the purpose of those proceedings.

§ (11) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or to both." '.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 98 to 113 en bloc.
In moving the Bill at Second Reading in another place, my right honourable friend's predecessor as Home Secretary recognised that, given the particularly serious nature of both forms of crime, it was only right that the measures taken against terrorist finances should, as far as is appropriate, match those taken in relation to drug trafficking. He therefore announced that it was the Government's intention to introduce amendments to the Bill in order to reproduce, in the terrorism legislation, many of the changes being made 1067 in Part II of the Bill to the money laundering and confiscation provisions contained in the Drug Trafficking Offences Act 1986.
Amendments Nos. 98 to 113 achieve that intention by introducing equivalent new provisions on terrorist finances in the Prevention of Terrorism (Temporary Provisions) Act 1989 and the Northern Ireland (Emergency Provisions) Act 1991. They represent a strengthening of the United Kingdom's legislation on terrorist finances.
Specifically, the amendments create new terrorist finance offences in three areas, all of which will apply throughout the United Kingdom. First, Amendments Nos. 109 and 111 will make it an offence to possess or use terrorist proceeds or resources. This will carry a maximum penalty of 14 years' imprisonment. Secondly, Amendments Nos. 110 and 113 will make it an offence to fail to disclose knowledge or suspicion of terrorist money laundering or of other financial assistance for terrorism. The maximum penalty will be five years' imprisonment. Thirdly, Amendment No. 112 will make it an offence to tip someone off that a terrorist finance or other investigation is planned or in progress or to conceal or destroy material relevant to such an investigation. This will also carry a maximum penalty of five years' imprisonment.
These new offences are in similar terms to those introduced in the drug trafficking legislation by Clauses 16 and 18 of the Bill and, like those offences, they contain the defences and safeguards necessary to ensure that they will not harm legitimate business nor threaten those who are carrying out their lawful duties. They will, however, enhance the investigation and prosecution of terrorist funding in all parts of the United Kingdom.
Amendments Nos. 98 to 108 also strengthen the scheme which applies in Northern Ireland for the confiscation of the proceeds of terrorist-related activities by reading across to the Northern Ireland (Emergency Provisions) Act 1991 many of the changes which Clauses 7 to 15 of the Bill make to the confiscation scheme which is contained in the Drug Trafficking Offences Act 1986. The Northern ireland (Emergency Provisions) Act 1991 scheme is already modelled on the provisions which are currently contained in Sections 1 to 19 of the Drug Trafficking Offences Act 1986, and these amendments will ensure that, as far as is appropriate, the two confiscation schemes will remain in step. Amendment No. 99, for example, will allow the court to make or revise a confiscation order at a later stage if further terrorist proceeds are discovered, while Amendment No. 104 will, in certain circumstances, allow terrorist proceeds to be confiscated where the defendant has died or absconded.
Moved, That the House do agree with the Commons in their Amendments Nos. 98 to 113en bloc.—(Earl Ferrers.)

§ 8 p.m.

§ Lord Harris of Greenwich
My Lords, we believe these powers are highly desirable. We welcome them, and we have no difficulty with them in any way.

1068

§ COMMONS AMENDMENTS

§ 114 Clause 31, page 33, line 9, leave out Clause 31.

§ 115 After Clause 31, insert the following clause:

§ The offence

§ '.—(1) An individual who has information as an insider is guilty of insider dealing if, in the circumstances mentioned in subsection (3), he deals in securities that are price-affected securities in relation to the information.

§ (2) An individual who has information as an insider is also guilty of insider dealing if—

(a) he encourages another person to deal in securities that are (whether or not that other knows it) price-affected securities in relation to the information, knowing or having reasonable cause to believe that the dealing would take place in the circumstances mentioned in subsection (3); or
(b) he discloses the information, otherwise than in the proper performance of the functions of his employment, office or profession, to another person.

§ (3) The circumstances referred to above are that the acquisition or disposal in question occurs on a regulated market, or that the person dealing relies on a professional intermediary or is himself acting as a professional intermediary.

§ (4) This section has effect subject to section (Defences).'

§ 116 After Clause 31, insert the following clause:

§ Defences

§ '.—(1) An individual is not guilty of insider dealing by virtue of dealing in securities if he shows—

(a) that he did not at the time expect the dealing to result in a profit attributable to the fact that the information in question was price-sensitive information in relation to the securities, or
(b) that at the time he believed on reasonable grounds that the information had been disclosed widely enough to ensure that none of those taking part in the dealing would be prejudiced by not having the information, or
(c) that he would have done what he did even if he had not had the information.

§ (2) An individual is not guilty of insider dealing by virtue of encouraging another person to deal in securities if he shows—

(a) that he did not at the time expect the dealing to result in a profit attributable to the fact that the information in question was price-sensitive information in relation to the securities, or
(b) that at the time he believed on reasonable grounds that the information had been or would be disclosed widely enough to ensure that none of those taking part in the dealing would be prejudiced by not having the information, or
(c) that he would have done what he did even if he had not had the information.

§ (3) An individual is not guilty of insider dealing by virtue of a disclosure of information if he shows—

(a) that he did not at the time expect any person, because of the disclosure, to deal in securities in the circumstances mentioned in subsection (3) of section (The offence); or
(b) that, although he had such an expectation at the time, he did not expect the dealing to result in a profit attributable to the fact that the information was price-sensitive information in relation to the securities.

§ (4) Schedule (Special defences) (special defences) shall have effect.

§ (5) The Treasury may by order amend Schedule (Special defences).

1069

§ (6) In this section references to a profit include references to the avoidance of a loss.'

§ 117 After Clause 31, insert the following clause:

§ Securities to which Part IV applies

§ '.—(1) This Part applies to any security which—

(a) falls within any paragraph of Schedule 1; and
(b) satisfies any conditions applying to it under an order made by the Treasury for the purposes of this subsection;

and in the provisions of this Part (other than that Schedule) any reference to a security is a reference to a security to which this Part applies.

§ (2) The Treasury may by order amend Schedule 1.'

§ 118 Clause 32, page 34, line 8, leave out 'discharging' and insert 'bringing to an end'.

§ 119 Page 34, line 9, leave out 'this Part' and insert 'subsection (1)'.

§ 120 Clause 33, page 34, line 19, leave out 'Part' and insert 'section and section 34'.

§ 121 Page 34, line 27, leave out from first 'securities' to "'price"' in line 34 and insert:

§ '(1A) For the purposes of this Part, securities are "price-affected securities" in relation to inside information, and inside information is "price-sensitive information" in relation to securities, if and only if the information would, if made public, be likely to have a significant effect on the price of the securities.

§ (1B) For the purposes of this section'.

§ 122 Clause 34, page 34, line 35, leave out from 'person' to 'he' in line 40 and insert 'has information as an insider if and only if—

(a) it is, and he knows that it is, inside information, and
(b) he has it, and knows that he has it, from an inside source.

§ (2) For the purposes of subsection (1), a person has information from an inside source if and only if—

§ (a)'.

§ 123 Page 34, line 41, leave out '(a)' and insert '(i)'.

§ 124 Page 34, line 43, leave out `(b)' and insert '(ii)'.

§ 125 Page 34, leave out line 44 and insert 'office or profession; or

§ (b) the direct or indirect source of his information is a person within paragraph (a).'

§ 126 Clause 35, page 35, line 2, leave out Clause 35.

§ 127 After Clause 35, insert the following clause:

§ Information "made public"

§ '.—(1) For the purposes of section 33, "made public", in relation to information, shall be construed in accordance with the following provisions of this section; but those provisions are not exhaustive as to the meaning of that expression.

§ (2) Information is made public if—

(a) it is published in accordance with the rules of a regulated market for the purpose of informing investors and their professional advisers;
(b) it is contained in records which by virtue of any enactment are open to inspection by the public;
(c) it can be readily acquired by those likely to deal in any securities—
1. (i) to which the information relates, or
2. (ii) of an issuer to which the information relates; or
(d) it is derived from information which has been made public.

§ (3) Information may be treated as made public even though—

(a) it can be acquired only by persons exercising diligence or expertise;
(b) it is communicated to a section of the public and not to the public at large;
(c) it can be acquired only by observation;
(d) it is communicated only on payment of a fee; or
(e) it is published only outside the United Kingdom.'

§ 128 After Clause 35, insert the following clause:

§ "Professional intermediary"

§ '.—(1) For the purposes of this Part, a "professional intermediary" is a person—

(a) who carries on a business consisting of an activity mentioned in subsection (2) and who holds himself out to the public or any section of the public (including a section of the public constituted by persons such as himself) as willing to engage in any such business; or
(b) who is employed by a person falling within paragraph (a) to carry out any such activity.

§ (2) The activities referred to in subsection (1) are—

(a) acquiring or disposing of securities (whether as principal or agent); or
(b) acting as an intermediary between persons taking part in any dealing in securities.

§ (3) A person is not to be treated as carrying on a business consisting of an activity mentioned in subsection (2)—

(a) if the activity in question is merely incidental to some other activity not falling within subsection (2); or
(b) merely because he occasionally conducts one of those activities.

§ (4) For the purposes of section (The offence) a person dealing in securities relies on a professional intermediary if and only if a person who is acting as a professional intermediary carries out an activity mentioned in subsection (2) in relation to that dealing.'

§ 129 After Clause 35, insert the following clause:

§ Other interpretation provisions

§ '.—(1) For the purposes of this Part, "regulated market" means any market, however operated, which, by an order made by the Treasury, is identified (whether by name or by reference to criteria prescribed by the order) as a regulated market for the purposes of this Part.

§ (2) For the purposes of this Part an "issuer", in relation to any securities, means any company, public sector body or individual by which or by whom the securities have been or are to be issued.

§ (3) For the purposes of this Part—

(a) "company" means any body (whether or not incorporated and wherever incorporated or constituted) which is not a public sector body; and
(b) "public sector body" means—
1. (i) the government of the United Kingdom, of Northern Ireland or of any country or territory outside the United Kingdom;
2. (ii) a local authority in the United Kingdom or elsewhere;
3. (iii) any international organisation the members of which include the United Kingdom or another member state;
4. (iv) the Bank of England; or
5. (v) the central bank of any sovereign State.

§ (4) For the purposes of this Part, information shall be treated as relating to an issuer of securities which is a company not only where it is about the company but also where it may affect the company's business prospects.'

§ 130 Clause 36, page 35, line 24, leave out Clause 36.

§ 131 Clause 37, page 35, line 35, leave out Clause 37.

§ 132 Clause 38, page 36, line 19, leave out 'A person' and insert 'An individual'.

§ 133 Clause 39, page 36, line 34, leave out 'A person' and insert 'An individual'.

§ 134 Page 36, line 34, leave out 'section 35' insert 'subsection (1) of section (The offence)'.

1071

§ 135 Page 36, line 40, leave out from 'which' to 'regulated' in line 42 and insert 'by an order made by the Treasury, is identified (whether by name or by reference to criteria prescribed by the order) as being, for the purposes of this Part,'.

§ 136 Page 37. line 1, leave out 'A person' and insert 'An individual'.

§ 137 Page 37, line 1, leave out 'section 36' and insert 'subsection (2) of section (The offence)'

§ 138 Clause 40, page 37, line 8, leave out 'Sections 35 and 36 do' and insert 'Section (The offence) does'.

§ 139 Page 37, line 8, after 'done', insert 'by an individual acting on behalf of a public sector body'.

§ 140 Page 37, line 11, leave out from 'reserves' to end of line 12.

§ 141 Page 37, line 13, after 'void' insert 'or unenforceable'.

§ 142 Page 37, line 13, leave out '35 or 36' and insert '(The offence)'.

The Earl of Caithness
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 114 to 142. It may be for the convenience of the House if I speak at the same time to the other amendments which relate to the insider dealing provisions of the Bill, Amendments Nos. 172 to 179.
Notwithstanding the swift demise by the hand of, and to the delight of, the noble Lord, Lord Wigoder, of that fine word "tippee", it was the noble Baroness, Lady Mallalieu, who said on Third Reading: There are some areas of the Bill which may need to be examined closely in another place, in particular the provisions in the final part of the Bill relating to insider dealing. In his heart of hearts the noble Earl will appreciate that those provisions may need further clarification". Those comments were echoed by other noble Lords. As my noble friend Lord Ferrers said, the Government have listened to those comments, just as they have listened to the valuable and helpful comments from various bodies with which they have been discussing the legislation.
The result is that the part has been extensively amended in another place. I hope that your Lordships will welcome the amendments which clarify significantly the provisions in the Bill relating to insider dealing.
The purpose of the amendments before your Lordships is threefold. They redraft the backbone provisions of Part IV: the definitions of the offence, defences and insiders. They amend existing provisions; these amendments include the introduction of a definition of when information has been "made public". The amendments also regroup the material, for example, to bring key definitions together.
Although the language employed in the Bill and the amendments is different, the overall effect is basically the same. I believe that this will become clear as I explain the amendments. I hope that your Lordships will forgive me if I do so in a way which focuses on the principal amendments which are before the House.
I shall start with Amendment No. 115 which defines the offence of insider dealing by acquiring and disposing of securities, encouraging another to do so and disclosing inside information, in a single clause which defines all three forms of the offence. In broad terms, therefore, it replaces Clauses 35 and 36. It 1072 remains an essential requirement of all three forms of the offence that an individual has to have information as an insider.
The other essential requirement of the first form of the offence (dealing in securities) is that the individual deals in securities which are price-affected securities in relation to the information in circumstances which are set out in the clause. Those circumstances are, as in the Bill as approved by the House, that he deals either on a regulated market or that he relies on, or is himself, a professional intermediary. The second and third forms of the offence are disclosure of information which could be used for insider dealing and encouraging someone to deal. I should draw your Lordships' attention to the fact that in order to close off a loophole which could be exploited by the unscrupulous, other forms of the offence are slightly modified in the amendment. The encouraging offence is aligned more closely with our existing legislation and applies to encouraging where someone knows, or has reasonable cause to believe, that the person receiving the encouragement would deal in the circumstances covered by the dealing offence. The disclosing form of the offence has also been adjusted to make it clear that it does not apply to someone who discloses information in the proper performance of the functions of his employment, office, or profession.
Amendment No. 116 inserts a new clause into the Bill, which provides defences to the offence of insider dealing. The new clause therefore replaces Clause 37 of the Bill. As well as reflecting the amendments made to the offence, the new clause particularises the defences which the Bill provides. That change reflects concerns put to the Government about the need for a greater degree of certainty about the effect of the defences.
The new clause provides that, so far as concerns dealing, there is no offence in three particular circumstances. The first is that the person dealing did not expect to make a profit attributable to the fact that he possessed information which was price sensitive in relation to the securities in question.
The second defence applies where someone believed, on reasonable grounds, that the information had been disclosed widely enough to ensure that none of those taking part in the dealing would be prejudiced by not having the information. That defence would be applicable to properly conducted corporate finance transactions such as underwriting offers of listed securities.
The third defence applies where someone can show that he would have done what he did even if he had not had the information. Analogous defences are also provided for the encouraging form of the offence. So far as concerns disclosure, defences are provided where no dealing was expected or dealing was not expected to lead to someone making a profit attributable to the fact that the securities concerned were price affected in relation to the information in question.
In addition to the defences I have just mentioned, there are also of course the defences provided by the new schedule which Amendment No. 172 inserts into the Bill. The new schedule is derived from Schedule 2 1073 of the Bill and carries forward, in amended form, defences related to market making, price stabilisation, and market information. The amendment extends the defences to the encouraging form of the offence as well as its dealing form. They also specify circumstances in which it is reasonable for someone to use market information.
The amendments to the definition of insider dealing (Amendments Nos. 122 to 125) are consequential on the recasting of the offence provided by Amendment No. 115. Who does and does not fall within the ambit of the legislation is not changed by these amendments.
That concludes what I have to say about what I described earlier as the backbone provisions of the part. Accordingly, I now turn to the other amendments to the part, and I shall focus particularly on the amendments which introduce new clauses into the Bill.
Amendment No. 117 provides a new clause which defines the securities to which the part applies. The new clause is, of course, derived from the first part of Clause 31 of the Bill. I should add here that one of amendments to Schedule 1, which sets out the types of securities to which the legislation applies, extends securities to include contracts whose value depends upon the interest payable on money placed on deposit in order to catch certain contracts on short-term interest rates.
Amendment No. 127 introduces a new clause relating to when information is to be regarded as having been made public. When information has and has not been made public is the single issue which has caused most concern about this part and was the subject of valuable discussion during your Lordships' earlier consideration of the Bill.
The new clause takes the form of a non-exhaustive provision which contains two elements. First, it describes circumstances in which information is definitely to be regarded as having been made public. Those include publication of information under the rules of a market or circumstances where the information is readily accessible to investors.
Secondly, it identifies situations where the circumstances in which the information is disclosed may cast doubt on whether the information could be treated as having been made public: it provides that where those circumstances apply the information may have been made public. That covers, for example, situations involving payment of a fee.
Amendment No. 128 introduces the definition of professional intermediaries into the main body of the Bill. As it left this House it formed part of a schedule.
Amendment No. 129 brings together definitions of various terms employed in the part. The new clause provides definitions of regulated markets, issuers, companies and public sector bodies, and makes it clear that information shall be treated as relating to an issuer if it may affect its business prospects. Minor amendments have been made in bringing the provisions together.
Before concluding, I should like to speak briefly about banks' ability to be involved in debt equity swaps in order to remove any possible doubt which might arise from the debate in another place. 1074 Restructuring through debt equity swaps generally involves the issue of new equity, in which case it will be outside the scope of the legislation, because the legislation will apply to securities which are, rather than are to be, listed. If existing listed equity is involved in a transaction, the second of the recast general defences will apply, where, as will be the case in a debt-for-equity swap, the parties involved in the transaction possess the relevant information. There can be no question therefore of a bank which is involved in a properly conducted corporate restructuring falling foul of the legislation.
My comments have focused upon the most important of the features of the amendments to the insider dealing provisions contained in the Bill. I commend them to your Lordships as improving and clarifying the legislation. I am sure that they will be welcomed by the whole House.
Moved, That the House do agree with the Commons in their Amendments Nos. 114 to 142.— (The Earl of Caithness.)

§ Lord Wigoder
My Lords, I am grateful to the noble Earl for his clear and lucid explanation of the amendments which we have all followed with the greatest of interest. One of the unhappy features of the Bill's passage through your Lordships' House was that when it came to Part IV (insider dealing) those of us who were taking part in the proceedings found ourselves in receipt of no substantial assistance from any of the professional organisations which were deeply involved in the intricacies of this complicated subject. I believe that I am right in saying that none of the Members of your Lordships' House who are members of those organisations found it possible to be here in Committee and to help us by commenting on the clauses.
In those circumstances it was hardly surprising that on Third Reading considerable anxiety was expressed about these provisions. It was assumed that substantial amendment would be necessary in another place. I welcome the amendments. I should be grateful if the noble Earl would assist the House about the organisations which were consulted before the improvements were agreed.

§ Lord Harris of Greenwich
My Lords, the noble Earl was absent when I referred to the report of the Hansard Commission on the legislative process. The noble Earl, Lord Ferrers, will be glad to know that I do not propose to repeat those quotations. All that I wish to say to the noble Earl, Lord Caithness, is that most of the criticisms in that report about the way in which governments legislate have been replicated in this Bill. There was a woeful lack of consultation before it was published. Admittedly we have a series of amendments as a result of that consultation. However, I hope that the two economic departments which are involved in this part of the Bill—that is both officials and Ministers—will have their attention drawn to what the Hansard Commission stated about the matter. We should not be forced to legislate in this manner with consultation beginning after the publication of the Bill. That is the criticism to which 1075 the Government were subjected when the Bill was first published and I hope that we shall not have a repetition of that.

The Earl of Caithness
My Lords, I note what the noble Lord, Lord Harris of Greenwich, said and I shall draw that to the attention of my right honourable friend the Chancellor of the Exchequer. As regards the comments made by the noble Lord, Lord Wigoder, I understand the frustration at not having the proper information when the matter could have been debated using the expertise of your Lordships' House. I, too, was disappointed that those involved in the issue on a day-to-day basis were unable to participate in our debates and that more representation was not made at an earlier stage. If it was, the noble Lord, Lord Harris, might not have made those comments.
On Question, Motion agreed to.

§ 8.15 p.m.

§ MOTION AND AMENDMENTS TO BE MOVED ON CONSIDERATION OF COMMONS AMENDMENTS

§ References are to HL Bill 121]

§ 143A Lord McIntosh of Haringey to move, That this House do disagree with the Commons in their Amendment No. 143 but do propose the following amendment in lieu thereof—

§ Before Clause 42, insert the following new clause:

§ Adjustment of fines

§ (".—In section 18 of the Criminal Justice Act 1991, after subsection (2) there shall be inserted the following subsection—

§ "(2A) Rules made by the Lord Chancellor in exercise of the powers conferred on him by paragraph (b) of subsection (2) above shall provide for an expenditure allowance to be deducted from the offender's weekly income before his disposable weekly income is determined, and the size of such allowance shall vary according to which of ten or more bands of income levels includes the offender's income."")

§ Lord McIntosh of Haringey
My Lords, I beg to move that this House do disagree with the Commons in their Amendment No. 143 but propose the amendment printed on the Marshalled List in lieu thereof.
We move to the extremely important issue which was introduced into the Bill in May of this year—and only in May—of the fixing of fines and of unit fines. I shall not weary the House with the long history of that subject. Suffice it to say that the Criminal Justice Act 1991 was enacted when almost 19,000 people were imprisoned in this country for the non-payment of fines. They made up almost a quarter of the total number of people imprisoned in this country. Generally they were imprisoned for only a short time and therefore at any one time their proportion represented substantially less than one quarter. Nevertheless, the costs of processing such short prison sentences must be considerable. They include the costs of reception, discharge, the paper work involved and the fact that they were put into local prisons which are the most overcrowded. That is quite apart from the justice of the matter because one must reach the 1076 conclusion that a large number of people were imprisoned for not paying fines which they could never have paid when they were imposed. That was the conclusion of the 1990 Home Office evaluation paper which stated that poor offenders had in the past been fined more than they could afford.
It was that situation—a very serious situation, I hope that your Lordships will agree—which caused the Criminal Justice Act 1991 to be enacted. It is not as though that Act were dreamt up at short notice. It does not suffer the defects which this Bill suffers. The scheme of unit fines was produced after extensive experimentation in Basingstoke, Bradford, Swansea and Teesside and after the Home Office evaluation study reached the conclusion that there were falls of between 24 and 27 per cent. in the rates of imprisonment for the non-payment of fines in three of the courts which imprisoned people for non-payment. Basingstoke had never done so.
It is not as though the 1991 Act was ill-considered, as I have said. But what has happened? Seven months after the Act came into force in a more rigid way than should have been the case, everyone panicked. That came through to many magistrates' courts which could not have been aware of the experience of the four experimental courts. The panic came through to Conservative MPs and to others. The Government, having denied that there was anything wrong with the 1991 Act, and having denied that any change was required—and the Bill had been in Parliament since November of the previous year—suddenly in May changed their mind and proposed to remove the provision of unit fines.
That is not a way in which we should react to issues of public policy and it is not a way in which we should treat Parliament. The amendment does not suggest that we should return to the unit fine provision of the 1991 Act without alteration. We are suggesting that there are relatively simple and easily understood ways of dealing with the problem of unit fines without some of the grotesqueries which occurred. They were caused largely by the fact that the maximum units were introduced at far too low a level of income and because there was no provision for dealing with the problems of those who for whatever reason failed to submit details of their income. We propose that the Lord Chancellor should make rules which provide for an expenditure allowance to be deducted from the offender's weekly income before his disposable weekly income is determined. Those rules should apply to all magistrates' courts and not merely to those which continue to use the unit fines system.
One of the worst features of the Bill as amended will be that although Ministers have clearly said that they do not object to magistrates' courts using a unit fines tariff they will not insist on it. As a result we shall have the worst of all possible worlds. We shall have enormous differences between one magistrates' court and another in the way in which they deal with the size of the fine in relation to an offender's income. Some magistrates' courts will use a unit fines system, as Basingstoke continues to do, and some will not. Some, whether they do so or not, will behave differently from others. There will be no consistency of practice and we 1077 shall have exactly the same kind of problem as we had with the imprisonment for non-payment of fines before the passage of the 1991 Act.
It must be recognised that acceptance of my amendment would rule out Amendment No. 180, which is the schedule referred to in Amendment No. 143. But of course, Amendment No. 180, the proposed new schedule, is defective in any event. In particular, it seems to suggest that it is quite an acceptable procedure for somebody to write in pleading guilty and then, and only then, to be asked for a statement of his financial situation before a fine is imposed. I put it to the noble Earl, in the hope that it can be incorporated in regulations rather than on the face of the Bill, that it is surely better that when people are notified of their opportunity to plead guilty by post without attending the court, at the same time they should be sent a straightforward form dealing with their financial situation so that the court can, without further inquiry, immediately impose a fine. That may be merely an administrative matter but it would save a considerable amount of court time.
Where the unit fine system has been applied with a degree of flexibility, which would be provided for with the amendment, it has worked. Where it has worked, it has reduced the prison population—the number of admissions to prisons for non-payment of fines. Surely we should take this opportunity to apply a more flexible system which recognises the ability of offenders to pay the fines that are imposed. I beg to move.

§ Lord Wigoder
My Lords, I prefer Amendment No. 143. I find it difficult to believe that fines can be satisfactorily assessed by somewhat artificial arithmetic formulae. I should much sooner see those fines being assessed by magistrates exercising their enormous pool of common sense, experience and knowledge of the world. Of course, they are advised on legal matters by a clerk to the justices. In those circumstances, although this may have been an experiment worth trying, I believe that within the six or seven months of its duration it proved not to be successful. As I say, I prefer the government amendment.

§ Baroness Macleod of Borve
My Lords, I begin by saying that I have been in contact with the Magistrates' Association and it wishes me to make one specific point to the Minister. It hopes that magistrates will not be required to put all the amendments into effect before 1st November because time is needed for the revision of sentencing guidelines and for training.
I was a magistrate for 30 years; I have had experience of sitting in Crown Courts; and I was a member of the Parole Board. Therefore, I have an interest in whatever the Government decide to do when dealing with criminal matters. I shall not make a Second Reading speech. I shall speak to the amendments.
I understand that we are at present dealing with Amendment No. 143A. In consequence of what the noble Lord, Lord McIntosh, said, I ask the Minister whether it is intended that a means form should be 1078 sent out with the original summons. I am not sure whether that would prove to be helpful. I must say that not all the defendants are as honest as some other people in the country. Even if they have signed a form, it is not always necessarily completely correct. But one would suppose that the guidelines which would have to be sent out by the Magistrates' Association and the Lord Chancellor would have to incorporate that.
I ask also whether, as the noble Lord, Lord McIntosh, suggests, the guidelines for payment are based on the weekly take-home pay. As I am well aware, there are various ideas as to how fines should be paid, when they should be paid and what the punishment should be if they are not paid. Many changes will be made to the system that was used in my day. On the other hand, it is very much better to leave such matters as far as possible to the magistrates concerned.
Having been a magistrate for very many years and having served as a member of the Lord Chancellor's Advisory Committee for Middlesex for 12 years, I pay tribute to the common sense of the magistracy. If your Lordships decide that the magistrates should not be trusted to use their own common sense, as they have always done, and that laws and guidelines should be laid down which are almost impossible for them to fulfil, so be it. But I feel that the experiment has been tried. It has caused trouble in most of the country. I hope that the Minister will give us an assurance that the amendment proposed by the noble Lord, Lord McIntosh, will not be agreed to and that we shall accept government Amendments Nos. 143 and 180.

§ Lord Elton
My Lords, I did not take part in our debates at earlier stages of the Bill. However, in many respects the Bill that we discussed then was a different Bill from that which we are now discussing. I am tempted to take part now and I took part in the proceedings which resulted in the unit fine experiment being implemented. I remain persuaded that it has some merit.
While I do not recommend the amendment in the name of the noble Lord, Lord McIntosh, it would be extremely helpful were we to have some assurances from the Government before we dismiss it.
I was rather surprised to hear the noble Lord, Lord Wigoder, whose opinion I greatly respect, refer to the experiment as a failure. I believe that that is how he described it. I have a summary of the Home Office Research and Planning Unit Paper No. 59 sent to some of your Lordships by NACRO. That report gives one to understand that courts were able to obtain sufficient information about offenders' means without undue difficulty by using a simple form; that fines imposed on the poorest offenders were reduced to more realistic levels; that disparities between courts as regards fines imposed on poorer offenders were significantly reduced; that fines were paid more quickly and there was a lower rate of default; and that there was a large drop in the number of people imprisoned for non-payment. At three of the four courts there were falls of between 24 per cent. and 27 per cent. in the number of people imprisoned for fine default. As the noble Lord, Lord McIntosh, has already said, the 1079 fourth court, Basingstoke, rarely imprisoned offenders for fine default even before the experiment. The evaluation report concluded: The consensus among magistrates and court staff at all the courts involved in the experiments was that unit fines were an improvement on the previous system". I do not believe that that experiment can be rated as a failure if the description is accurate. What may have been a failure was the way in which it was followed when there was an attempt to introduce the scheme on a wider scale. One would not wish to see some of the absurdities repeated, although the media were much fonder of telling one of ridiculous fines when they were promulgated than of telling one when they had been reduced to a fraction if they were too much, or increased if they were too little before being enforced. Therefore, the country received a falsified view of what was going on and of the experiences of the courts.
I hope that the principle that the unit fine scheme introduced can be preserved; that is to say, that ability to pay shall be a significant factor in the decision of the level of fine as well as other considerations. It is ridiculous for a millionaire to be fined the same amount as someone almost on social security for a similar offence. That is so obvious that it ought not need to be said.
In replying to the debate, I hope that my noble friend will say what steps will be taken in the form of guidelines or other means for ensuring that the fixing of the level of fines, upon which a good deal of the repute of our criminal justice system depends, can be made a visibly influential part of the machinery. The courts may then be able voluntarily to follow a unit fine scheme of their own and call it something else.
However, I hope that my noble friend will say that we shall return in some way to a position in which one can expect the level of fines to bear a relationship not only to the seriousness of the offence but also the ability to pay. If someone rich has a small fine, it has no relationship to the severity of the offence. The level of hurt is infinitely less than for someone with a very small income. I hope that I have made the point clear and that my noble friend will be able to incorporate some response in his reply.

§ 8.30 p.m.

§ Baroness Seccombe
My Lords, I feel unable to support the amendment of the noble Lord, Lord McIntosh of Haringey. I believe that it would be bureaucratic and detailed. It would take away the flexibility of magistrates.
I am delighted to support the government amendment. However, we should recognise that the principle of unit fines was good. Sadly, in practice it produced a straitjacket for magistrates and eliminated from them all flexibility and discretion.
Although pilot schemes were held in various courts around the country with qualified success, all that experience went out of the window when the maximum financial penalty was raised five-fold. However, I believe that the intensive training that we as magistrates received for the unit fine system will not be wasted. I am sure that the three issues in the 1080 amendment for consideration will be addressed in an even more sensitive and sensible manner: the financial circumstances of the offender; the seriousness of the offence; and the circumstances of the case.
I congratulate the Minister for responding to the anxieties of my colleagues in such an expeditious way.

§ Lord Harris of Greenwich
My Lords, clearly there has to be a relationship between the means of an offender and the level of fine. Indeed, it would be an absurdity to argue the reverse. I do not have difficulty with what the noble Lord, Lord Elton, said about some form of voluntary system.
I believe that it is only fair to say that the Government were in a mess over the system. There was no easy solution. Having had the good fortune to sit in on one or two Home Office crisis meetings. I can imagine the different arguments which would have been deployed when one has to deal with the great crisp packet crisis. I refer to the gentleman who was unemployed and was fined about £1,200. We cannot have a situation in which the law is made to appear absurd; and that was the problem.
There is no easy solution. One could argue that the Government might have taken some action other than the course that they have adopted. However, I believe that they were in genuine difficulties. I regret that the experiment —perhaps I should say "full scheme" or I shall be reproved by the noble Lord, Lord Elton—did not succeed. However, it did not; we have to recognise the reality of that. Such critical comment was made that I believe it undermined the integrity of the system. That being so, the Government had a difficult choice. All that we can do today is to regret what happened and to agree with what the noble Lord. Lord Elton, said; namely, that if any form of voluntary system could be introduced, speaking for myself. I would welcome it greatly.

Earl Ferrers
My Lords, I am grateful to your Lordships for the understanding way in which you have dealt with the problem. It may be convenient if we discuss Amendments Nos. 143 and 180 at the same time because they all cover the same point.
My noble friend Lord Elton hoped that we shall return to a point where the level of fines relates to the ability to pay. That is precisely the point that we wish to have in mind. The level of fine which is imposed by a court should not only reflect the seriousness of the offence for which it is being imposed, it should also take into account the offender's means. That principle still remains.
Amendment No. 143 will place upon the courts a duty to inquire into the financial circumstances of an offender before setting a fine. This preserves one of the most important features of the unit fine scheme because, although many magistrates did make such inquiries before the unit fine scheme was introduced, they had no duty to do so, and now they have. It also extends that duty to the Crown Court where there has not, up to now, been any explicit requirement to make inquiries of this kind.
But, in contrast to the present arrangements, the new provisions will allow courts to decide the kind of inquiry which would be appropriate in each individual 1081 case. There will be no prescribed statutory form although courts will, of course, be free to devise a form for their own local use if they conclude that that would best suit their needs.
The amendment also stipulates certain factors which a court has a duty to consider when it is determining how much an offender should be fined. Under the new arrangements, each fine must reflect the court's view of the seriousness of the offence but, in setting a fine which reflects the seriousness of the offence, we intend that courts should be required to take into account the circumstances of the case and, in particular, the offender's financial position.
My noble friend Lord Elton was concerned that those requirements should acknowledge that the same fine can have a different impact on different offenders; indeed, so it can because of the offenders' different financial circumstances. A fine might represent the equivalent of a month's food and rent for one offender and therefore might result in significant hardship for him and his family. But, for another, the same fine might be nothing more than loose change or the cost of a night out on the tiles—an inconvenience at most. A court may consider that different fines would reflect the seriousness of the same offence for offenders of differing means.
My noble friends Lord Elton and Lady MacLeod, and the noble Lord, Lord Harris, were concerned about guidelines for the courts. The new statutory provisions require means to be taken into account. I understand that the Magistrates' Association will be issuing guidance on the new fining provisions, including sentencing guidelines, and the Home Office will be issuing a circular explaining the change of law in that area.
My noble friend Lord Elton and the noble Lord, Lord Harris, were concerned that the courts should be free to apply their own voluntary schemes if they wish to do so. The new provisions restore discretion to the courts. If individual courts find it helpful to devise their own informal local unit model which allows them to apply the new provisions to fine an individual offender justly and sensibly, perhaps by providing a starting point for sentences, then they will be free to do so. The government amendment explicitly contains the power which was first conferred on magistrates and Crown Courts by the Criminal Justice Act 1991 to raise as well as lower a fine in order to take account of an offender's financial circumstances. In our view, that is central to retaining the principle that courts should be able to set fines which impose, so far as is reasonably practicable, equivalent hardship for all.
We do not think, though, that a fine should be raised or lowered to such a degree that it no longer bears any reasonable relationship to the offence which is committed. An offender with limited means should not be fined a negligible sum for a serious offence. To do so diminishes the seriousness of the offence in the eyes of the public.
However, at the same time we do not think that affluent offenders should be fined thousands of pounds for minor offences—a fact which some of your Lordships may find reassuring, even though to others it may be academic. That means, therefore, that there 1082 will be a range of possible fines which reflect the seriousness of the offence. The point at which the fine is fixed in any individual case will depend on the financial circumstances of the offender. We believe that sentencers will use their discretion to apply the new provisions both sensibly and justly. The remaining provisions of Amendment No. 143 are consequential. The amendment also brings into operation a schedule which is created by Amendment No. 180.
Amendment No. 143A in the name of the noble Lord, Lord McIntosh, introduces a different matter altogether. It would insert a new clause into the Bill which suggests that the Government should have amended the unit fine scheme rather than have abandoned it. I was grateful to the noble Lord, Lord Wigoder, for saying that he approved the Government's amendment. I was also grateful to my noble friend Lady Seccombe for saying so too. The noble Lord, Lord Harris of Greenwich, will recognise the difficulty that we were in. We recognised that there was a significant problem with the operation of the unit fine scheme. Before we changed it we looked at all the options for amending it. We do not think, though, that introducing a system of banded expenditure allowances, or indeed any other refinement, would have solved the problems which sentencers have experienced with the scheme.
The process of determining local allowances for expenditure and applying them properly in individual cases is already a complicated feature of the unit fine scheme. A system of banded allowances would require magistrates to devise and apply a whole series of such allowances—perhaps 30 or more—for offenders of different incomes. To do this they would need to calculate the probable expenditure of offenders in their local area on a whole range of essential items such as food, housing, clothing, council tax, housing and water rates. And they would need to undertake the same process for the offender's dependants. That simply is not realistic. It would make it wildly complicated and completely incomprehensible.

§ Lord Elton
My Lords, before my noble friend leaves that point, one thing still worries me. It is that the efficiency of the system seems to depend on the honesty of the accused—or, as he later is, the convicted—in declaring his means and his liabilities. Can my noble friend tell us what will become of the convicted if it later transpires that he has succeeded in misleading the court? In other words, what is the onus or the pressure on a person to declare that he has sufficient money to be fined a reasonable amount?

Earl Ferrers
My Lords, of course it is up to any person to he honest in court. If he is not honest and he misleads the court, he is in trouble. Under Section 20 of the Act, which is amended by Amendment No. 180, if misleading information is given in response to a financial circumstances order, an offence is committed which carries three months' imprisonment and/or a fine up to £2,500. I would hope that that would have what one might call a slowing up effect on people's desire to mislead the court.

1083

§ Lord Elton
I am most grateful.

Earl Ferrers
My Lords, I think—

§ Lord Monkswell
My Lords, I am grateful to the noble Earl for giving way. Can he advise the House whether the ceiling on fines under the unit fine system is likely to be changed? Perhaps I can give the noble Earl an example. Earlier this year I was fined £400 for a speeding offence which I felt was an excessive burden although I duly paid the fine on the basis that my understanding was that if someone—one should bear in mind that my income is round about £12,000 a year —appeared in court who was in exactly the same situation and his income was £120,000 a year, he would be fined £4,000. If his income was £1.2 million a year, my understanding was he would be fined £40,000. One can imagine the sense of unfairness I felt when I realised later that there was a ceiling and that very rich people would not be paying pro rata fines; effectively they would get off fairly lightly. Can the noble Earl please advise me whether this terrible unfairness will be correcteed by these measures?

§ 8.45 p.m.

Earl Ferrers
My Lords, this brings the position into reality. The position is that there are certain levels of fines. Each level enables a maximum amount of fine to be obtained. The purpose of the unit fine—it was a complicated purpose—was to achieve continuity on the basis of units, the maximum of which came to the top of the maximum of the level of unit fine. In other words, if a level 3 fine was a certain maximum, then the amount of units one could obtain could not exceed that amount. What we are saying is that the same levels will obtain now as obtained then but it will be up to the court to determine, up to that level, how much the person concerned can afford to pay and how much, in all the circumstances, it is right for him to pay. It is not our intention at the moment to raise the levels. They have been raised relatively recently and they could be raised in the future. For any particular offence there is a maximum which can be charged and the amount charged per person will depend upon the circumstances of the individual and the particular case.
I now return to the amendment of the noble Lord, Lord McIntosh. Even if local bands could be realistically and consistently devised, such a scheme would still not produce satisfactory results. However frequently the bands were set—even at £10 intervals —there would be cases where, by earning a few pounds more, an offender would move into a higher income band where he would attract a higher allowance, which would result in him paying a lesser fine. In this case, the more he earns, the less he will pay. That cannot be right. The whole purpose of justice is that it must not just be done but be seen to be done. If you do not understand it, it is not seen to be done. And in this case even if you do understand it, justice is still not done.
My noble friend Lady Macleod asked whether these arrangements would be implemented before November. I can inform her that we are considering the date of the implementation of these arrangements. 1084 I am sure your Lordships would agree that once Royal Assent is given, we must try to implement the arrangements as soon as possible so that everything can settle down and the courts can get on with their proper job.
The noble Lord, Lord McIntosh, asked whether people could plead guilty by post. When defendants are invited to plead guilty by post, they can, of course, be offered the chance to tell the court about their means but they should not be obliged to do so unless it is clear that they are pleading guilty. For all those reasons I hope your Lordships will agree that the amendments made in another place are correct and that it would be best not to amend them by the amendment of the noble Lord, Lord McIntosh of Haringey.

§ Lord McIntosh of Haringey
My Lords, it will be obvious that I am not happy with that situation. I am grateful for the comments of the noble Lord, Lord Elton, and for his support for the principle of unit fines. I am also grateful for the thoughtful and cautious approach of the noble Baroness, Lady Macleod, who has immense experience and the views of the Magistrates' Association behind her.
The fact of the matter is that the situation before 1991 did not work. It resulted in far too high a level of committal to prison, which happened despite the fact that it was the almost universal practice—in fact I suggest it was the universal practice—of magistrates to ask defendants what their income was. Therefore the duty to ask for financial information is not very much greater than it was before 1991.
I am sorry that the result should be that the Government are determined to abandon the unit fine scheme rather than amending it as we suggest. I suspect that there will continue to be guidance from the Home Office to magistrates. Of course, we shall have a Criminal Justice Bill in the next Session, in which it may be necessary to return to this issue. In those circumstances, I beg leave to withdraw my Motion.

§ Amendment No. 143A, as an amendment to Commons Amendment No. 143, by leave, withdrawn.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 143.
Moved, That the House do agree with the Commons in their Amendment No. 143.—(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 144 Before Clause 42, insert the following clause:

§ Powers of courts to deal with offenders

§ '.—(1) In section 1 of the Criminal Justice Act 1991 (restrictions on imposing custodial sentences), the following shall be substituted for subsection (2) (a)—

§ "(a) that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a sentence can be justified for the offence; or".

1085

§ (2) In section 2 of the Act of 1991 (length of custodial sentences), in subsections (2) (a) and (3), for the word "other" there shall be substituted "one or more".

§ (3) In section 3 of the Act of 1991 (procedural requirements for custodial sentences), in subsection (3) (a), the words "or (as the case may be) of the offence and the offence or offences associated with it," shall be inserted after the word "offence".

§ (4) In section 6 of the Act of 1991 (restrictions on imposing community sentences)—

(a) in subsection (1), for the words "other offence" there shall be substituted "or more offences"; and
(b) in subsection (2) (b), for the word "other" there shall be substituted "one or more".

§ (5) In section 7 of the Act of 1991 (procedural requirements for community sentences), in subsection (1), the words "or (as the case may be) of the offence and the offence or offences associated with it," shall be inserted after the word "offence".

§ (6) For section 29 of the Act of 1991 (effect of previous convictions) there shall be substituted—

§ "Effect of previous convictions and of offending while on bail.

§ 29.—(1) In considering the seriousness of any offence, the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences.

§ (2) In considering the seriousness of any offence committed while the offender was on bail, the court shall treat the fact that it was committed in those circumstances as an aggravating factor.

§ (3) A probation order or conditional discharge order made before 1st October 1992 (which. by virtue of section 2 or 7 of the Powers of Criminal Courts Act 1973, would otherwise not be a sentence for the purposes of this section) is to be treated as a sentence for those purposes.

§ (4) A conviction in respect of which a probation order or conditional discharge order was made before that date (which, by virtue of section 13 of that Act, would otherwise not be a conviction for those purposes) is to be treated as a conviction for those purposes.".

§ (7) In subsection (1) of section 12D of the Children and Young Persons Act 1969 (duty of court to state in certain cases that requirement is in place of custodial sentence), in paragraph (ii) (a) for the words "other offence" there shall be substituted "or more offences".

§ (8) In section 38 of the Magistrates' Courts Act 1980 (committal for sentence on summary trial of offence triable either way), in subsection (2) (a), for the word "other" there shall be substituted "one or more".

§ (9) The amendments made by this section shall apply in relation to offenders convicted (but not sentenced) before the date on which this section comes into force as they apply in relation to offenders convicted after that date'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 144. This amendment deals with sentencing matters and makes three significant changes to the powers of the courts.
The most significant of these amendments—and certainly the one which has received the most attention—reverses the effect of Section 29 of the 1991 Act so that courts will be allowed to pay full and proper regard to an offender's previous convictions and to have regard to any failure to respond to previous sentences when forming an opinion about the seriousness of the offence or offences. This change does not alter the fundamental principle which lies 1086 behind the 1991 Act, which is that the sentence should reflect the seriousness of the offence. We have, though, realised that considerable concern has been expressed by sentencers—including the senior judiciary and others—that, in some cases, the seriousness of the current offence can only adequately be assessed if previous convictions are taken into account and if the response of the offender to previous sentences, which may have been imposed upon him, are also considered. We are, therefore, restoring to sentencers the discretion which they need to sentence justly in individual cases.
The amendment also requires that where an offence is committed on bail this should be regarded by the court as an aggravating factor in weighing the seriousness of the offence. In most cases, this will result in a heavier sentence than would otherwise have been the case. The amendment gives effect to the Government's manifesto commitment to strengthen the powers of the court to deal with those who offend on bail. It has been drafted following consultation with the judiciary. Your Lordships will know that the Government share the widespread public concern about offending on bail, and I hope that this will be an added inducement for the courts to take tough action against those who offend while on bail.
In subsection (1) the amendment also removes the restriction which was imposed by the Criminal Justice Act 1991 which allows the courts to consider only one offence and one other when forming an opinion as to whether custody is justified. The amendment also removes the restriction where it appears elsewhere in the Act.
Moved, That the House do agree with the Commons in their Amendment No. 144.—(Earl Ferrers.)

§ AMENDMENT TO COMMONS AMENDMENT NO. 144

§ 144A Before Clause 42, in subsection (1), leave out inserted paragraph (a) and insert:

§ (""(a) that the offence was so serious, or the overall seriousness of the offence and one or more offences associated with it was such, that only such a sentence can be justified for the offence; or"")

§ Lord McIntosh of Haringey
My Lords, I beg to move Amendment No. 144A as an amendment to Commons Amendment No. 144. I should like to speak also to Amendments Nos. 144B, 144C and 144D.
This is, of course, an immensely complicated problem. It is probable that no formulation in legislation will get the matter entirely right. It is an issue where the practice of the judiciary and the magistrature cannot be completely constrained but where behind those practices there are a number of principles which ought as far as possible to be made effective by legislation.
Amendment No. 144A seeks to change the phrase: the combination of the offence and one or more offences associated with it to the phrase: the overall seriousness of the offence and other offences. A more complicated version has been proposed by Justice, but it has the same aim.
1087 The purpose is to maintain a relationship between the sentence and the gravity of the current offence with which the court is concerned. We have to try to avoid sentencing a petty thief as though he were a more serious criminal. Again, we must refer back to the situation which existed before the Criminal Justice Act 1991 when it was possible for petty thieves, particularly those who were accustomed to spending most of their lives in prison, to be in prison for a very long time for minor offences. That was called the stepladder.
Amendment No. 144B is concerned with a similar element in the same issue. The Government have rightly said that more than two offences can be taken into account in determining the sentence. I hasten to say that I believe that the government amendments improve the position under the 1991 Act. Certainly, it is perfectly proper that a more severe sentence should be passed on an offender with previous convictions. However, I suggest to your Lordships that the sentence should not be out of all proportion to the seriousness of the current offence. In other words, we must not revert to the situation before the 1991 Act.
In 1980 the Court of Appeal said that an offender should not be sentenced for the offences which he has committed in the past and for which he has already been punished. That is an important principle which we ought not to forget. Otherwise, if we did not observe that principle, somebody guilty of repeated burglaries, however small, could be sentenced more severely than a rapist. I believe that the term here is sentencing on the record. We need a limiting principle of proportionality to the offence before the court.
Amendment No. 144C is a fall-back position. It accepts the wording in Amendment No. 144 but suggests that it would be desirable that the court should state which previous convictions or which failure to respond is taken into account and why it is relevant to do so. I should have thought that that was relatively uncontroversial. I may well be reassured by being told by the Minister that that could be incorporated in guidance.
Amendment No. 144D refers to the matter to which the Minister referred in his introduction: namely, the question of offences committed while on bail. I certainly agree with the Minister that there has been a great deal of public anxiety about offences committed on bail. However, I suggest that there could be circumstances when there is no aggravation and no reason for a more severe sentence just because somebody is on bail.
I should like to put two examples to the Minister. The first is where the original offence is a serious offence but the new offence is either minor or completely irrelevant. For example, the original offence might be armed robbery but the new offence might be a parking offence or drunk and disorderly. I suggest that under those circumstances there is no aggravation as a result of the offence being committed while on bail.
The second point which I should like to put to the Minister is the case where the result of offending on bail is the revocation of bail. In that event the offender 1088 is already suffering significant extra punishment and it might be that in the circumstances in some cases there would be no justification for saying that there was aggravation in the particular case.
Therefore, we propose simply to leave out the word "shall" and insert "may" so that there is a degree of discretion in the cases to which I have referred.
As I said, these are difficult matters and are not ones which will ever be resolved finally. But we do not want to return to the situation before 1991. The Government are making a worthwhile attempt to improve the law with these amendments. We simply suggest that the law could be improved even more with the further amendments. I beg to move.
Moved, that Amendment No. 144A, as an amendment to Commons Amendment No. 144, be agreed to.—(Lord McIntosh of Haringey.)

§ Lord Ackner
My Lords, before embarking on comments on the amendments, perhaps I may seek to meet the proposition that there was something, back in 1991, which called for the censure which the noble Lord, Lord McIntosh, has just uttered. Over 20 years ago I used to preside over sentencing conferences. The principles of sentencing were as clear then as they are today. One of them was that one imposes a sentence proportional to the offence. If the noble Lord, Lord McIntosh, cares to look in the Library, he will find a two-volume work called Encyclopaedia of Sentencing Principles, dealing, item by item, with principles and offences. If he looks at another document which I caused to be put into the Library, he will see a collection of guideline principles. He speaks as if, prior to the Criminal Justice Act 1991, there were no sensible sentencing principles, that the Court of Appeal did not exist and that judges did not know their job. With great respect, that is complete nonsense.
What is required is a little plain speaking about what is now being done. Sections 1, 2 and 29 constituted aberrations on the part of the Government of quite monumental proportions. They so startled and astonished the former Home Secretary, the right honourable Kenneth Clarke, that he thought and so alleged in the radio programme "Today" on 5th May that his predecessor had fully consulted the judiciary who had agreed with the sections which are now to be amended. He withdrew that statement when its inaccuracy was drawn to his attention. But the fact that he thought that consultation must have taken place shows, in my respectful submission to the House, his astonishment that the provisions existed.
When, seven days later, he came to make a Statement in the House, it is revealing how he put it: First, we will seek to amend section 1 of the 1991 Act so as to allow the courts to take into account all the offences for which the offender is being dealt with, instead of only one offence, or that offence and one other offence, which is the case now".—[Official Report, Commons, 13/5/93; col. 939.] The phrase, we will …allow the courts", is merely a disguised way of saying "we will restore to the courts the powers that we so foolishly took away".
Then he continued: Secondly, we propose to restore to the courts their power to have full regard to the criminal record of an offender and 1089 his response to previous sentences when deciding on the sentence for his current offence. We will do this by repealing Section 29 of the 1991 Act which prevents a court from regarding an offence as more serious by reason of any previous convictions of the offender or his failure to respond to previous sentences.
"These changes which I wish to see made to the 1991 Act will make it clear that sentencers have all reasonable discretion to decide upon the right sentence in a particular case, bearing in mind the seriousness of the offences being dealt with, all the circumstances of the offender and his offending behaviour". When he talked about the sentencers having all reasonable discretion he was referring to the discretion which they had prior to the Act and which the Act removed.
When the matter came before the House on Second Reading, as your Lordships would have expected, I, as a sitting Law Lord —that is a Lord of Appeal in Ordinary—consulted the Chief Justice before taking part in the debates. I said this: Of course it has for long been established that an offender is not to be punished twice for the same offence, and accordingly must be sentenced for the crime or crimes which brought him before the court. However, in evaluating the seriousness of that crime or crimes, with particular regard to the need to protect the public from further offences committed by him, hitherto, among other things, a history of failure to respond to non-custodial penalties or an inability or unwillingness to respond to them were understandably considered …relevant".—[Official Report, 12/3/91; col. 127.] I then leave out an unnecessary part for the purpose of this debate and at col. 128 say: Of course, Parliament is entitled to establish a framework within which judges are to operate; but if that framework is distorted, then so will be the decision of the court". That is exactly what has happened. It is the distortions which have caused public dismay and hence the amendments.
It was ironic that I was in Poland, leading a small delegation of judges, at the suit of the British Council, addressing the Polish judges on the need for judicial independence and for a proper separation of powers, when the Committee stage came on. I was accordingly unable to be present. I apologised to the House when I attended at the Report stage and moved the very amendment to Clause 1 which the Government have now been obliged to bring in.
Your Lordships may be interested to know that I lost that amendment by 29 votes to 183 votes. Among those who voted in favour of my amendment, including myself, were four Law Lords: the noble and learned Lord, Lord Wilberforce, whose wisdom has been so recently referred to; the noble and learned Lord, Lord Roskill, well known also for his wisdom in this House; and Lord Lowry, the former Chief Justice of Northern Ireland. In addition, there was in favour of the amendment: Lord Havers, a former (albeit briefly) Lord Chancellor and the longest serving Attorney-General this century. There were no judges who voted against the amendment—although perhaps that is not strictly accurate. My noble and learned friend the Lord Chancellor who, I am delighted to see, is back on the Woolsack, was one of the 183. He was, of course, a High Court judge for some years in Scotland, and I enjoyed immensely his company as a Lord of Appeal in Ordinary for some two years. That 1090 type of defeat occurred in every amendment which I produced focusing on the matters which are now before your Lordships.
How then did this aberration come about? The answer is quite simple. The Government ignored the doctrine of separation of powers. They decided to control the administration of criminal justice by obliging judges to sit in blinkers, insulated, as I respectfully pointed out in the debates, from reality; unable to focus on vital, relevant facts; unable to apply the Government's own doctrine of just deserts emphasised in the White Paper which preceded this Bill. The judges were, as a result, unable to protect the public from the persistent offender.
It may be asked: why am I stressing, or even over-stressing, this matter? The answer is quite simply that there has been a tendency in the Government to fail to recognise that judicial independence—that is, its ability to do its job without interference from the Executive—is an absolutely essential feature for the proper functioning of an effective judiciary.
It was not very long ago that this House debated Clause 25 of what was then the Judicial Pensions and Retirement Bill, now an Act. Under that clause, power was to be taken by my noble and learned friend the Lord Chancellor at his sole discretion to continue the senior judiciary in office beyond what is to be the new compulsory retirement age of 70 from year to year, up to a period of five years—described as a system of judges on contract. Over 50 years ago that concept was rejected by the Royal Commission, the appeal commission, of which Sir Claude Schuster, an outstanding Permanent Secretary in my noble and learned friend's department, was a member. In the debate on the report on 29th October, my noble and learned friend Lord Simon of Glaisdale expressed his astonishment that, this unconstitutional provision ever appeared in the Bill".—[Official Report, 29/10/92; col. 1262.] Thankfully, my noble and learned friend the Lord Chancellor had second thoughts and removed the offending clause, but not until the Third Reading.
Noble Lords may still recall the debates on the Green Papers which preceded the Courts and Legal Services Bill and the dramatic quotation which my noble and learned friend Lord Donaldson, the Master of the Rolls, made when it was considered that the judicial power in certain respects to control its courts was being usurped by the Executive. He quoted the phrase: "Get your tanks off my lawn".
I am delighted that, by the new clause, the clock is to be put back. Judges are to be returned to their power, which it is now recognised on all sides they need, to deal justly and effectively with offenders that come before them.
Once again, in case it may be thought that this emphasis on judicial independence is being overstressed, perhaps I may remind noble Lords, as I have in the past, of the following excerpt from a lecture; the F.A. Mann Lecture given in 1989 by the noble and learned Lord, Lord Hailsham, then the Lord Chancellor, on the subject: "The Office of the Lord Chancellor and the Separation of Powers." He said: But surely, it will be asked, everyone supports judicial independence? Oh, do they? Certainly not the public or the 1091 back-benchers in the House of Commons who constantly revile, frequently from inconsistent standpoints, individual judges or particular decisions, or what they imagine to be judicial policies and daily demand individual judges to be directed or rebuked (presumably by the Executive Government) to move in this direction or that, or even should be removed from office. Certainly not the Opposition, whichever party happens to he on the Speaker's left. Certainly not party conferences… And, least of all, I may assure you, individual members of the Cabinet, whose Departmental interests from time to time basically conflict not only with the views of the judiciary, where they are entitled to differ, but in the provision of the means necessary to enable the courts to discharge their functions". I end by expressing the hope that the Government may perhaps realise that nothing is to be achieved except disaster if politics are allowed to interfere with the due administration of justice.

§ Lord Gisborough
My Lords, I am delighted that the unit fines are going. They removed the ability of a magistrate to use his common sense in cases.

§ Lord McIntosh of Haringey
My Lords, perhaps the noble Lord will allow me to intervene. Unit fines were dealt with on the last amendment. We are now dealing with a quite different matter.

§ Lord Gisborough
My Lords, is it not the same thing?

§ Lord McIntosh of Haringey
No, my Lords.

§ 9.15 p.m.

Viscount Colville of Culross
My Lords, I wonder whether the noble Earl, Lord Ferrers, could give us any indication, if these amendments are put into the legislation, when they might be put into effect as a complicated commencement order clause. My recollection is that the new powers will be available to sentencers if people have been convicted but not yet sentenced at the date of a commencement order.
The last thing I wish to suggest is that anybody will go back and ignore the lessons of the 1991 Act and the enormous amount of training that went into the judiciary in the course of preparing for it. Nevertheless, the result is that a considerable number—virtually all—of the more serious cases that come before the courts now have a report prepared for them before sentence is passed and after conviction or a plea of guilty. I feel that there will have to be some warning to people when these powers are to be brought into effect. It may very well be that there will have to be some small amount of training through the Judicial Studies Board—though not so much as happened before the 1991 Act came into effect—before we fully comprehend what has to be done.
It would be very helpful if the Government could give some indication of when that change will come in so that people may be prepared for it.

§ Lord Harris of Greenwich
My Lords, I agree very strongly with the remarks of the noble Viscount. The noble Earl owes us some kind of clear answer to his question; namely, when and on what date will the new provisions come into operation?
The noble Viscount said that very substantial resources were deployed for judicial training. That 1092 being so, it is even more necessary that the judiciary should know, preferably tonight, the date of the commencement order so far as concerns this section of the Bill. I simply say to the noble and learned Lord, Lord Ackner, that he was right and we were wrong. He was wholly right. I remember the speech that he made. I was almost certainly one of the 183 Members who voted the wrong way (as he would see it) and now I certainly acknowledge my error in the matter. Undoubtedly, during the discussion I had substantial feelings of disquiet on the matter. I believe that I did go into the Lobby. It is just possible that I did not participate in the Division, though I fear that I did do so.
What concerns me is the matter to which the noble and learned Lord drew our attention; namely, consultation with the judiciary. It seems to me exceptionally difficult to move in the direction that the Government chose to move—with, it has to be said, all party support—and then be surprised when there is a public uproar so soon as that section of the Act comes into operation. Disquiet was voiced not only by the judiciary but, as the noble Earl is aware, the police too were outraged when they discovered what was about to take place. They too had not been consulted.
I do not believe that judges, the police or anybody else has a right of absolute veto on legislation. So far as this Government and any future government are concerned, it does not seem to me that it is particularly wise to try to push through legislation in the teeth of opposition of this character. When it comes into operation, public disquiet is expressed. Public attention is drawn to the fact that the judiciary and the police are wholly opposed to what is being done. In this matter, as in the last, we then have the Government announcing within a few months of the commencement order that a major part of the criminal law of this country recently put on the statute book is about to be repealed. That is no way to legislate. That cannot be emphasised too strongly.
I wish to make only two further points. First, I agree entirely with what the noble Earl said in regard to offences committed by people who are on bail. As the noble Earl is aware, I have taken a keen interest in this issue and pursued him on the matter over a period of some months because of the disquieting evidence of the growth in the number of criminals deciding to commit a series of offences while on bail in the belief that they stand a good chance of not being caught or, if they are caught, that no greater sentence will be imposed by the sentencing judge. That is not an acceptable situation and I welcome the fact that something is to be done about it.
The second matter to which I should like to refer—I gave notice to the noble Earl that I intended to raise this question—is the leak which appeared in the Guardian two or three weeks ago in relation to a letter sent by the director general of the prison service to the Home Secretary. It concerned the consequences of this legislation in relation to the size of the prison population. As I understand it, there were quotation marks in the letter; the Home Office has not denied its authenticity and therefore we can work on the assumption that it is a genuine letter. That being so, 1093 perhaps the noble Earl can tell us whether or not the Government believe that there is a real prospect that the size of the prison population will increase in the region of 5,000. The resource implications of that are considerable. It has direct implications in relation to the future prison building programme and I welcome any comments the noble Earl can make about it.
As he may be aware, there is a suggestion that the Government may have to introduce prison ships to hold some of the people who will be swelling the numbers of those in custody. He will be aware also that a question was raised in Mr. Lewis's letter to the Home Secretary as to whether it would be lawful to hold them in such circumstances. It would be extremely helpful if the noble Earl could comment on those questions. But I come back to my original point; namely, that the noble and learned Lord, Lord Ackner, is entirely justified in what he said and we owe him an apology.

§ Lord Marlesford
My Lords, I rise with great diffidence as an outsider to intervene briefly in this debate. However, this issue has aroused interest among a great many outsiders.
I listened with great interest to what the noble and learned Lord, Lord Ackner, said. I agree with him on the point in regard to the judiciary. But the amendment illustrates the need for an important skill which all Ministers should possess—I say that on the basis of having observed Ministers over some years —the skill of knowing when to accept the advice of officials and when to ignore it, and when to take the view of the public and when to ignore it. The history of this amendment is that Ministers took the advice of officials, given in a very pernicious form in the sense that they were trying, as I understand it, to achieve a different objective from the objective which was actually put forward for the original proposal. My right honourable friend the present Chancellor of the Exchequer has, I believe, behaved extremely sensibly in taking the advice of the public by seeking to make this change.

§ Lord Harris of Greenwich
My Lords, is the noble Lord aware that what he has said just happens to be wholly untrue? These proposals were pushed through by Mr. John Patten, then Minister of State at the Home Office. There is no question of this having been some form of secret agenda by Home Office officials. Many of us paid tribute to Mr. Patten personally when we discussed the 1991 Act. I hope that the noble Lord will not believe in this conspiracy theory of officials. It does not happen to be true.

§ Lord Wigoder
My Lords, perhaps I may make one brief comment. It is not necessary for us to decide this evening whether or not the 1991 legislation was an improper interference with judicial independence. Perhaps the real issue is whether it was a totally mistaken fetter upon judicial discretion, which is not perhaps quite the same matter. It is perfectly clear now, as the noble and learned Lord, Lord Ackner, has demonstrated beyond peradventure, that the exercise by the judges of their discretion on sentence before the 1991 Act was a great deal more satisfactory than the 1094 restrictions which were imposed by that Act. Obviously, all sentencing legislation to some extent impairs the discretion of judges on sentencing. That is quite inevitable. The only question is: were those restrictions wrong? I venture to suggest that experience has shown that they were manifestly wrong and that the sooner they are repealed the better.

§ Baroness Macleod of Borve
My Lords, this amendment is one of the most important of all the amendments with which we are dealing today. It will have far-reaching consequences. On behalf of the magistracy, I am very grateful that this has come about. It is vitally important.

Earl Ferrers
My Lords, I think that the noble and learned Lord, Lord Ackner, approved of the Government's amendments, although I am bound to say that his effusion of congratulations was rather limited in its forthcoming. But I assume from what he said that on the whole he was glad that these alterations had been made.
The noble Lord, Lord Wigoder, said that the real question was whether the previous Act of 1991 was a fetter on judicial discretion. I do not think that it is appropriate necessarily to go into the details of whether or not this was a fettering. The fact is that those changes were made in 1991 for very good and for what appeared to be very sensible reasons. Even the noble Lord, Lord Harris of Greenwich, admitted that he had voted for them. If he has any anguish about that, let me tell him that when he is good enough to accompany me into the Division Lobby, he need not have any fear or any humility about it. I am only too glad to see that his views are running in the right direction. The fact is that, periodically, one has to change one's mind. Periodically, whatever the reasons were, one discovers that the practice has not worked as effectively as was expected. That is why we have introduced these amendments.
The noble Lord, Lord Harris, said that this was no way to legislate. I quite agree with him that, as a matter of principle, one would not wish to alter these provisions as quickly as that. However, it was necessary to do so. The noble Lord also referred to the leak, as he put it, and to the Guardian of 19th July. We have estimated that the total effect of all the changes we are making, including provisions relating to offending on bail and causing death by dangerous driving under the influence of drugs or alcohol, may be in the region of 5,000. Our amendments to Sections 1 and 29 of the Criminal Justice Act 1991 essentially return the discretion to the courts. It is extremely difficult to predict something that depends on judicial behaviour, as I am sure the noble and learned Lord, Lord Ackner, will be the first to understand.
Contingency plans are being made by the prison service to cope with any surge in the prison population. They include identifying the sites for new cell blocks in existing prisons, identifying prison service sites where temporary, secure buildings can be placed and examining the use of floating accommodation units.
The noble Lord, Lord McIntosh, moved some amendments and perhaps I may briefly refer to them 1095 because they are what we are discussing. The effect of Amendment No. 144A is that the court is allowed to have regard to the overall seriousness of all the associated offences in the way that the wording suggests. But we believe that our wording is more precise than that.
The intention behind Amendment No. 144B is to try to limit the extent to which previous convictions can be taken into account so that mere repetition does not lead to disproportionate sentences for minor offences. I do not believe that it is practically possible or desirable to return to the courts the power to have regard to previous convictions, but to do so only within certain limitations. That was, after all, precisely what Section 29 tried to do in the first place. That amendment attempts in effect to draw a distinction between the effect on the seriousness of an offence which is caused solely by the element of repetition disclosed by previous convictions and the aggravation of seriousness which can be the result of substantive features of previous offending such as the selection of ethnic minority victims.
I am not sure that a distinction between mere repetition and aggravating factors disclosed by previous convictions can be realistically drawn. Many sentencers would wish in principle to be able to take the view that repeated offending can indeed make the current offence more serious, and does not merely deprive the offender of mitigation; many of the public, particularly those who have suffered from multiple offending, would agree.
The "progressive loss of mitigation" principle sits very uneasily with a "just deserts" sentencing framework. It operates on the basis that there is a maximum appropriate sentence for any offence, in the absence of any mitigation. The offender starts off with a certain amount of mitigation "in the bank" as it were, because he has never offended before. As an offender repeats the offence, he progresses upwards towards the maximum sentence. I believe that these are all matters for the judge, using his experience and common sense. The simple language of our amendment will allow that to happen.
Amendment No. 144C would have the effect of obliging sentencers to state in open court which previous convictions they have taken into account in reaching a decision and why they have done so. In our view any such requirement would, for no significant benefit, place an unnecessary burden on sentencers. The Criminal Justice Act 1991 already obliges sentencers to state in open court, and in ordinary language, why a custodial sentence is being passed. It is also very often the case that sentencers will choose to make clear the reasons for their decisions. This is especially so if there are factors which have aggravated an offence. We believe that it is right for courts to remain free to make the kind of statement envisaged by the noble Lord's amendment but that it would be wrong to oblige them to do so.
The Government's amendment on bail to which the noble Lord, Lord Harris, referred, requires the courts to take a step up in the level of seriousness with which they view offences committed while on bail. 1096 Amendment No. 144D takes us back to where we started. The courts already have discretion under common law to take into account offending on bail when considering sentence.
The Government do not intend that an offence committed on bail will always lead to a longer sentence. That would be absurd where the two offences were totally unconnected, or the second offence a trivial one. The measure is aimed at the career burglar who regards bail with indifference, and is caught and convicted again. If, in the court's opinion, the fact of offending on bail does not make the offence so serious that it deserves a jump to the next level of sentence, there is nothing in the provisions of the Criminal Justice Act 1991 to prevent such a conclusion being reached.
My noble friend Lord Colville and the noble Lord, Lord Harris, asked when these new powers would come into effect. We are considering the date when that should happen in the same way as we are as regards unit fines. I can only tell them as shortly as I can that they will come in as quickly as possible.

§ 9.30 p.m.

§ Lord McIntosh of Haringey
My Lords, I am grateful for that detailed and, on the whole, helpful response to what, after all, were amendments not seeking to turn back the thrust of the Government's amendments but to point out one or two defects in them. I am also grateful to the noble and learned Lord, Lord Ackner, for his well-researched speech which was particularly valuable to those of us who cannot read Hansard. I do, however, think that he is slightly unjust to accuse me of thinking that there was no consistency in sentencing policy before 1991. I feel some sympathy with the Minister. His response to the noble and learned Lord reminded me of the following: Perhaps it was right to dissemble your love,
But why did you kick me downstairs? It was not necessary to be quite so forthright. Perhaps that is the best way of putting it.
As I have said, these amendments attempted to point out some of the potential defects in the final drafting of the Government's amendments, the thrust of which we agree with. I do not intend to pursue them and I beg leave to withdraw Amendment No. 144A.

§ Amendment No. 144A, as an amendment to Commons Amendment No. 144, by leave, withdrawn.

§ [Amendments Nos. 144B to 144D not moved.]

§ On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 145 Before Clause 42, insert the following clause:

§ Penalty for causing death by dangerous driving or by careless driving

§ '.—(1) In Part I of Schedule 2 to the Road Traffic Offenders Act 1988 (prosecution and punishment of offences), in the entries relating to section 1 of the Road Traffic Act 1988 (causing death by dangerous driving) and section 3A of that Act (causing death by careless driving while under influence of drink or drugs), in column 4, for "5 years" there shall be substituted "10 years".

§ (2) In section 53(2) of the Children and Young Persons Act 1933 (punishment of certain serious crimes), the following shall be inserted after the word "law" in paragraph (a)—

1097

§ "(aa) a young person is convicted of—

(i) an offence under section 1 of the Road Traffic Act 1988 (causing death by dangerous driving); or
(ii) an offence under section 3A of that Act (causing death by careless driving while under influence of drink or drugs);".'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 145.
This amendment increases the penalties for those who are found guilty of causing death by dangerous driving or by careless driving while under the influence of drink or drugs. At the moment, the maximum penalty for both offences is five years' imprisonment. We wish to double that maximum.
The amendment also amends subsection (2) of Section 53 of the Children and Young Persons Act 1933 so that 14 to 17 year-olds can be sentenced to custodial sentences of up to the maximum which is available for adult offenders. Without such an amendment, 14 year-old offenders would not be liable to a custodial penalty at all; and courts would only be able to sentence 15 to 17 year-olds to 12-month custodial sentences. We do not anticipate that the courts will often be called upon to use this power, hut we think that it is right that they should have the discretion to do so in appropriate circumstances.
Moved, That the House do agree with the Commons in their Amendment No. 145.—(Earl Ferrers.)

§ Lord Monson
My Lords, I certainly agree that causing death by dangerous driving or by driving carelessly while under the influence of drink or drugs is a serious crime. The noble Earl, Lord Caithness, will remember my concern to ensure that the minimum period of disqualification for this crime was raised from 12 months to two years. Having said that, I cannot help feeling slightly uneasy at the tendency of this Government to increase maximum sentences sharply as a result of popular pressure.
I should like to ask the Minister three questions. First, have there been any cases in which the current maximum of five years has been imposed? Secondly, has the judiciary at any time complained about the inadequacy of the present maximum sentence? Thirdly, in particularly heinous examples of this crime, why are the accused not charged instead with manslaughter as an alternative to raising the maximum penalty from five to 10 years' imprisonment?
I remember well discussing these matters 40-odd years ago with my father who was a barrister by training. It was common practice to charge people who caused death in this way with manslaughter and there never seemed to be any difficulty in obtaining a conviction. It must be said, however, that the sentences that were imposed were relatively light by present-day standards. Such crimes were not regarded as seriously as we would regard them today. I remember one such case which took place about four miles from where we lived. In the middle of the day, an extremely drunken driver crashed into a bus queue, killing two people and injuring several more. He was 1098 convicted of manslaughter and duly sentenced to two years' imprisonment which was considered about right then. That was the way that people thought in those days.
It is a paradox—is it not?—that if somebody drives a speedboat, train or aeroplane dangerously or while under the influence of drink or drugs and kills somebody, that person is charged with manslaughter, but people who drive cars, lorries or motorcycles are treated differently. It seems odd. I wonder whether any thought was given to keeping open the manslaughter option instead of raising the maximum sentence from five to 10 years—the option must he open—for the serious cases. The Minister said that there were only a few cases in which anyone would want to impose a sentence of more than five years. As that option is still currently open, why is not that course taken instead of deciding to double the maximum?

§ Lord Harris of Greenwich
My Lords, one of the problems with bringing a charge of manslaughter is that the maximum sentence is life imprisonment. It would defeat the purpose of what the noble Lord is suggesting.

§ Lord Ackner
My Lords, perhaps I may add one or two comments. My understanding is that the statutory offence of causing death by dangerous driving was introduced for the very reason that the juries would not convict in manslaughter cases. Cars and motorcycles are, from a practical point of view, in a different category because of the old approach, "There, but for the grace of God, go I". That does not apply so much to speedboats, aeroplanes and things of that kind. As I understand it, that was the reason for the introduction of a statutory offence.
I do not believe the judges—I may he a little out of touch—have asked for any greater powers to sentence. My recollection is that, not very long ago—perhaps five or six years—there was a general criticism of the judges for under-sentencing. There are guidelines on sentencing in these cases, drawing attention to the fact that imprisonment must, in nearly every case, be imposed. I do not believe that there has been any clamour by the judiciary for greater powers.
One of the essential problems in this type of case is that the person never intended the ghastly consequences of what he did, and either he was reckless and gave no thought, or no proper thought, or, if he was drunk, it follows that he very probably did not recognise the danger of what he was doing. To an extent, one is sentencing on results—namely, the death—and not on the mental element which is usually intent. But I expect that the Minister knows more about it than I do.

§ Lord Monson
My Lords, before my noble and learned friend sits down, does he agree that the driver of a water-ski boat which runs over someone and kills them does not mean to do what he did, nor does an anaesthetist who gives too much anaesthetic, too little oxygen, or whatever it might be? The same applies there.

1099

§ Lord Ackner
My Lords, I agree entirely. I should be very surprised if a manslaughter conviction would be achieved.

Earl Ferrers
My Lords, I am grateful to the noble and learned Lord, Lord Ackner, for explaining so clearly to the noble Lord, Lord Monson, and others of your Lordships what is the position. I can only tell the noble Lord, Lord Monson, that it is up to the CPS and the police to decide whether a charge of manslaughter should be brought. That is entirely a matter for them. If the circumstances fit, they can do so. He asked why it was necessary to introduce this provision. The answer is that causing death by dangerous driving or by careless driving while under the influence of drink or drugs are appalling things to do. It was a manifesto commitment that we would strengthen the law. That is why we are doing so.

§ Lord Wigoder
My Lords, are there many recent instances of the maximum sentence having been passed?

Earl Ferrers
My Lords, I do not have the figures. I cannot tell the noble Lord.
On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 146 Before Clause 42, insert the following clause:

§ Appeals in Scotland against lenient disposals. etc

§ '.—(1) In section 228(1) of the Criminal Procedure (Scotland) Act 1975 (right of appeal of person convicted on indictment)—

§ (a) after paragraph (b) (and before the word "or") insert—

§ "(bb) against his absolute discharge or admonition;

§ (bc) against any probation order or any community service order under the Community Service by Offenders (Scotland) Act 1978;

§ (bd) against any order deferring sentence;"; and

§ (b) in paragraph (c), after "sentence" add "or disposal or order".

§ (2) In section 228A of that Act (appeal by Lord Advocate against sentence in solemn proceedings etc.)—

§ (a) after "conviction" insert "or against any probation order or any community service order under the Community Service by Offenders (Scotland) Act 1978 or against the person's absolute discharge or admonition or against any order deferring sentence"; and

§ (b) for paragraph (a) substitute—

§ "(a) if it appears to the Lord Advocate that, as the case may be—

(i) the sentence is unduly lenient;
(ii) the making of the probation order or community service order is unduly lenient or its terms are unduly lenient;
(iii) to dismiss with an admonition or to discharge absolutely is unduly lenient; or
(iv) the deferment of sentence is inappropriate or on unduly lenient conditions;".

§ (3) In section 442(1) of that Act (rights of appeal in summary proceedings)—

§ (a) in paragraph (a)—

§ (i) after "person convicted" insert ", or found to have committed an offence,";

§ (ii) in sub-paragraph (i), after "conviction" insert "or finding";

§ (iii) after sub-paragraph (ii) (and before the word "or") insert—

1100

§ "(iia) against his absolute discharge or admonition or any probation order or any community service order under the Community Service by Offenders (Scotland) Act 1978 or any order deferring sentence;"; and

§ (iv) in sub-paragraph (iii), after "sentence" add "or disposal or order"; and

§ (b) in paragraph (c)—

§ (i) after "conviction" insert "or, whether the person has been convicted or not, against any probation order or any community service order under the Community Service by Offenders (Scotland) Act 1978 or against the person's absolute discharge or admonition or against any order deferring sentence";

§ (ii) for "the sentence is unduly lenient" substitute—

§ ",as the case may be—

(i) the sentence is unduly lenient;
(ii) the making of the probation order or community service order is unduly lenient or its terms are unduly lenient;
(iii) to dismiss with an admonition or to discharge absolutely is unduly lenient; or
(iv) the deferment of sentence is inappropriate or on unduly lenient conditions;".'.

§ 147 Before Clause 42, insert the following clause:

§ Supervised release of certain young offenders in Scotland

§ '. In section 212A of the Criminal Procedure (Scotland) Act 1975 (which makes provision for the supervised release of short-term prisoners in Scotland) at the end add—

§ "(7) The foregoing provisions of this section apply to a person sentenced under section 207 or 415 of this Act as the provisions apply to a person sentenced to a period of imprisonment.".'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 146 and 147.
Perhaps I may speak also to Amendments Nos. 152 and 153. The purpose of the new clauses is to clarify certain provisions which are made in the Prisoners and Criminal Proceedings (Scotland) Act 1993 and which reflect provisions in the Criminal Procedure (Scotland) Act 1975. I beg to move.
Moved, That the House do agree with the Commons in their Amendments Nos. 146 and 147. —(Earl Ferrers.)
On Question, Motion agreed to.

§ 9.45 p.m.

§ COMMONS AMENDMENTS

§ 148 Clause 42, page 37, line 24. after '42.-' insert:

§ '(1) Paragraphs 8(3), 9(2) and 10(3) of Schedule 8 to the Banking Coordination (Second Council Directive) Regulations 1992 shall cease to have effect.'

§ 149 Page 37, line 31, after 'Articles' insert '3,'.

§ 150 Page 37, line 32, after 'to' insert 'the consolidated supervision of'.

§ 151 Page 37, line 45, at end insert:

§ '(3) Subsection (1) shall not affect the punishment for an offence committed before that subsection comes into force.'.

The Earl of Caithness
My Lords, I beg to move that the House do agree with the Commons in their clarificatory Amendments Nos. 148 to 151 en bloc.
1101 Moved, That the House do agree with the Commons in their Amendments Nos. 148 to 151 en bloc.—(The Earl of Caithness.)
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 152 After Clause 46, insert the following clause:

§ Compassionate release of certain children and other persons in Scotland

§ '.—(1) In section 7(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (which applies provisions of that Act to certain children), for "Sections", where it first occurs, substitute "Without prejudice to section 6(1) (b) (ii) of this Act, sections 3,".

§ (2) In paragraph 2(2) of Schedule 6 to that Act (which makes transitional provision as respects release on licence on compassionate grounds) after "Act" insert ", and sections 12 and 17 of this Act in so far as relating to a licence granted, or person released, by virtue of this sub-paragraph,".'.

§ 153 After Clause 46, insert the following clause:

§ Life prisoners transferred to Scotland

§ '.—(1) The Prisoners and Criminal Proceedings (Scotland) Act 1993 shall be amended as follows.

§ (2) In section 10 (life prisoners transferred to Scotland)—

(a) in subsection (1), the words "(whether before or after the commencement of this section)" shall cease to have effect;
(b) in subsection (2), after "life prisoner" insert ", except such case as is mentioned in paragraph 7 of Schedule 6 to this Act,"; and
(c) in subsection (4)—
1. (i) in paragraph (a), after "has" insert "(whether before or after the commencement of this section)"; and
2. (ii) in paragraph (b), after "Scotland" insert "(whether before or after that commencement)".

§ (3) In Schedule 6 (transitional provisions and savings)—

(a) in paragraph 1, in the definition of "existing life prisoner", after "person" insert "(other than a transferred life prisoner)";
(b) in paragraph 2(1), for "paragraph 7 below" substitute "to section 10(4) of this Act"; and
(c) for paragraph 7 substitute—

§ "7. In the case of a transferred life prisoner who is a discretionary life prisoner for the purposes of Part II of the Criminal Justice Act 1991 by virtue of section 48 of or paragraph 9 of Schedule 12 to that Act, subsection (3) of section 10 of this Act applies and the certificate mentioned in paragraph (b) of that subsection is the certificate under the said section 48 or paragraph 9.".'

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 152 and 153. They were spoken to with Amendment No. 146.
Moved, That the House do agree with the Commons in their Amendments Nos. 152 and 153. —(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 154 After Clause 46, insert the following clause:

§ Power to extend certain offences to Croon servants and to exempt regulators etc

§ '. Schedule (Extensions and exemptions), which confers power on the Secretary of State to make regulations extending certain provisions to Crown servants and to make regulations exempting persons from certain offences, shall have effect.'.

1102

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 154. I shall speak also to Amendment No. 181. Amendment No. 154 inserts a new clause into Part V of the Bill. This gives effect to the new schedule which was inserted by Amendment No. 181.
Moved, That the House do agree with the Commons in their Amendment No. 154.—(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 155 Clause 47, page 42, line 43, leave out 'Section 48(9)' and insert 'Sections (Appeals in Scotland against lenient disposals, etc.), (Supervised release of certain young offenders in Scotland), (Compassionate release of certain children and other persons in Scotland), (Life prisoners transferred to Scotland) and 48(l) to (9), paragraph (Criminal Procedure (Scotland) Act 1975) of Schedule 3 and, in so far as relating to the Criminal Procedure (Scotland) Act 1975 and the Prisoners and Criminal Proceedings (Scotland) Act 1993, Schedule 4'.

§ 156 Page 43, line 9, leave out from 'Part II' to 'that', in line 10, and insert 'Part III, or (as the case may be) Part IIIA.

§ 157 Page 43, line 12, at end insert:

§ '() Section 4A(3) and (4) of the Drug Trafficking Offences Act 1986 (inserted by section 14) shall not apply to any proceedings—

(a) for an offence committed before the commencement of section 14; or
(b) for one or more offences, any one of which was so committed.'.

§ 158 Page 43. line 12, at end insert:

§ '() Section 52B(3) and (4) of the Northern Ireland (Emergency Provisions) Act 1991 (inserted by section (Defendant who has died or absconded)) shall not apply to any proceedings—

(a) for an offence committed before the commencement of section (Defendant who has died or absconded); or
(b) for one or more offences, any one of which was so committed.'.

§ 159 Page 43. line 14, leave out from 'Part II' to 'other' and insert 'Part III or Part IIIA.

§ 160 Page 43, line 17, at end insert:

§ '(9) For the purposes of section 27 of the Prevention of Terrorism (Temporary Provisions) Act 1989 (temporary provisions), any amendment made in that Act by a provision of Part IIIA of, or paragraph 8A of Schedule 3 to, this Act shall be treated, as from the time when that provision comes into force, as having been continued in force by the order under subsection (6) of that section which has effect at that time.

§ (10) For the purposes of section 69 of the Northern Ireland (Emergency Provisions) Act 1991 (temporary provisions), any amendment made in that Act by a provision of Part IIIA of, or paragraph 9A(1), (2), (5), (6) and (7) of Schedule 3 to, this Act (other than sections (Compensation) and (Enforcement)) shall be treated, as from the time when that provision comes into force, as having been continued in force by the order under section 69(3) of the Act of 1991 which has effect at that time.'.

§ 161 Clause 48, page 43, line 22, leave out '21(2) (so far as it amends the first section referred to)' and insert 'and (3) (h)'.

1103

§ 162 Page 43, line 23, after '22' insert '(Appeal against order forfeiting drug trafficking cash), (Enforcement), (Enforcement of orders outside Northern Ireland), (Offences relating to proceeds of terrorist-related activities), (Failure to disclose knowledge or suspicion relating to proceeds of terrorist-related activities), (Financial assistance for terrorism), (Investigation of terrorist activities), (Failure to disclose knowledge or suspicion of financial assistance for terrorism)'.

§ 163 Page 43, line 23, after '44,' insert '(Power to extend certain offences to Crown servants and to exempt regulators etc.),'.

§ 164 Page 43, line 24, leave out '1 and 2' and insert '(Special defences) and 1'.

§ 165 Page 43, line 24, at end insert:

§ 'paragraphs 4, 5 and 6 of Schedule (Extensions and exemptions).'.

§ 166 Page 43, line 25, leave out from beginning to end of line 29 and insert:

§ '(3) The following provisions of this Act extend only to Great Britain—

§ sections 13(9) to (I 1), 21(3) (e), 23(2), (3) and (7) to (10), 26 to 29, (Enforcement of Northern Ireland orders: proceeds of criminal conduct) (1), (Prosecution by order of the Commissioners of Customs and Excise), (Penalty for causing death by dangerous driving or by careless driving) (1) and 45; and paragraph 3 of Schedule (Extensions and exemptions).

§ (4) The following provisions of this Act extend only to Scotland—

§ sections 17, 19, 20(2), 21(3) (c) and (d), (Enforcement of Northern Ireland orders: drug trafficking) (2), 23(12) to (15), (Disclosure of information etc. received in privileged circumstances) (2), 30, (Appeals in Scotland against lenient disposals, etc.), (Supervised release of certain young offenders in Scotland), (Compassionate release of certain children and other persons in Scotland), and (Life prisoners transferred to Scotland), and

§ paragraph 2 of Schedule (Extensions and exemptions).'.

§ 167 Page 43, line 29, at end insert:

§ '() Sections (Confiscation orders), (Revised assessments), (Statements, etc. relevant to making confiscation orders), (Provision of information), (Variation of confiscation orders), (Availability of certain powers and satisfaction of orders), (Defendant who has died or absconded), (Compensation) and (Realisable property) extend only to Northern Ireland.'.

§ 168 Page 43, line 29, at end insert:

§ '() Sections 21(3) (f) and (Enforcement of Northern Ireland orders: proceeds of criminal conduct) (2) extend to Scotland and Northern Ireland only.'.

§ 169 Page 43, line 30 at end insert:

§ '() The provisions of Schedules 3 and 4 have the same extent as the provisions on which they operate.'.

§ 170 Page 44, line 6, leave out subsection (I11) and insert:

§ '(11) The repeals and revocations set out in Schedule 4 (which include the repeal of two enactments which are spent) shall have effect.'.

§ 171 Page 44, line 7, leave out subsection (12).

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 155 to 171 en bloc. These amendments are technical amendments which change the commencement and extent provisions of the Bill. They are required mainly as a result of changes made elsewhere in the Bill.
1104 Moved, That the House do agree with the Commons in their Amendments Nos. 155 to 171 en bloc.—(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 172 Before Schedule I, insert the following schedule:

§ 'SCHEDULE

§ Special defences

§ Market makers

§ 1.—(1) An individual is not guilty of insider dealing by virtue of dealing in securities or encouraging another person to deal if he shows that he acted in good faith in the course of—

(a) his business as a market maker, or
(b) his employment in the business of a market maker.

§ (2) A market maker is a person who—

(a) holds himself out at all normal times in compliance with the rules of a regulated market or an approved organisation as willing to acquire or dispose of securities; and
(b) is recognised as doing so under those rules.

§ (3) In this paragraph "approved organisation" means an international securities self-regulating organisation approved under paragraph 25B of Schedule 1 to the Financial Services Act 1986.

§ Market information

§ 2.—(1) An individual is not guilty of insider dealing by virtue of dealing in securities or encouraging another person to deal if he shows that—

(a) the information which he had as an insider was market information; and
(b) it was reasonable for an individual in his position to have acted as he did despite having that information as an insider at the time.

§ (2) In determining whether it is reasonable for an individual to do any act despite having market information at the time, there shall, in particular, be taken into account—

(a) the content of the information;
(b) the circumstances in which he first had the information and in what capacity; and
(c) the capacity in which he now acts.

§ 3. An individual is not guilty of insider dealing by virtue of dealing in securities or encouraging another person to deal if he shows—

(a) that he acted—
1. (i) in connection with an acquisition or disposal which was under consideration or the subject of negotiation, or in the course of a series of such acquisitions or disposals; and
2. (ii) with a view to facilitating the accomplishment of the acquisition or disposal or the series of acquisitions or disposals; and
(b) that the information which he had as an insider was market information arising directly out of his involvement in the acquisition or disposal or series of acquisitions or disposals.

§ 4. For the purposes of paragraphs 2 and 3 market information is information consisting of one or more of the following facts—

(a) that securities of a particular kind have been or are to be acquired or disposed of, or that their acquisition or disposal is under consideration or the subject of negotiation;
(b) that securities of a particular kind have not been or are not to be acquired or disposed of;
(c) the number of securities acquired or disposed of or to be acquired or disposed of or whose acquisition or disposal is under consideration or the subject of negotiation;
(d) the price (or range of prices) at which securities have been or are to be acquired or disposed of or the price (or range of prices) at which securities whose acquisition or disposal is under consideration or the subject of negotiation may be acquired or disposed of;
(e) the identity of the persons involved or likely to be involved in any capacity in an acquisition or disposal.

§ Price stabilisation

§ 5.—(1) An individual is not guilty of insider dealing by virtue of dealing in securities or encouraging another person to deal if he shows that he acted in conformity with the price stabilisation rules.

§ (2) In this paragraph "the price stabilisation rules" means rules which—

(a) are made under section 48 of the Financial Services Act 1986 (conduct of business rules); and
(b) make provision of a description mentioned in paragraph (i) of subsection (2) of that section (price stabilisation rules).'

§ 173 Schedule 1, page 45, line 24, leave out 'thing' and insert 'security'.

§ 174 Page 45, line 27, leave out 'at a future date of any relevant securities' and insert 'of relevant securities under which delivery is to he made at a future date and'.

§ 175 Page 45, line 29, after '(1)' insert '—

(a) the references to a future date and to a price agreed when the contract is made include references to a date and a price determined in accordance with terms of the contract; and
(b)'.

§ 176 Page 45, line 29, leave out 'thing' and insert 'security'.

§ 177 Page 45, line 32, leave out from first 'contract' to end of line 39 and insert 'which does not provide for the delivery of securities but whose purpose or pretended purpose is to secure a profit or avoid a loss by reference to fluctuations in—

(a) a share index or other similar factor connected with relevant securities;
(b) the price of particular relevant securities; or
(c) the interest rate offered on money placed on deposit.'

§ 178 Page 46, line 1, leave out 'thing' and insert 'security'.

§ 179 Schedule 2, page 46, line 3, leave Out Schedule 2.

The Earl of Caithness
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 172 to 179 en bloc.
Moved, That the House do agree with the Commons in their Amendments Nos. 172 to 179 en bloc.—(The Earl of Caithness.)
On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 180 Before Schedule 3, insert the following schedule:

§ 'SCHEDULE

§ Financial penalties

§ Increases in certain maximum fines

§ 1.—(1) In section 17 of the Criminal Justice Act 1991 (increases in certain maximum fines), subsection (3) (e) shall cease to have effect.

§ (2) In Schedule 4 to that Act (increase of certain maxima) Part V shall cease to have effect.

§ Statements as to offenders' financial circumstances

§ 2.—(1) In section 20 of the Act of 1991 (statements as to offenders' means) the following shall be substituted for subsection (1)—

§ "(1) Where a person has been convicted of an offence, the court may, before sentencing him, make a financial circumstances order with respect to him.

1106

§ (1A) Where a magistrates' court has been notified in accordance with section 12(2) of the Magistrates' Courts Act 1980 that a person desires to plead guilty without appearing before the court, the court may make a financial circumstances order with respect to him.

§ (1B) Before exercising its powers under section 55 of the Children and Young Persons Act 1933 against the parent or guardian of any person who has been convicted of an offence, the court may make a financial circumstances order with respect to the parent or (as the case may be) guardian.

§ (1C) In this section "a financial circumstances order" means, in relation to any person, an order requiring him to give to the court, within such period as may be specified in the order, such a statement of his financial circumstances as the court may require.".

§ (2) In subsections (2) and (3) of section 20 of the Act of 1991, for the words "an order under subsection (1) above" there shall be substituted "a financial circumstances order".

§ (3) Section 20(5) of the Act of 1991 shall cease to have effect.

§ Remission of fines

§ 3. The following section shall be substituted for section 21 of the Act of 1991 (remission of fines)—

§ "Remission of fines.

§ 21.—(1) This section applies where a court has, in fixing the amount of a fine, determined the offender's financial circumstances under section 18(3) above.

§ (2) If, on subsequently inquiring into the offender's financial circumstances, the court is satisfied that had it had the results of that inquiry when sentencing the offender it would—

(a) have fixed a smaller amount; or
(b) not have fined him,

it may remit the whole or any part of the fine.

§ (3) Where under this section the court remits the whole or part of a fine after a term of imprisonment has been fixed under section 82(5) of the Magistrates' Courts Act 1980 (issue of warrant of commitment for default) or section 31 of the Powers of Criminal Courts Act 1973 (powers of Crown Court in relation to fines), it shall reduce the term by the corresponding proportion.

§ (4) In calculating any reduction required by subsection (3) above, any fraction of a day shall he ignored.".

§ Default in paying unit fines

§ 4. Section 22 of the Act of 1991 (default in paying fines fixed under section 18 of that Act) shall cease to have effect.

§ Responsibility of parents and guardians

§ 5. In section 57 of the Act of 1991 (responsibility of parent or guardian for financial penalties), the following shall be substituted for subsections (3) and (4)—

§ "(3) For the purposes of any order under that section made against the parent or guardian of a child or young person—

(a) sections 18 and 21 above; and
(b) section 35(4) (a) of the 1973 Act (fixing amount of compensation order),

shall have effect (so far as applicable) as if any reference to the financial circumstances of the offender, or (as the case may be) to the means of the person against whom the compensation order is made, were a reference to the financial circumstances of the parent or guardian.

§ (4) For the purposes of any such order made against a local authority (as defined for the purposes of the Children Act 1989)—

(a) section 18(1) above, and section 35(4) (a) of the 1973 Act, shall not apply; and
(b) section 18(3) above shall apply as if the words from "including" to the end were omitted.".

1107

§ Other amendments

§ 6.—(1) In section 15 of the Children and Young Persons Act 1969 (variation and discharge of supervision orders), the following subsection shall be substituted for subsection (7)—

§ "(7) A fine imposed under subsection (3) or (4) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.".

§ (2) In section 27 of the Powers of Criminal Courts Act 1973 (breach of requirement of suspended sentence supervision order), the following subsection shall be substituted for subsection (4)—

§ "(4) A fine imposed under subsection (3) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.".

§ (3) In section 97 of the Magistrates' Courts Act 1980 (maximum fine for refusal to give evidence), the following subsection shall be substituted for subsection (5)—

§ "(5) A fine imposed under subsection (4) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.".

§ (4) In section 12 of the Contempt of Court Act 1981 (maximum fine for contempt in face of magistrates' court), the following subsection shall be substituted for subsection (2A)—

§ "(2A) A fine imposed under subsection (2) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.".

§ (5) In section 14 of that Act (maximum fine for contempt in an inferior court), the following subsection shall be substituted for the subsection (2A) inserted by the Criminal Justice Act 1991—

§ "(2A) A fine imposed under subsection (2) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.".

§ (6) In section 58 of the Criminal Justice Act 1991 (binding over of parent or guardian), the following subsection shall he substituted for subsection (4)—

§ "(4) A fine imposed under subsection (2) (b) above shall be deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.".

§ (7) In paragraph 6 of Schedule 2 to the Criminal Justice Act 1991 (miscellaneous supplemental provisions), the following sub-paragraph shall be substituted for sub-paragraph (2)—

§ "(2) A fine imposed under paragraph 3(1) (a) or 4(1) (a) above shall he deemed, for the purposes of any enactment, to be a sum adjudged to be paid by a conviction.".'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 180. This was taken with Amendment No. 143.
Moved, That the House do agree with the Commons in their Amendment No. 180.—(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENT

§ 181 Before Schedule 3, insert the following schedule:

§ 'Schedule

§ Extensions and Exemptions

§ The Drug Trafficking Offences Act 1986 (c.32)

§ 1. The following section shall be inserted in the Drug Trafficking Offences Act 1986, after section 36A—

1108

§ "Extension of certain offences to Crown servants and exemptions for regulators etc.

§ 36B.—(1) The Secretary of State may by regulations provide that, in such circumstances as may be prescribed, sections 23A, 24, 2613, 26C and 31 of this Act shall apply to such persons in the public service of the Crown, or such categories of person in that service, as may be prescribed.

§ (2) Section 26B of this Act shall not apply to—

(a) any person designated by regulations made by the Secretary of State for the purpose of this paragraph; or
(b) in such circumstances as may be prescribed, any person who falls within such category of person as may be prescribed for the purpose of this paragraph.

§ (3) The Secretary of State may designate, for the purpose of paragraph (a) of subsection (2) above, any person appearing to him to be performing regulatory, supervisory, investigative or registration functions.

§ (4) The categories of person prescribed by the Secretary of State, for the purpose of paragraph (b) of subsection (2) above, shall be such categories of person connected with the performance by any designated person of regulatory, supervisory, investigative or registration functions as he considers it appropriate to prescribe.

§ (5) In this section—

§ "the Crown" includes the Crown in right of Her Majesty's Government in Northern Ireland; and

§ "prescribed" means prescribed by regulations made by the Secretary of State.

§ (6) The power to make regulations under this section shall be exercisable by statutory instrument.

§ (7) Any such instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament.".

§ The Criminal Justice (Scotland) Act 1987 (c.41)

§ 2. The same section as is inserted in the Act of 1986 by paragraph 1 shall he inserted in the Criminal Justice (Scotland) Act 1987, after section 46, as section 46A, but with the substitution—

(a) in subsection (1), of "sections 42 to 43B of this Act" for "sections 23A, 24, 26B, 26C and 31 of this Act"; and
(b) in subsection (2), of "43A" for "26B".'

§ The Criminal Justice Act 1988 (c.33)

§ 3. The same section as is inserted in the Act of 1986 by paragraph 1 shall be inserted in the Criminal Justice Act 1988, after section 93F, as section 93G, but with—

(a) the substitution in subsection (1), of "sections 93A, 93B, 93C(2) and 93D above" for "sections 23A, 24, 26B, 26C and 31 of this Act"; and
(b) the omission of subsections (2) to (4).

§ The Prevention of Terrorism (Temporary Provisions) Act 1989 (c.4)

§ 4. The same section as is inserted in the Act of 1986 by paragraph 1 shall be inserted in the Prevention of Terrorism (Temporary Provisions) Act 1989, immediately after section 19, as section 19A, but with the substitution—

(a) in subsection (1), of "sections 9 to 11. 17 and 18A above" for "sections 23A, 24, 26B, 26C and 31 of this Act"; and
(b) in subsection (2), of "18A" for "26B".

§ The Criminal Justice (International Co-operation) Act 1990 (c.5)

§ 5. The same section as is inserted in the Act of 1986 by paragraph 1 shall be inserted in the Criminal Justice (International Co-operation) Act 1990, after section 23, as section 23A, but with— 1109

(a) the substitution in subsection (1), of "section 14(2) above" for "sections 23A, 24, 26B, 26C and 31 of this Act"; and
(b) the omission of subsections (2) to (4).

§ The Northern Ireland (Emergency Provisions) Act 1991 (c.24)

§ 6. The same section as is inserted in the Act of 1986 by paragraph 1 shall be inserted in the Northern Ireland (Emergency Provisions) Act 1991, after section 55, as section 55A, but with the substitution—

(a) in subsection (1), of "sections 53, 54(2) to (6) and 54A above" for "sections 23A, 24, 26B, 26C and 31 of this Act"; and
(b) in subsection (2), of "54A" for "26B".'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 181. This was taken with Amendment No. 154.
Moved, That the House do agree with the Commons in their Amendment No. 181.—(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 182 Schedule 3, page 47, line 32, at end insert:

§ 'The Criminal Appeal Act 1968 (c.19)

§ In section 50 of the Criminal Appeal Act 1968 (meaning of "sentence"), the following shall be substituted for subsection (1)—

§ "(1) In this Act "sentence", in relation to an offence, includes any order made by a court when dealing with an offender including, in particular—

(a) a hospital order under Part III of the Mental Health Act 1983, with or without a restriction order;
(b) an interim hospital order under that Part;
(c) a recommendation for deportation;
(d) a confiscation order under the Drug Trafficking Offences Act 1986 other than one made by the High Court;
(e) a confiscation order under Part VI of the Criminal Justice Act 1988;
(f) an order varying a confiscation order of a kind which is included by virtue of paragraph (d) or (e) above;
(g) an order made by the Crown Court varying a confiscation order which was made by the High Court by virtue of section 4A of the Act of 1986; and
(h) a declaration of relevance under the Football Spectators Act I989."'.

§ 183 Page 47, line 32, at end insert:

§ 'The Criminal Procedure (Scotland) Act 1975 (c.21)

§ .—(1) The Criminal Procedure (Scotland) Act 1975 shall be amended as follows.

§ (2) In each of sections 181 and 382 (admonition in, respectively, solemn and summary proceedings), for "found guilty" substitute "convicted".

§ (3) In section 191 (effects of probation and absolute discharge: solemn proceedings), for paragraph (a) of subsection (3) substitute—

§ "(a) any right to appeal;".

§ (4) In section 233 (note of appeal)—

(a) in subsection (1)—
1. (i) in paragraph (a), for "against sentence alone" substitute "under section 228(1) (b), (bb), (be) or (bd) of this Act" and after "sentence", where it occurs for the second time, insert "(or as the case may be, of the making of the order disposing of the case or deferring sentence)"; and
2. (ii) in paragraph (b), after "sentence" insert "(or as the case may be, of the making of the order disposing of the case or deferring sentence)"; and
(b) in subsection (4), for "against sentence alone" substitute "under section 228(1) (b), (bb), (be) or (bd)".

§ (5) In section 238(1) (admission to bail), for paragraph (b) substitute—

§ "(b) any relevant appeal by the Lord Advocate under section 228A of this Act.".

§ (6) In section 244(2) (abandonment of appeal), after "sentence"—

(a) where it first occurs, insert "(or as the case may be against both conviction and disposal or order)"; and
(b) where it occurs for the second time, insert "(or disposal or order)".

§ (7) In section 254 (disposal of appeals in solemn proceedings)—

(a) in subsection (2)—
1. (i) after "appellant" insert "(or as the case may be any disposal or order made)";
2. (ii) in each of paragraphs (a) and (b), after "sentence" insert "(or disposal or order)";
3. (iii) after "sentence", where it occurs for the fourth time, insert "or make another (but not more severe) disposal or order"; and
4. (iv) after "sentence", where it occurs for the fifth time, insert ", disposal or order";
(b) in subsection (4), after "appellant" insert "(or disposal or order made)"; and
(c) after subsection (4) insert—

§ "(4A) In subsection (3) above, "appeal against sentence" shall, without prejudice to the generality of the expression, be construed as including an appeal under section 228(1) (bb), (be) or (bd), and any appeal under section 228A, of this Act; and other references to sentence in that subsection shall be construed accordingly.".

§ (8) In section 268 (reckoning of time spent in custody pending appeal), in each of subsections (1) and (2), for "appeal by the Lord Advocate against the sentence passed on conviction" substitute "relevant appeal by the Lord Advocate under section 228A of this Act".

§ (9) In section 392 (effects of probation and absolute discharge: summary proceedings) for paragraph (a) of subsection (3) substitute—

§ "(a) any right to appeal;".

§ (10) In section 442B (method of appeal against sentence alone in summary proceedings)—

(a) after "person" insert ", or as the case may be a person found to have committed an offence,";
(b) the words "against sentence alone" shall cease to have effect; and
(c) after "442(1) (a) (ii)" insert "or (iia)".

§ (11) In section 443A (suspension of disqualification, forfeiture, etc.), in each of subsections (1) and (2), at the end add "(or disposal or order)".

§ (12) In section 444(1) (b) (contents of application for stated case), after "sentence" insert "or disposal or order".

§ (13) In section 452A (disposal of stated case)—

(a) in subsection (2), after "sentence", where it first occurs, insert "("sentence" being construed in this subsection and in subsection (3) below as including disposal or order)"; and
(b) after subsection (4) insert—

§ "(4A) Any reference in subsection (4) above to convicting and sentencing shall be construed as including a reference to convicting and making some other disposal or convicting and deferring sentence."

§ (14) In section 453B (appeals against sentence only in summary proceedings)—

(a) in each of subsections (1), (2), (7) and (8), after "442(1) (a) (ii)" insert "or (iia)";
(b) in subsection (2)—
1. (i) in paragraph (a), after "sentence" insert "(or as the case may be of the making of the order disposing of the case or deferring sentence)"; and
2. (ii) in paragraph (b), at the end add "(or making)";
(c) in subsection (3) (b), at the end add "(or as the case may be who disposed of the case or deferred sentence)"; and
(d) in subsection (4), after "sentence" add "(or within two weeks of the disposal or order)".

§ (15) In section 453C (disposal in summary proceedings of appeal by note of appeal)—

(a) in subsection (3), after "442(1) (a) (ii)" insert "or (iia)"; and
(b) at the end add—

§ "(4) In subsection (1) above, "appeal against sentence" shall, without prejudice to the generality of the expression, be construed as including an appeal under section 442(1) (a) (iia), and any appeal under section 442(1) (c), of this Act; and without prejudice to subsection (5) below, other references to sentence in that subsection and in subsection (3) above shall be construed accordingly.

§ (5) In disposing of any appeal in a case where the accused has not been convicted, the High Court may proceed to convict him; and where it does, the reference in subsection (3) above to the conviction in respect of which the sentence appealed against was imposed shall be construed as a reference to the disposal or order appealed against.".'.

§ 184 Page 47, line 32, at end insert:

§ 'The Criminal Appeal (Northern Ireland) Act 1980 (c.47)

§ . The provisions of section 30 of the Criminal Appeal (Northern Ireland) Act 1980 (interpretation of Part I) shall become subsection (1) of that section and the following subsection shall be added—

§ "(2) In this Part of this Act "sentence" also includes—

(a) a confiscation order made by the Crown Court under the Northern Ireland (Emergency Provisions) Act 1991;
(b) an order varying such an order; and
(c) an order made by the Crown Court varying a confiscation order made by the High Court by virtue of section 52B of the Act of 1991."'.

§ 185 Page 47, line 39, at end insert:

§ 'The Drug Trafficking Offences Act 1986 (c.32)

§ In section 3(3) of the Drug Trafficking Offences Act 1986 (statements relating to drug trafficking) for "(2)" there shall be substituted "(1D)".'.

§ 186 Page 47, line 39, at end insert:

§ '. In section 38(1) of the 1986 Act (interpretation), the following definitions shall be inserted at the appropriate places—

§ " "confiscation order" means an order under section 1 of this Act and includes, in particular, an order under that section which is made by virtue of section 4A, 5A or 5B;"

§ " "defendant" means a person against whom proceedings have been instituted for a drug trafficking offence (whether or not he has been convicted);".'.

§ 187 Page 48, line 37, at end insert:

§ 'The Criminal Justice Act 1988 (c.33)

§ .—(1) Section 98 of the Criminal Justice Act 1988 (disclosure of information subject to contractual restriction on disclosure) shall cease to have effect.

§ (2) In section 172 of the 1988 Act (extent)—

(a) in subsection (2), after "84 to 88" there shall be inserted "sections 93A to 93D; sections 93F and 93G"; and
(b) in subsection (4), after "sections 90 to 93" there shall be inserted "section 93E".'.

§ 188 Page 48, line 37, at end insert:

1112

§ 'The Prevention of Terrorism (Temporary Provisions) Act 1989 (c.4)

§ 8A. In section 19(1) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (institution of proceedings) for the words "or 18" in both places where they occur there shall be substituted ", 18 or 18A".'.

§ 189 Page 48, line 42, at end insert:

§ 'The Northern Ireland (Emergency Provisions) Act 1991 (c.24)

§ 9A.—(1) In section 49(1) (a) of the Northern Ireland (Emergency Provisions) Act 1991 (relevant offences)—

(a) after "(c)" there shall be inserted ", (dd)"; and
(b) after "(k)" there shall be inserted ", (kk);".

§ (2) In section 56(1) of the 1991 Act (interpretation of confiscation provisions), at the end of the definition of "confiscation order", there shall be added "and includes, in particular, an order under that section which is made by virtue of section 48A or 52B above".

§ (3) In section 69(2) (c) of the 1991 Act, for "paragraph 20" there shall be substituted "paragraphs 20 to 20C".

§ (4) In section 71(2) of the 1991 Act (extent), for "54" there shall be substituted "to 54A, 55A".

§ (5) In Part I of Schedule 1 (scheduled offences) to the 1991 Act—

§ (a) after paragraph 20(d) there shall be inserted—

§ "(dd) section 18A (failure to disclose knowledge or suspicion of financial assistance for terrorism);" and

§ (b) after paragraph 22(k) there shall he inserted—

§ "(kk) section 54A;".

§ (6) In paragraph 2(5) of Schedule 4 to the 1991 Act (application of procedure for enforcing fines), after "made by", where those words first occur, there shall be inserted "the High Court. by virtue of section 52B of this Act, or by".

§ (7) The following sub-paragraph shall he added at the end of paragraph 2 of Schedule 4 to the 1991 Act—

§ "(7) Where the High Court makes a confiscation order by virtue of section 52B of this Act in relation to a defendant who has died, subparagraph (1) above shall be read as referring only to sections 35(1) (a), (b) and (d) and 35(4) (a) and (b) of the Act of 1945."'.

§ 190 Schedule 4, page 49, line 33, at end insert:

'1980 c. 43.

The Magistrates' Courts Act 1980.

In section 12(1) (a) the words "and section 18 of the Criminal Justice Act 1991 (unit fines)".'.

§ 191 Page 49, line 33, at end insert:

'1975 c. 21

The Criminal Procedure (Scotland) Act 1975.

In section 442B, the words "against sentence alone".'.

§ 192 Page 49, line 37, column 3, at beginning insert 'In section 1, in subsection (5) (b) (iii), the words from "section 39" to "bankruptcy orders)" and subsection (8)'.

§ 193 Page 49, line 38, column 3, at end insert 'In section 26A(3), the words from "or by" to the end.'.

§ 194 Page 49, line 41, column 3, at end insert 'In section 38(2), the entries relating to a confiscation order and a defendant.'.

§ 195 Page 50, line 27, column 3, at end insert 'Section 98.'.

§ 196 Page 50, line 28, at end insert: 1113

'1989 c. 4.

The Prevention of Terrorism (Temporary Provisions) Act 1989.

In section 9(1), the word "or" immediately before paragraph (b).'.

§ 197 Page 50, line 32 at end insert:

'1993 c.9.

The Prisoners and Criminal Proceedingsd (Scotland) Act 1993.

In section 10(1), the words "(whether before or after the commencement of this section)".'.

§ 198 Page 50, line 32, at end insert:

'1991 c. 24.

The Northern Ireland (Emergency Provisions) Act 1991.

In section 48(3), the words "during the period of postponement". In section 50(2), the word "or" immediately before paragraph (c). Section 51(3). Section 67(6).'.

§ 199 Page 50, line 32, at end insert:

'1191 c. 53.

The Criminal Justice Act 1991.

Section 17(3) (e). Section 19. Section 20(5). Section 22. Section 28 (3). In section 30 (1), the words "or the Lord Chancellor". In Schedule 4, Part V. In Schedule 11, paragraph 24.'.

§ 200 Page 51, line 5, at end insert:

'S.I. 1992/3218.

The Banking Coordination (Second Council Directive) Regulations 1992.

In Schedule 8, paragraphs 8(3), 9(2) and 10(3). In Schedule 10, paragraphs 17 and 25.'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 182 to 200 en bloc. These amendments to Schedules 3 and 4 are consequential on changes made elsewhere in the Bill.
Moved, That the House do agree with the Commons in their Amendments Nos. 182 to 200 en bloc.—(Earl Ferrers.)
On Question, Motion agreed to.

§ COMMONS AMENDMENTS

§ 201 In the Title, line 6, after '1988;' insert 'to make provision with respect to the financing of terrorism, the proceeds of terrorist-related activities and the investigation of terrorist activities;'.

§ 202 Line 6, after'1988;', insert 'to amend Part I of the Criminal Justice Act 1991;'.

§ 203 Line 8, after 'securities;' insert 'to provide for certain offences created by the Banking Coordination (Second Council Directive) Regulations 1992 to be punishable in the same way as offences under sections 39, 40 and 41 of the Banking Act 1987 and".

§ 204 Line 10, after |Articles' insert '3,'.

1114

§ 205 Line 11, leave out from 'in' to 'to' where it first occurs in line 13 and insert 'that way'.

§ 206 Line 13, after '1987' insert 'to make provision with respect to the penalty for causing death by dangerous driving or causing death by careless driving while under the influence of drink or drugs;'.

§ 207 Line 18, after 'arrangements:' insert 'to amend the Criminal Procedure (Scotland) Act 1975 and Part I of the Prisoners and Criminal Proceedings (Scotland) Act 1993;'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 201 to 207 en bloc. These amendments to the Title of the Bill are necessary to take account of new clauses which have been added in another place.
Moved, That the House do agree with the Commons in their Amendments Nos. 201 to 207 en bloc.—(Earl Ferrers.)
On Question, Motion agreed to.