§ 4 Clause 6, page 32, at end insert "unless it is of the opinion that there are exceptional circumstances which justify its not doing so"
§
The Commons disagreed to the amendment for the following Reason—
4A Because it is not appropriate for the court to have a discretion to decide not to initiate proceedings for confiscation orders.
§ Lord Falconer of Thoroton rose to move, That the House do not insist on their Amendment No. 4 to which the Commons have disagreed for their reason numbered 4A, but do agree Amendments Nos. 4B to 4K in lieu thereof.
§
4B. Clause 75, page 48, line 4 at end insert—
(3A) But an offence does not satisfy the test in subsection (2)(d) or (e) unless the defendant obtains relevant benefit of not less than £5000.(3B) Relevant benefit for the purposes of subsection (2)(d) is—
(3C) Relevant benefit for the purposes of subsection (2)(e) is—
(3D) The Secretary of State may. by order vary the amount for the time being specified in subsection (3A).
§
4C Clause 341, page 200, line 3, at end insert—
(5) There must be reasonable grounds for believing that it is in the public interest for the material to be produced or for access to it to be given, having regard to—
§
4D Clause 348, page 203, line 18, after "sought," insert—
(aa) it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained,
§
4E Page 203, line 31, after "(8)," insert—
(aa) there are reasonable grounds for believing that it is in the public interest for the material to be obtained, having regard to the benefit likely to accrue to the investigation if the material is obtained,
§
4F Clause 353, page 206, line 41, at end insert—
(4) There must be reasonable grounds for believing that it is in the public interest for the information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
§
4G Clause 360, page 211, line 19, at end insert—
(6) In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the customer information to be provided, having regard to the benefit likely to accrue to the investigation obtained.
§
4H Clause 366, page 213, line 44, at end insert—
(6) In the case of any investigation, there must be reasonable grounds for believing that it is in the public interest for the account information to be provided, having regard to the benefit likely to accrue to the investigation if the information is obtained.
§ 4J Clause 451, Page 260, line 25, after "section" insert "75(3D)"
§ 4K Page 260, line 36, after "section" insert "75(3D)"
§ The noble and learned Lord said: My Lords, I beg to move that the House do not insist on their Amendment No. 4 to which the Commons have disagreed for their reason numbered 4A, but do agree Amendments Nos. 4B to 4K in lieu thereof. With these amendments I shall also speak to Lords Amendments Nos. 43 and 73 to which the Commons have disagreed for their reasons numbered 43A and 73A, and our proposed Amendments Nos. 43B to 43K inclusive and 73B to 73D in lieu thereof.
§ These amendments return us to themes that will be quite familiar to noble Lords. Let me begin by discussing the question of mandatory versus discretionary confiscation procedures. In explaining our reasons for opposing the amendments, I should make it clear at the outset that the Government are not wedded to mandatory procedures. As was pointed out more than once during the recent debate in another place, the Bill contains many instances where discretion is granted to the courts.
§ For example, the court has a discretion as to whether it makes a restraint or receivership order. Our preference is to retain where possible the traditional discretion of the courts. However, where it is necessary for good reason to fetter that discretion in the public interest, we shall have no hesitation in doing so. I think it fair to add that we are not the first government to have enunciated such a principle.
§ The difficulty with the amendments, as we see it, is that they would reverse a steady historical development in favour of more mandatory confiscation procedures. This development took place over a number of statutes, beginning with the Drug Trafficking Offences Act 1986 and ending with the Proceeds of Crime Act 1995. The main reason for increasingly mandatory confiscation procedures was the importance which successive governments and oppositions have placed on the recovery of criminal proceeds as a weapon against serious and acquisitive crime, coupled with advice from the enforcement authorities that the courts were not exercising their discretionary powers as rigorously as they should have done.
§ Those concerns are as valid today as ever. The Bill comes against a background where that confiscation is still underused and where the Government have had to create a right of appeal for the prosecutor and director to deal with courts that refuse to apply the procedures at all, despite their mandatory terms. So, on this occasion, there is good reason for making an exception to the general rule in favour of the court's discretion.
§ We accepted that the amendments are drafted in terms of exceptional cases, but we believe that courts will be tempted to expand the definition of "exceptional circumstances" to encompass cases that 45 are not truly exceptional. They would encourage different practices across the jurisdiction, there would be a decline in the benefit confiscated and their ultimate effect would be to discredit the legislation, not only with the public but also with the criminal.
§ As we made clear when the point was previously discussed in this House, we are firmly opposed on principle to the notion that there can be exceptional reasons not to make a confiscation order. Recovery of benefit from crime can never be wrong. I must oppose the amendments to maintain the basic integrity of the Bill. For the reasons that I have given, I would ask the House not to insist upon its Amendments Nos. 4, 43 and 73, to which the Commons have disagreed.
§ Perhaps I may turn to the government amendments in lieu. During the long passage of the Bill the Government have on many occasions shown themselves ready and willing to listen to what the Opposition have been telling us. We continue to take the view that it is not appropriate for the court to have a discretion when it comes to making a confiscation order. However, we have considered the court's role in the earlier, investigatory stages before the prosecutor asks for a confiscation hearing. We think that the court has an important role at this stage in ensuring that inappropriate investigations are not mounted. That will ensure that cases that should not be brought before the case even gets to the stage of a confiscation hearing.
§ That brings me to a related question which has also exercised the Opposition both here and in another place. It was objected that one of the requirements for the granting of the investigatory powers and warrants in Part 8 should be that it was in the public interest for the court to grant the order or warrant. We had previously reached the conclusion that, while a public interest test applied, it was not necessary to make that clear on the face of the Bill. Having reconsidered the point, we recognise that there are still some concerns. Accordingly we have prepared Amendments Nos. 4C to 4H inclusive and 43C to 43H which will put the matter beyond doubt.
§ Part 8 of the Bill would now state explicitly that the court will have the discretion to make investigatory orders only where it would be in the public interest to do so. I hope, therefore, that noble Lords will join with me in approving Amendments Nos. 4C to 4H and 43C to 43H inclusive.
§ In considering the court's discretion, we have also accepted that there is some strength to the argument, which has been presented under various guises throughout the passage of the Bill, that some of the criminal lifestyle tests potentially expose a defendant convicted of very trivial offences to severe consequences. We accept that, as the Bill currently stands, it would be possible for the court to apply assumptions where an offender is convicted of one summary offence lasting for more than six months, or four summary offences of any description from which only a very small amount of benefit has been derived.
§ The same is true where an offender is convicted of an offence from which he has benefited and has two other past convictions of the same kind. The benefit could be 46 trivial, but a confiscation order could still be made. As we pointed out, it is unthinkable that the director or the prosecutor would mount a confiscation proceeding in an obviously inappropriate case or that the court would apply the assumptions on its own motion in such cases. We are willing to concede, however, that some formal fetter to the authorities' powers will help to make it clear that confiscation orders will not be applied for unfairly against those offenders who have a criminal lifestyle as it is understood by the Bill.
§ In order to meet the concerns that have been expressed, but at the same time preserve the integrity of confiscation as a mandatory procedure, we have tabled Amendments Nos. 4B, 43B and 73B to the criminal lifestyle scheme, which will have the following effect. The scheme will apply to those convicted of one of more scheduled offences exactly as at present. Instead of the present arrangements, however, we are now proposing that the court will be able to decide that the defendant satisfies one of the other criminal lifestyle tests only where the total benefit from the triggering offences and any other offences taken into account for sentencing exceeds £5,000.
§ That will ensure that an offender who is not convicted of one of the special scheduled offences can be identified as a criminal lifestyle offender only if he has benefited significantly from offences of which he has been convicted, or which are taken into consideration by the court in determining sentence.
§ Amendments Nos. 4J and 4K, 43J and 43K and 73C and 73D include a power for the Secretary of State to change the £5,000 threshold by order. This power will be used both to take account of inflation and to respond to different patterns and trends of offending. It is subject to the affirmative resolution procedure because we accept that Parliament should have full opportunity to scrutinise any changes to the criminal lifestyle tests.
§ The change will meet concerns that have been expressed in both Houses about the breadth of the provisions and I hope therefore that the Opposition will be prepared to lend it their support and that they will join me in not insisting upon the amendments I discussed earlier.
§ These amendments will also strengthen the Bill. I hope that your Lordships will join me in approving them. I commend them to the House.
§ Moved, That the House do not insist on their Amendment No. 4, to which the Commons have disagreed for their reason numbered 4A, but do agree Amendments Nos. 4B to 4K in lieu thereof.—(Lord Falconer of Thoroton.)
§ On Question, Motion agreed to.