Proceeds of Crime Bill (Hansard, 13 May 2002)

HL Deb 13 May 2002 vol 635 cc23-80 23

§ 3.51 p.m.

§ The Minister of State, Home Office, (Lord Rooker)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Rooker.)
On Question, Motion agreed to.
House in Committee accordingly.

§ [THE CHAIRMAN OF COMMITTEES in the Chair.]

§ Clause 72 [Serious default]:

§ Lord Kingsland
moved Amendment No. 76: Page 45, line 32, leave out "serious" and insert "negligent 24 The noble Lord said: Under Clause 72 of the Bill compensation is payable to the defendant who has suffered loss in consequence of a confiscation order, a restraint order, the appointment of a receiver or other orders under Part 2 of the Bill. However, before a defendant is entitled to compensation, he or she must show that proceedings were never brought, or he was not convicted of an offence, or his conviction was quashed, or that he was pardoned.
In all those circumstances any confiscation or other order made will be discharged. The defendant's loss may be modest or substantial. It could be that, as a result of the restraint order, he was unable to continue his lawful business; indeed, he may have lost that business as a result, and that loss could have been substantial.
It is right and proper, therefore, that any person suffering such loss, in such circumstances, should be entitled to compensation. However, before being entitled to compensation, that innocent defendant must prove that there has been a serious default by a member of the police force, the CPS, the Serious Fraud Office, a customs officer or an officer of the Commission of the Inland Revenue. A mere mistake is not sufficient. A careless mistake is not sufficient. Only a serious default gives rise to compensation, however disastrous the consequences for the innocent party.
That cannot be right. The powers given to the police force, the CPS, the Serious Fraud Office, a customs officer or an officer of the Commission of the Inland Revenue can ruin people. Those powers can be exercised even when no proceedings are ever brought. The courts are given little discretion in the matter and in some circumstances must make the order where the prosecutor requests.
We believe that, where there are such powers, there must also be accountability on behalf of the public authority; the two go hand in glove. If a member of the prosecution team makes a careless mistake, we do not believe that the innocent defendant should bear any loss as a consequence.
In short, it is important that those who have those powers exercise them as carefully as they can, and that those who supervise them ensure that they do so. If they fail then compensation should be payable. We suggest therefore that compensation should be payable in cases of negligent default and not just serious default. I beg to move.

§ Lord Goodhart
I speak to Clause 72 stand part, Amendment No. 77, Clause 142 stand part, Amendment No. 134, Clause 226 stand part and Amendment No. 193. Those are all in the same form respectively as regards England and Wales, Scotland and Northern Ireland.
We support Amendment No. 76, but we go somewhat further. We suggest that where property is subject to a restraint order then compensation should be paid, whether or not there is negligence, if the order is ultimately refused. The position in ordinary civil proceedings is that, where one party is entitled to or obtains an order from the court to freeze the property 25 of another—normally known as a Mareva injunction—the making of the injunction is conditional upon the party who seeks the injunction giving a cross-undertaking in damages; that is, an undertaking to compensate any other party for any loss suffered as a result of the making of the order.
We believe that that is the right principle and that there is no justification for the Government observing a lower standard of compensation than would be the case in ordinary civil proceedings between private parties. We believe therefore that the appropriate course, where the restraint order is made but is discharged and not replaced by a confiscation order, is for compensation to be paid for the loss which is suffered.
The Government are exercising considerable powers. The power to freeze somebody's property, as the noble Lord, Lord Kingsland, said, is one that may cause serious loss. It should therefore be the automatic result that if the order is discharged, compensation is paid. I accept, as would be the case in civil proceedings, that compensation may not be ordered in the exceptional case where the party against whom the order is made has in some way acted so as to cause suspicion and in effect to bring the order on himself. Subject to that there should be an automatic right to compensation.

§ Lord Rooker
The two groups of amendments spoken to by the noble Lords, Lord Kingsland and Lord Goodhart, essentially deal with the same part of the Bill but would have a considerably different effect. That is probably recognised in the brief speeches that we have just heard.
The effect of the first group of amendments—Amendments Nos. 76, 132, 133, 191 and 192—would be to make compensation payable where there was negligent default on the part of the enforcement authorities in the investigation or prosecution of an offence, and a loss had been occasioned. The effect of the second group, spoken to by the noble Lord, Lord Goodhart, would he to make compensation whenever a restraint order is discharged without a confiscation order being made, no matter why the confiscation order was not subsequently made. It may be useful for the Committee to appreciate that the provisions were debated substantively in the other place, as recorded in Hansard of 29th November at columns 411 to 426.
I turn to the first set of amendments. The Bill as drafted provides that compensation is payable where there is a serious default. The provision is settled and the Bill reflects existing legislation in that respect. There is nothing new about it. The word "negligent" is broader than the word "serious". The amendments would extend the conditions in which compensation was payable from those where one of the enforcement authorities committed a serious default to those in which the authorities committed any negligent act. Clause 72 uses the word "serious" rather than the word "negligent" because the enforcement authorities must not feel unnecessarily inhibited in the exercise of their duties.
26 As the Explanatory Notes point out. the restriction to serious default cases is based on the principle that the restraint and realisation of the property is ancillary to a criminal trial—in the same way as is the detention of a person pending trial. In neither case is compensation paid on acquittal as a matter of course. Many years ago, I remember raising the case of one of my constituents who served his term of imprisonment and had been released before he got his conviction and sentence quashed. He was a former police officer, so it was a highly contentious case, but he could not get a penny from the Home Office. I fear that that is the way of the world.
It is reasonable to make statutory provision for compensation where there is a serious matter, such as the fabrication of evidence, but it would be wrong to hang a compensation scheme around the necks of enforcement authorities for genuine mistakes made in the exercise of their duties. Where the investigating and prosecuting authorities have made mistakes leading to the making of a restraint order, it will be open to those affected to sue them for negligence in the civil courts. In deciding whether or not those authorities owe a duty of care, the courts will take into account the relevant public interest in ensuring that crime is investigated and prosecuted. That is our starting point.
The amendments would discourage the investigation and prosecution of crime and ultimately ensure that more criminals were left to hold onto their assets. We therefore find their wording unsatisfactory and I hope that Members of the Committee will not press them.
As I explained, the second set of amendments would give the courts power to award compensation in any circumstances where property is restrained but no confiscation order subsequently made. They would not provide the courts with any criteria as to how they should apply their power to award compensation. That would be completely unacceptable. I remind the Committee that the serious default test recognises the fact that the restraint is an aspect of criminal proceedings where a similar test applies in general before ex gratia payments are made.
The practical effects of the amendments could be enormous. For example, every defendant acquitted on a technicality could lodge a claim for compensation in respect of alleged loss while his property was under restraint. As I explained in relation to the first set of amendments, enforcement authorities must not be inhibited from performing their duties. The amendments would have precisely that effect. Indeed, they would make the whole Bill unworkable.
Obviously, these matters have been considered since they were debated in the other place, but we are less persuaded of the merits of the second set of amendments than we are of the first, because they would make the Bill entirely unworkable.
We do not think that the comparison with the Mareva injunction made by the noble Lord, Lord Goodhart, applies. We are talking about the possibility of criminal proceedings against a 27 defendant. Restraint will be applied only where there is reasonable cause to believe that a defendant has benefited from criminal conduct. Let me make it abundantly clear that we are not discussing fishing expeditions. We do not have criminal prosecution on the basis of fishing expeditions in this country—and quite right too. The same test for compensation applies as under current legislation. There is nothing new about the principle of the Bill's provisions; it has already stood the test of time in existing procedure.
I hope that, having aired this important issue, Members of the Committee will not press their amendments.

§ 4 p.m.

§ Lord Kingsland
I thank the Minister for his response. There is a curious inequality of approach by the Government between what the Minister said about this part of the Bill and what the Government provide in Part 7. Under Part 7, covering money laundering, which the Committee has yet to discuss, an individual who negligently fails to report a particular transaction will be subject to criminal proceedings. Yet in this part of the Bill, a member of the executive arm in one form or another will not be liable, even in negligence, for failing to observe a duty of care in relation to the particular defendant to which his or her attention is directed.
I submit that that is unacceptable. It is wholly appropriate for public officials exercising their powers under this part of the Bill to be subject to the law of negligence. Clearly, a duty of care must be owed, but once it is established that that duty of care is owed, an appropriate standard of conduct should apply.
I appreciate the careful attention that the Minister paid to the amendment. I shall not press it now, but I shall almost certainly return to it on Report. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Clause 72 agreed to.

§ Clause 73 [Order varied or discharged]:

§ [Amendment No. 77 not moved.]

§ Clause 73 agreed to.

§ Clause 74 agreed to.

§ Clause 75 [Criminal lifestyle]:

§ [Amendments Nos. 78 to 80 not moved.]

§ The Deputy Chairman of Committees (Viscount Allenby of Megiddo)
Before calling Amendment No. 81, I must inform the Committee that if it is agreed to, I cannot call Amendment No. 82.

§ Lord Rooker
moved Amendment No. 81: Page 47, line 34, leave out paragraphs (a) to (c) and insert— (a) it is specified in Schedule (Lifestyle offences); On Question, amendment agreed to.

§ [Amendments Nos. 82 to 85 not moved.

§ Lord Rooker
moved Amendment No. 86: Page 48, line 4, at end insert— (4) The Secretary of State may by order amend Schedule (Lifestyle offences). On Question, amendment agreed to.

§ [Amendment No. 87 not moved.]

§ Clause 75, as amended, agreed to.

§ Clause 76 [Conduct and benefit]:

§ [Amendment No. 88 not moved.]

§ Clause 76 agreed to.

§ Clause 77 agreed to.

§ Clause 78 [Gifts and their recipients]:

§ [Amendment No. 89 not moved.]

§ Clause 78 agreed to.

§ Clauses 79 to 83 agreed to.

§ Clause 84 [Property: general provisions]:

§ Lord Goodhart
moved Amendment No. 90: Page 51, line 22, at end insert— () interests in property The noble Lord said: The definition of property in Clause 84 is too wide. Under Clause 42, the Crown Court may make a restraint order prohibiting any person from dealing with what is described as "realisable property" held by him. Under Clause 83, "realisable property" means, any free property held by the defendant". Clause 84(2)(a) states that, property is held by a person if he holds an interest in it". Under Clause 84(2)(f), an "interest" means, any legal estate or equitable interest". Under ordinary property rules, an interest in property can be owned, but ownership of a particular interest in property does not mean that the owner of that interest necessarily owns the other interests in the same property. The definition in the clause radically extends the ordinary meaning of property. It means that the mere holding of an interest in that property may be interpreted, for the purposes of a restraint order, as including the property itself and all other interests in it. For example, if a defendant rents a house, he has a legal estate in that house: that is an interest. Under the terms of Clause 84(2)(a), the defendant would be treated as holding not only his tenancy of the house but the entire interest in the house itself. If the tenancy is of a flat that is part of a block of flats, it is at least arguable that the defendant is to be treated as holding the entire block.
That would mean that property outside the defendant's ownership or control would be treated by the Bill as being held by him and could be subject to a restraint order. It is not good enough to say that the court would not make a restraint order extending to such property or that the court would not, for instance, make a restraint order preventing dealings with a house in which all that the defendant owns is a tenancy. However, even the theoretical possibility that such a restraint order could be made makes it difficult, 29 for example, for the landlord of a property that has been rented by the defendant to dispose of the property itself.
We should make it clear that an interest in property is itself a form of property. That is recognised in Amendment No. 90. Of course, there is nothing in the least unusual about that. In any ordinary definition of property, an interest in a property is a form of property. An interest in a house—whether it be a tenancy, a right of occupation by virtue of a trust or licence or some form of right of way over the land owned with the house—is, in itself, a separate form of property. However, we propose also to remove paragraphs (a) and (b) of Clause 84(2), so that only the interest itself can be subject to a restraint order. Thus, a restraint order would be limited to the extent of a defendant's interest in the property and would not extend to other interests in the same property.
The amendment is sensible, realistic and fair. As the Bill stands, the Government's proposals go well beyond anything that is needed or justified. To make property that does not belong to the defendant and is not, therefore, tainted property potentially subject to a restraint order is seriously wrong and could cause serious hardship. I beg to move.

§ 4.15 p m.

§ Lord Bassam of Brighton
The noble Lord has set his case out well. Amendments Nos. 90, 142, 202 and 265H would define property as including an interest in property. Amendments Nos. 91, 143, 203 and 265J would delete the gloss on the words "held" and "obtained".
The amendments would re-draft the definitions of property in Clauses 84, 153, 238 and 335. Amendments Nos. 90, 142 and 202 expand the definition of property to include interests. However, we consider that interests are already covered by the wide definition of property, particularly that given in paragraphs (b) and (c) of Clause 84(1).
Amendments Nos. 91, 143 and 203 would delete the gloss on the words "held" and "obtained" in relation to property. As the noble Lord explained, he does not see why that gloss is necessary if the Bill has already provided that property includes an interest. However, the terms "held" and "obtained" appear regularly in the Bill. If the paragraphs were removed, it might cause doubt about what is meant when the Bill states that a person holds or obtains property.
The gloss on the words "held" and "obtained" appears in current legislation at Section 102 of the Criminal Justice Act 1988 and Section 62 of the Drug Trafficking Act 1994. If it were not included in this Bill, it might give rise to the inference that we intended the words "held" and "obtained" to have a meaning that differed from that in existing legislation. That is not the case, and it would be unfortunate if the Bill were to be interpreted in that way.
The amendments to Clause 335, Amendments Nos. 26511 and 265J, seem to be unnecessary. They raise concerns similar to those that we have expressed in respect of Clause 84.
30 For those reasons, we cannot accept the amendment, and we hope that the noble Lord will be able to withdraw it.

§ Lord Goodhart
The Minister has not really dealt with my arguments on this point. I do not blame him for that; they are, in a sense, highly technical issues of property law. No doubt, the Minister's brief has come from somewhere else. However, there is no doubt about what holding or obtaining property means, in ordinary language. Someone who holds an interest in property holds a form of property. He does not, however, hold a block of flats, simply because he holds a tenancy in the block: he holds the tenancy.
I see no need to resist the amendments on the basis that they would cause any doubt about references elsewhere in this Bill or in other legislation to the holding or obtaining of property. The real problem is that the definition of property in the clause would extend a restraint order beyond the property actually held by the defendant himself and impose a restraint order on any other interest in property in which the defendant held an interest. That goes well beyond anything that can be justified. It is clear that property should be defined in such a way as to mean that all that can be subjected to a restraint order is property held by the defendant himself or tainted property, which can be made subject to a confiscation order. Therefore, I hope that the Government will consider that matter in the interval between now and the Report stage.

§ Lord Bassam of Brighton
I have listened carefully to what the noble Lord has said and I agree that there is an argument upon which we may need to reflect further. I am prepared to give an undertaking to write to the noble Lord so that we can attempt to reach a common understanding and to answer his point. I can see that this is a useful issue on which we should reach a settled view.

§ Lord Hope of Craighead
Will the Minister also consider the Scottish position because the same point arises in the amendment to Clauses 152 and 153? I mention the point only because the law of property in Scotland differs in some respects from the law of property in England and Wales and if the matter is being considered in relation to the English property provisions to which the noble Lord referred, it would be right also to consider the Scottish position in order to ensure that the point applies equally.

§ Lord Bassam of Brighton
It would be right to reflect on that point in order to cover both positions.

§ Lord Goodhart
I am grateful for the Minister's comments. I shall wait to see what arrives in correspondence, but if a satisfactory arrangement cannot be reached I shall wish to bring the matter back on Report. In the meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ [Amendment No. 91 not moved.]

§ Clause 84 agreed to.

§ Clauses 85 to 87 agreed to.

§ Clause 88 [Drug trafficking offences]:

§ On Question, Whether Clause 88 shall stand part of the Bill?

§ Lord Rooker
I rise to ask the Committee to delete Clause 88 from the Bill. I beg to move.

§ Clause 88 negatived.

§ Clause 89 [Money laundering offences]:

§ Lord Rooker
I rise to ask the Committee to delete Clause 89 from the Bill. I beg to move.
Clause 89 negatived.
Clauses 90 to 93 agreed to.

§ Clause 94 [Making of order]:

§ Baroness Buscombe
moved Amendment No. 92: Page 55, line 30, leave out "three" and insert "four The noble Baroness said: In rising to speak to Amendment No. 92, I shall speak also to Amendments Nos. 94, 112 and 116 to 118. Amendment No. 92 is a paving amendment for Amendment No. 94, which returns in principle to one of the most important issues of the Bill; that is, judicial discretion.
Members of the Committee will remember that during the course of the first day in Committee, our Amendments Nos. 11, 13, 93, 97, 98 and 144 proposed that the court should have a discretion as to whether an investigation should take place. That proposal was rejected by the noble and learned Lord the Attorney-General on a number of grounds. First, he explained that it was a mandatory process that was not new. Secondly, he said that the provision was the only way to make legislation workable and effective. Thirdly, he said that it was unlikely in the extreme that prosecutors would consider it appropriate to spend the time or resources on pursuing confiscation orders where that was "plainly inappropriate".
The noble and learned Lord the Attorney-General went on to refer to Clause 11 relating to criminal lifestyle, whereby once an investigation has already begun safeguards exist to minimise incorrect assumptions and instances under which the court may consider that there would be a serious risk of injustice if the case were to continue. Those safeguards could be triggered only after an investigation has begun. That said, the discretion of the courts could not be exercised.
Our Amendments Nos. 15, 97, 98 and 146 proposed an alternative which could give the judge a discretion whether to make a confiscation order once the court had had the opportunity to decide whether the defendant had a criminal lifestyle; in other words, the court could exercise discretion once the judge had before him the information which underlay the reason for the prosecutor's request for an investigation. We believed that that was a sensible compromise which would retain some expressed modicum of trust in our judges and would undoubtedly save time and money. The Minister rejected that alternative on the ground 32 that if the defendant had a criminal lifestyle, that was that. The defendant should pass over his money and then seek to persuade the court why he should have it returned.
Turning to the clauses in the Bill relating to Scotland, we are proposing in the amendment another possibility to exercise discretion at an early stage. The effect of the amendment inserts a fourth condition which must be taken into account before the court acts. Clause 94 is central to the confiscation procedure in Part 3 and lists three conditions which must be fulfilled before the court will make a confiscation order. First, the accused must have been convicted of an offence either in solemn or summary proceedings. Secondly, the prosecutor must ask the court to act under that section. Thirdly, the court must decide to order a disposal in respect of the accused. If all three conditions are fulfilled, the court will act under that clause.
The difficulty with that procedure is that no evidence will have been laid before the court at that stage to establish the prosecutor's grounds for asking the court to act under the clause. Clause 104 makes provisions regarding the statement of information which is to be given to the courts by the prosecutor. As currently drafted, however, information under Clause 104 will be provided to the court only after a decision to proceed under Clause 94 has been made.
Our view is that the statement of information should form an integral part of the initial assessment of the case and we therefore suggest that a fourth condition is added to Clause 94 stating that the court will act only after considering a statement of information.
Adoption of that procedure will ensure that the conditions specified in Clause 94 will mirror the procedure detailed in Clauses 107, 108 and 109. In those clauses, the court will not proceed unless it has considered the evidence presented to it by the prosecutor. The inclusion of that fourth condition in Clause 94 would therefore ensure consistency of confiscation procedure throughout this part of the Bill.
As regards Amendment No. 112 and consequential amendments, if it is accepted that the court should receive a statement of information from the prosecutor before acting under Clause 94, the prosecutor will be required to provide a statement at the stage when the confiscation is sought. This amendment and those related seek to reflect the proposed altered procedure. I beg to move.

§ 4.30 p.m.

§ Lord Hope of Craighead
I support this amendment since it has the support of the Law Society of Scotland. One bears in mind that the second condition is that the prosecutor must ask the court to act under the clause. I believe that in practice a prosecutor would not think it right to take that step unless he was in possession of information which would justify proceeding beyond the opening of the procedure in Clause 94 and carrying it through to the end. Therefore, in practice I suspect 33 that the prosecutor would be in possession of the information called for in the additional condition mentioned in the amendment.
If there were practical reasons why the prosecutor could not at the initial stage provide the information then the position would be rather different. My own experience suggests that in practice the prosecutor would be in a position to do this at the outset. There is much to be said for the point made that it would be better to have the position clarified at the outset so it is established before the procedure gets under way.

§ Lord Bassam of Brighton
My understanding is that the issue was fairly debated in another place and given quite a lot of consideration. As the noble Baroness said, subsections (2) to (4) of Clause 94 set out three conditions which must be satisfied if the court is to act. As the noble Baroness said, these amendments insert a fourth condition, that the court must first consider the evidence contained in the prosecutor's statement of information.
Our argument is that Amendments Nos. 92 and 94 are unnecessary. The prosecutor's statement, which sets out the Crown's calculation of an accused's proceeds of crime and assets, will in practice always be served on a convicted person and also lodged with the court. Accordingly, the court will always have before it a prosecutor's statement, so that point is satisfied.
If the convicted person has neither a proceeds of crime figure nor assets, then the Crown would not pursue confiscation. Amendments Nos. 92 and 94 would therefore not provide any further safeguard because the protection is already in place. The remaining Amendments Nos. 112, 116 and 118 are consequential on Amendments Nos. 92 and 94.
I am not an expert on the Scottish situation. It is only the prosecutor who can make such a Motion. The court itself cannot instigate confiscation proceedings of its own volition. In addition, confiscation proceedings are only alive and running when the prosecutor makes a Motion and pursues that course. Therefore, the amendment is unnecessary in any event. We see the point which the noble Baroness makes, but we believe that the situation is already covered. I hope that those assurances are sufficient and that the noble Baroness is encouraged to withdraw her amendment.

§ Baroness Buscombe
I thank the Minister for his response. I accept entirely what he has said, which has given me food for thought. I shall consider it with care and at Report stage we shall consider the contrasting position for England and Wales, which may be very helpful to us. On that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ [Amendments Nos. 93 to 98 not moved.]

§ Baroness Buscombe
moved Amendment No. 99: Page 56, line 23, at end insert— () In making representations to the court under subsection (8), any person whom the court thinks is likely to be affected by the order shall he entitled to appear before the court. 34 The noble Baroness said: This amendment seeks to ensure that those persons who are likely to be affected by the making of a confiscation order will have an opportunity to appear before the court to make representations. In essence, it is a probing amendment. While we welcome the expressed position in the Bill, supported by the Law Society of Scotland, to enable third parties who are likely to be affected by a confiscation order to make representations to the court, we believe that it should also be clear from the Bill that such parties can appear before the court to make representations. That should ensure that any confiscation order made will be for the correct amount and that delays in the realisation of the proceeds will be kept to a minimum. Perhaps the Minister can clarify why the reference to representations does not expressly allow for it to be in person. I beg to move.

§ Lord Rooker
I hope that I shall be able to satisfy the noble Baroness. The amendment seeks to expand on Clause 94(8) but it does not add anything to it. Subsection (8) provides that, before making the confiscation order, the court must take into account any representations made to it by any person who the court believes is likely to be affected by it. In practice, any person who may be affected by such an order is entitled to appear before the court and make out a case. That is a well-established procedure in Scotland and it is endorsed by the courts.
The proposed amendment does not afford third parties any greater rights than are already afforded to them under subsection (8). I realise that the wording might not give that impression, but in practice it is exactly the same. We are like minds on this matter. The amendment is unnecessary to achieve the purpose to which the noble Baroness referred. I have put it on record that it has no effect and that no one will be denied the opportunity to put their case.

§ Baroness Buscombe
I thank the Minister for his response which I accept with pleasure. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ [Amendment No. 100 not moved.]

§ Clause 94 agreed to.

§ Clause 95 [Time for making an order]:

§ On Question, whether Clause 95 shall stand part of the Bill?.

§ Lord Rooker
Later, I shall ask the House to delete this clause. Before doing so, I shall speak to Amendment No. 110A. This amendment and others mirror amendments already agreed to by your Lordships' House when we discussed Part 2 of the Bill. The equivalent of Clause 7 in Part 2 of the Bill has already been deleted and the related amendments arise out of concerns expressed in the other place about the drafting of the postponement provisions.
As presently drafted', Clause 95 states that a confiscation order must be made before sentence. However, that is subject to Clause 103, which makes it clear that if confiscation proceedings are postponed 35 under Clause 102, a confiscation order may be made after sentence. In practice, confiscation proceedings are usually postponed and the sentence will normally be passed before a confiscation order is made. That implies that a confiscation order will normally be made before sentence and that confiscation proceedings will be postponed only exceptionally. The terms of Clause 95, as drafted, are extremely confusing.
The amendments are designed to improve the practical and flexible operation of the Bill and mirror the changes already made in Part 2 of the Bill.
Clause 95 negatived.

§ Clause 96 [Recoverable amount]:

§ [Amendment No. 101 not moved.]

§ Clause 96 agreed to.

§ Clauses 97 and 98 agreed to.

§ [Amendment No. 102 not moved]

§ Clause 99 [Assumptions to be made in case of criminal lifestyle]:

§ [Amendment Nos. 103 to 105 not moved.]

§ Clause 99 agreed to.

§ Clause 100 agreed to.

§ Clause 101 [Disposal of family home]:

§ The Earl of Mar and Kellie
moved Amendment No. 106: Page 60, line 3, at end insert— (ba) the needs and financial resources of a person of the same sex as the person concerned, who is and has been for a period of not less than six months living with the person concerned in a relationship which has the characteristics, other than that the persons are of the same sex, of the relationship between husband and wife, or if the person concerned is in custody, had so lived with the person concerned until the person was so remanded; (bb) the needs and financial resources of any member of the person concerned's family who is, and has been, for a period of not less than six months, living with the person concerned in the family home, or if the person concerned is in custody, has so lived with the person concerned was so remanded; The noble Earl said: This group of amendments apply the admired provisions for the treatment of the family home in Scotland. Amendments Nos. 106 and 108 are the substantive amendments; the remainder are consequential.
Amendment No. 106 seeks to extend the protection currently afforded to spouses, former spouses, children and grandchildren, to other members of the accused's family—for example, siblings—and also to same sex partners of at least six months' standing. Anyone for whom the dwelling is home ought to have such protection and a right of representation. Why should there not be equal treatment? All those who live in the dwelling should have their needs and financial resources considered before the decision to dispose of the home is taken. On the subject of same sex partners, I should point out that their relationship has been recognised in the Scottish Parliament's legislation under Section 87(2) of the Adults with Incapacity (Scotland) Act 2000.
36 Amendment No. 108 would require the court to take into account any representation made to it by anyone for whom the dwelling in question is home. It would do so by widening the list of such people under subjection (3) of Clause 101. Elsewhere in the Bill, interested parties are expressly given the opportunity of representation—for example, under Clause 94, which deals with the making of a confiscation order, and under Clause 126, which relates to the protection of persons affected by any action taken by the administrator.
Given the consequences of the sale of a family home for anyone, it is only reasonable that all those involved should be treated equally. I beg to move.

§ Baroness Buscombe
I support the amendment moved by the noble Earl, Lord Mar and Kellie, to which I have attached my name. The amendment would extend the protections currently available to the spouse and children of the accused's family under Clause 101 to same sex partners of the accused who have been living with the latter for no fewer than six months; and to those members of the accused's family who have been residing with him or her for a similar period.
In expressing my support for the noble Earl, I must reiterate his reference to situations where it is most important to consider both the needs and financial resources of other members of the family who have been residing with the accused in the family home. Let us take, as an example, siblings who could have been residing together for a period of time in a house that is registered in joint names.

§ 4.45 p.m.

§ Lord Rooker
In some ways, we return to some of the points made in a previous debate on this complicated area of the Bill dealing with rights to the family home. As the noble Earl said, Amendment No. 106 seeks to extend the protections available to the spouse, the former spouse, and the children and grandchildren of the accused's family under Clause 101 to same sex partners of the accused who have been living with the latter for no fewer than six months; and, indeed, to any member of the accused's family who has been residing with him or her for a similar period. As the noble Earl pointed out, some amendments in this group are consequential.
I took advice on this amendment, because my original notes did not indicate whether the matter had been raised in the other place. We are dealing with an important area of the legislation, and I make no complaints about the issue being raised again. However, Clause 101 provides a degree of protection to the accused's spouse, or former spouse, and to any child or grandchild of the accused against the disposal of the family home. That replicates the existing provisions in the Proceeds of Crime (Scotland) Act 1995, which, in turn, mirrors the provisions of Section 40 of the Bankruptcy (Scotland) Act 1985.
The Government and the Scottish Executive believe that any changes in this area of law should not be made in a piecemeal way—I do not mean that in a pejorative 37 sense —but rather as part of a coherent consideration of all the issues involved. To that end, the Scottish Executive intends to issue a draft family law Bill, based on the 1992 report on family law of the Scottish Law Commission. I understand that the intention is to try to produce that draft around the end of this year.
For the convenience of the Committee, I should point out that the matter was raised on Report in another place on 26th February, at cols. 609 to 624 of the Official Report, when exactly the same point was made. We believe that this area of law should be considered in the round rather than in a piecemeal way by tagging it on to this Bill. We need to await a full and proper deliberation and consultation, based upon some draft legislation issued by the Scottish Executive. Given my explanation of the position, I hope that the noble Earl will feel able to withdraw his amendment.

§ The Earl of Mar and Kellie
I am grateful to the Minister for his response, which I shall certainly want to consider. My instincts are that the Bill is too narrowly drawn, although I take the point that other legislation is similarly narrow. However, if the report of the Scottish Law Commission recommends changes`, we need to know whether that would automatically change this Bill. Indeed, when this Bill is enacted, can the Minister say how it can be subsequently changed?

§ Lord Rooker
For the avoidance of doubt, I should emphasise the fact that the Scottish Law Commission produced a report in 1992 on family law. The Scottish Executive intends to issue a draft family law Bill based upon that 1992 report. Legislation may, or may not, flow from that process. Obviously I cannot pre-empt a draft Bill to which I am not party and which has not yet been produced—and which, of course, would require consultation and parliamentary approval in Scotland. However, that would be the vehicle for change because it is primary legislation. That is the role of the Scottish Executive in relation to Scottish matters.

§ Lord Goodhart
Before the Minister concludes, am I right in thinking that there would perhaps be a problem with amending the legislation that will result from this Bill because we are dealing with a United Kingdom Act to which the Scottish Parliament would not be able to make consequential changes? Is there perhaps a case for introducing a power to amend this clause by way of secondary legislation to coincide with Scottish legislation?

§ Lord Rooker
I do not know the answer to the noble Lord's question. We are legislating here in respect of areas of Scottish law under the agreed devolution settlement proposals. The Scottish Executive agreed that we could deal with this legislation; in other words, we, the Westminster Parliament, are dealing with Scottish arrangements on behalf of the Scottish Executive. I do not know whether it is a two-way process, but, from a practical point of view, I suspect that is must be so. However, that is not a definitive answer.

§ The Earl of Mar and Kellie
We have had a brief but interesting debate. Clearly, we need further to consider the matter. At this point in the proceedings, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ [Amendments Nos. 107 to 110 not moved.]

§ Clause 101 agreed to.

§ Clause 102 [Time for making confiscation order]:

§ Lord Rooker
moved Amendment No. 110A: Page 60, line 44, leave out subsection (1) and insert— (1) The court may—

(a) proceed under section 94 before it sentences the accused for the offence (or any of the offences concerned), or

(b) postpone proceedings under section 94 for a specified period.

(1A) A period of postponement may be extended On Question, amendment agreed to.

§ Clause 102, as amended, agreed to.

§ Clause 103 [Effect of postponement]:

§ [Amendment No. 111 not moved.]

§ Lord Rooker
moved Amendment No. 111 A: Page 62, line 1, leave out subsection (6). On Question, amendment agreed to.

§ Clause 103, as amended, agreed to.

§ Clause 104 [Statement of information]:

§ [Amendments Nos. 112 to 117 not moved.]

§ Clause 104 agreed to.

§ Clause 105 [Accused's response to statement of information]:

§ [Amendment No. 118 not moved.]

§ Clause 105 agreed to.

§ Clause 106 [Provision of information by accused]:

§ [Amendment No. 119 not moved.]

§ Clause 106 agreed to.

§ Clause 107 [No order made: reconsideration of case]:

§ Lord Rooker
moved Amendment No. 119A: Page 64, line 38, leave out "sections 94(4) and 95 do" and insert "section 94(4) does On Question, amendment agreed to.
Clause 107, as amended, agreed to.

§ Clause 108 [No order made: reconsideration of benefit]:

§ [Amendment No. 120 not moved.]

§ Lord Rooker
moved Amendment No. 120A: Page 66, line 20, leave out "sections 94(4) and 95 do" and insert "section 94(4) does On Question, amendment agreed to.
Clause 108, as amended, agreed to.

§ Clause 109 [Order made: reconsideration of benefit]:

§ Lord Rooker
moved Amendment No. 120B: Page 67, line 12, at end insert— (aa) there is evidence which was not available to the prosecutor at the relevant time, 39 The noble Lord said: This group of government amendments deals with the ability of the prosecutor to return to court within six years of the accused's conviction for an increase in the confiscation order or a new confiscation order where none was made at time of the original trial. They mirror the amendments that we have already made to Part 2 of the Bill.
The amendments have three purposes. First, under Clauses 107 and 108, the prosecutor is allowed to apply to the court for a revaluation of the accused's benefit from crime only if he has new evidence. There is currently no requirement of this kind in Clause 109. In theory, an application could be made to the court on the basis of evidence held back in previous proceedings. The first purpose of the amendments is, therefore, to bring Clause 109 into line, so that the prosecutor will be able to apply only if there is new evidence.
Secondly, our intention has always been that more than one revaluation should be possible under Clause 109. In looking again at the reconsideration clauses, we doubt whether the wording of the clause currently achieves that intention. It appears to allow for only one application. We have accordingly taken the opportunity to make it quite clear that there may be more than one revaluation under Clause 109. We have also made changes to Clause 110 making it clear that more than one application can be made under Clause 110.
Finally, Clause 110 permits the prosecutor to apply to the court for an increase in the confiscation order where more realisable property comes to light.
Arguably, the clause does not allow such an application to be made where a confiscation order has been varied under Clause 109. We have taken the opportunity to put it beyond doubt that such applications are permissible.
These are fine-tuning amendments. However, I hope that they will send the same message to the criminal fraternity; namely, that we are coming after them for the proceeds of crime. They will certainly help to ensure that the Bill will operate in Scotland exactly as we would wish. I beg to move.

§ Baroness Buscombe
Has thought been given to the inclusion of the words, "even if he had made reasonable inquiries"? In other words, the prosecutor could not have known about the evidence in the first instance even if he had made reasonable inquiries. It seems that at present one can have a second bite of the cherry without having to demonstrate that one made an effort in the first place to discover whatever the evidence might be. Surely that cannot be the case unless an effort was made in the first instance.

§ Lord Hope of Craighead
Perhaps I may intervene in that connection. The noble Baroness's point matches a provision that allows an accused person to appeal on the ground of fresh evidence. That right to appeal is qualified by a provision which disables him from doing so if the evidence on which he seeks to rely was not available to him or was not reasonably available to him. That qualification has often proved to be 40 valuable in doing justice. So there is some force in the noble Baroness's point—namely, in achieving some kind of symmetry between the various provisions that operate in the various branches of the criminal law.

§ Lord Rooker
Before replying to those points, perhaps I may repeat the point I made earlier. Under Clauses 107 and 108, the prosecutor is allowed to apply to the court for a revaluation of the accused's benefit only if he, the prosecutor, has new evidence. As I said, in theory, he could apply to the court on the basis of evidence that had been held back in previous proceedings. I cannot envisage such circumstances, although I suppose that they must arise. The idea of holding evidence back in earlier proceedings in order to have a go at someone later sounds slightly weird.
The provision is subject to the court's discretion. So the court will not grant an application where it deems it to be inappropriate. It will be for the prosecutor to make the case to the court. It is not as though the prosecutor has carte blanche in this situation.
I re-emphasise the fact that the court will have the discretion. If it thinks it inappropriate for the prosecutor to return to make the case on the basis of new evidence, it will be up to the court to determine that, not the prosecutor.
On Question, amendment agreed to

§ Lord Rooker
moved Amendment 120C: Page 67, leave out line 15 and insert "relevant amount On Question, amendment agreed to.

§ [Amendment No. 121 not moved.]

§ Lord Rooker
moved Amendment No. 121A: Page 67, line 18, leave out "on which his belief is based On Question, amendment agreed to.

§ [Amendment No. 122 not moved.]

§ Lord Rooker
moved Amendment No. 122A: Page 67, line 40, leave out from first "the" to fourth "the" and insert "relevant amount On Question, amendment agreed to.

§ Lord Rooker
moved Amendment No. 122B: Page 68, line 20, at end insert— (10A) The relevant time is—

(a) when the court calculated the accused's benefit for the purposes of the confiscation order, if this section has not applied previously;

(b) when the court last calculated the accused's benefit in pursuance of this section, if this section has applied previously.

(10B) The relevant amount is—

(a) the amount found as the accused's benefit for the purposes of the confiscation order, if this section has not applied previously;

(b) the amount last found as the accused's benefit in pursuance of this section, if this section has applied previously."

On Question, amendment agreed to.

§ Clause 109, as amended, agreed to.

§ 5 p.m.

§ Clause 110 [Order made: reconsideration of available amount]:

§ Lord Rooker
moved Amendment No. 122C: Page 68, line 34, leave out from third "the" to fourth "the" on line 35 and insert "relevant amount On Question, amendment agreed to.

§ Lord Rooker
moved Amendments Nos. 122D and 122E: Page 68, line 39, leave out "(when the confiscation order was made) Page 69, line 8, at end insert— (7) The relevant amount is—

(a) the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b) the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(8) The amount found as the accused's benefit from the conduct concerned is—

(a) the amount so found when the confiscation order was made, or

(b) if one or more new calculations of the accused's benefit have been made under section 109 the amount found on the occasion of the last such calculation."

On Question, amendments agreed to.

§ Clause 110, as amended, agreed to.

§ Clauses 111 to 117 agreed to.

§ Clause 118 [Appeal by prosecutor]:

§ [Amendments Nos. 123 to 126 not moved.]

§ Clause 118 agreed to.

§ Clauses 119 to 121 agreed to.

§ Clause 122 [Conditions for exercise of powers]:

§ Lord Rooker
moved Amendment No. 126A: Page 76, line 23, leave out from first "the" to end of line 24 and insert "relevant amount (as defined in that section) On Question, amendment agreed to.

§ Lord Rooker
moved Amendment No. 126B: Page 76, line 31, leave out from first "the" to end of line 32 and insert "relevant amount (as defined in that section) On Question, amendment agreed to.

§ Clause 122, as amended, agreed to.

§ Clause 123 [Restraint orders etc]:

§ Lord Kingsland
moved Amendment No. 127: Page 77, line 15, at end insert— () to specified parts of the realisable property held by the specified person The noble Lord said: I beg to move Amendment No. 127, which I can do telegraphically. In considering what property would be affected by a restraint order, in our view due regard must be given to the principle of proportionality. In that respect, consideration should be given as to whether it is necessary to restrain all realisable property or only specified parts. This 42 amendment seeks to ensure that any action taken is compatible with the European Convention on Human Rights. I beg to move.

§ Lord Rooker
In response to the noble Lord's final point, I have every reason to believe that this provision is compatible with the European Convention on Human Rights. The certificate on the front of the Bill is not in any way qualified and thus makes a fairly hold statement. I received good advice that I could sign the paper which declared the Bill compatible and I am satisfied that that advice was sound.
The noble Lord has raised an important point. However, Clause 123(2)(a) provides that a restraint order can apply to all realisable property held by a specified person. This amendment seeks to provide that a restraint order need only apply to specified parts of the realisable property. We believe the amendment to be unnecessary. Clause 123(1) already makes it clear that not all the realisable property need be restrained. In other words, the court in exercising its discretion already has the power to order restraint against only specified parts of the realisable property. Given that, I invite the noble Lord to withdraw his amendment.

§ Lord Kingsland
So far as concerns opinions about compatibility with the European Convention on Human Rights, there are those that are certified and there are those that are certifiable. I cannot accept the view expressed by the noble Lord in the context of this amendment. I wish to test the opinion of the Committee.

§ 5.4 p.m.

§ On Question, Whether the said amendment (No. 127) shall be agreed to?

§ Their Lordships divided: Contents, 68; Not-Contents, 143.

Division No. 1
CONTENTS
Anelay of St Johns, B.	Geddes, L.
Astor of Hever, L.	Glentoran, L.
Biffen,L.	Goschen, V.
Blackwell, L.	Gray of Contin, L.
Boardman, L.	Hanham, B.
Brougham and Vaux, L.	Hayhoe, L.
Burnham, L.	Henley, L.
Buscombe, B.	Higgins, L.
Byford, B.	Howe, E.
Caithness, E.	Howe of Aberavon, L.
Carnegy of Lour, B.	Howell of Guildford,L.
Chadlington, L.	HuntofWirral,L.
Cope of Berkeley, L. [Teller]	Kimball,L.
Craig of Radley, L.	Kingsland, L.
Craigavon, V.	Kirkham, L.
Crickhowell, L.	Lucas, L.
Dean of Harptree, L.	McColl of Dulwich, L.
Denham, L.	Marlesford, L.
Dixon-Smith, L.	Marsh, L.
Elles, B.	Monson, L.
Elton, L.	Montrose, D.
Flather, B.	Mowbray and Stourton, L
Freeman, L.	Murton of Lindisfarne, L.
Gardner of Parkes, B.	Naseby, L.

Northesk, E.	Sheppard of Didgemere, L.
O'Cathain, B.	Stewartby, L.
Onslow, E.	Strathclyde, L.
Park of Monmouth, B.	Swinfen, L.
Pilkington of Oxenford, L.	Thatcher, B.
Prior, L.	Trumpington, B.
Rawlings, B.	Vinson, L.
Saatchi, L.	Vivian, L.
Seccombe, B. [Teller]	WadeofChorlton, L.
Selborne, E.	Young, B.
NOT-CONTENTS
Acton, L.	Hayman, B.
Addington, L.	Hilton of Eggardon, B.
Ahmed, L.	Hogg of Cumbernauld, L.
Allenby of Megiddo, V.	Hollis of Heigham, B.
Alli, L.	Howells of St. Davids, B.
Andrews, B.	Howie of Troon, L.
Archer of Sandwell, L.	Hoyle, L.
Ashton of Upholland, B.	Irvine of Lairg, L. (Lord Chancellor)
Bach,L.
Barker, B.	Janner of Braunstone, L.
Barnett, L.	Jay of Paddington, B.
Bassam of Brighton, L.	Jenkins of Hillhead, L.
Beaumont of Whitley, L.	Jenkins of Putney, L.
Berkeley, L.	Jones, L.
Billingham, B.	Jordan, L.
Blackstone, B.	Judd,L.
Boothroyd, B.	Layard, L.
Borrie, L.	LeaofCrondall,L.
Boston of Faversham, L.	Lipsey, L.
Brennan, L.	Livsey of Talgarth, L.
Brett, L.	Macdonald of Tradeston, L.
Brookman, L.	McIntosh of Haringey, L. [Teller]
Brooks of Tremorfa, L.
Burlison, L.	Mclntosh of Hudnall,B.
Carlile of Berriew, L.	MacKenzie of Culkein, L.
Carter, L. [Teller]	Mackenzie of Framwellgate, L
Chester, Bp.	McNally,L.
Christopher, L.	Maddock, B.
Clarke of Hampstead, L.	Mar and Kellie, E.
Clement-Jones, L.	Masham of Ilton.B.
Clinton-Davis, L.	Mason of Barnsley, L.
Cohen of Pimlico, B.	Massey of Darwen, B.
Currie of Marylebone, L.	Merlyn-Rees, L.
Dahrendorf, L.	Michie of Gallanach, B.
David, B.	Miller of Chilthome Domer, B
Davies of Coity,L.	Milner of Leeds, L.
Davies of Oldham, L.	Mitchell, L.
Dean of Thornton-le-Fylde, B.	Morris of Aberavon, L.
Desai, L.	Morris of Manchester, L.
Dholakia, L.	Newby, L.
Dixon, L.	Northfield, L.
Dormand of Easington, L.	Orme, L.
Dubs, L.	Paul, L.
Evans of Parkside, L.	Pendry, L.
Farrington of Ribbleton, B.	Peston, L.
Filkin,L.	Pitkeathley, B.
Gale, B.	Prys-Davies, L.
Gavron, L.	Puttnam, L.
Gilbert, L.	Radice, L.
Gladwin of Clee, L.	Ramsay of Cartvale, B.
Goldsmith, L.	Razzall, L.
Goodhart, L.	Rea, L.
Gordon of Strathblane, L.	Rendell of Babergh, B.
Goudie, B.	Rennard, L.
Gould of Potternewton, B.	Richard, L.
Graham of Edmonton, L.	Rooker, L.
Gregson, L.	Roper, L.
Grenfell, L.	Russell, E.
Grocott, L.	Russell-Johnston, L.
Hardy of Wath, L.	St.John of Bletso, L.
Harrison, L.	Sandberg,L.
Haskel, L.	Sawyer, L.
Haskins, L.	Scotland of Asthal, B.

Scott of Needham Market, B.	Turner of Camden, B.
Sharp of Guildford.B.	Walmsley, B.
Sheldon, L.	Warner, L.
Shutt of Greetland,L.	Warwick of Underclifle, B.
Simon, V.	Whitty, L.
Smith of Clifton, L.	Wilkins, B.
Symons of Vernham Dean, B.	Williams of Elvel, L.
Taylor of Blackburn, L.	Williams of Mostyn, L. (Lord Privy Seat)
Tenby, V.
Thomas of Walliswood, B.	Woolmer of Leeds, L.

§ Resolved in the negative, and amendment disagreed to accordingly.

§ 5.15 p.m.

§ [Amendments Nos. 128 to 130 not moved.]

§ Clause 123 agreed to.

§ Clauses 124 to 130 agreed to.

§ Clause 131 [Enforcement administrators]:

§ Baroness Buscombe
moved Amendment No. 131: Page 82, line 6, at end insert "and in so doing, to appear before it The noble Baroness said: I shall be brief. This amendment is similar in principle to previous amendments. It would ensure that those persons likely to be affected by an enforcement order under Clause 131 would have an opportunity to appear before the court to make representations.
We have been in consultation with the Law Society of Scotland, which welcomes, as we do, the express provision in the Bill to enable third parties who are likely to be affected by orders of the court to make representations to the court. We feel that it should be clear from the Bill that such parties can appear before the court to make those representations. The aim of the amendment is to ensure that those who will be affected by the actions of an administrator under Clause 131 will have such a right. I beg to move.

§ Lord Rooker
I can be equally brief, because the answer is virtually the same as on the previous amendment. The amendment would not add anything to the clause. Subsection (11) provides that before giving an enforcement administrator the power to manage or realise any realisable property, or before ordering a person to make payments to the administrator, the court must give persons who have an interest in the property an opportunity to make representations to it. The aim of the amendment is to give such persons a right to appear before the court.
However, in practice, any person who may be affected by an action of the court in that regard is entitled to appear before the court and make out their case. This is a well-established procedure in Scotland and is endorsed by the courts. The amendment would not afford third parties any greater rights than are already afforded to them under subsection (11). The question is the same, legitimately asked, and the answer is the same. I therefore hope that the noble Baroness will withdraw the amendment.

§ Baroness Buscombe
I thank the Minister for his full reply, which I accept entirely. I beg leave to withdraw the amendment.
45 Amendment, by leave, withdrawn.

§ Clause 131 agreed to.

§ Clauses 132 to 140 agreed to.

§ Schedule 2 agreed to.

§ Clause 141 agreed to.

§ Clause 142 [Serious default]:

§ [Amendments Nos. 132 and 133 not moved.]

§ Clause 142 agreed to.

§ Clause 143 [Confiscation order varied or discharged]:

§ [Amendment No. 134 not moved.]

§ Clause 143 agreed to.

§ Clause 144 agreed to.

§ Clause 145 [Criminal lifestyle]:

§ [Amendment No. 135 not moved.]

§ Lord Rooker
moved Amendment No. 135A: Page 89, line 9, leave out paragraphs (a) to (c) and insert— (a) it is specified in Schedule (Lifestyle offences: Scotland); The noble Lord said: In moving Amendment No. 135A, I shall speak also to the other amendments in the group.
These amendments mirror similar amendments that have already been discussed in relation to Part 2 of the Bill. The new Scottish and Northern Ireland schedules determine which single offences will attract a criminal lifestyle and, as a consequence, the application of the assumptions in Clauses 99 or 166 of the Bill. The various offences set out in the Scottish and Northern Ireland schedules correspond to those set out for England and Wales in the schedule we have already debated.
I am quite happy to give a more detailed explanation of the individual amendments but, given my brief explanation of what these amendments seek to do and bearing in mind what has already been done in other parts of the Bill, I hope that they will meet with the Committee's approval.

§ The Earl of Mar and Kellie
We certainly approve of the schedule proposed in Amendment No. 140A because of the clarity it will bring to the legislation in describing "criminal lifestyle".
On Question, amendment agreed to.

§ [Amendments Nos. 136 to 139 not moved.]

§ Lord Rooker
moved Amendment No. 139A: Page 89, line 23, at end insert— (3) The Scottish Ministers may by order amend Schedule (Lifestyle offences: Scotland). On Question, amendment agreed to.

§ [Amendment No. 140 not moved.]

§ Clause 145, as amended, agreed to.

§ Lord Rooker
moved Amendment No. 140A: Before Schedule 3, insert the following new schedule—

§ "LIFESTYLE OFFENCES: SCOTLAND

§ Money laundering 1 An offence under either of the following provisions of this Act—

(a) section 327 (concealing etc. criminal property);
(b) section 328 (assisting another person to retain criminal property).

§ Drug trafficking (2). An offence under any of the following provisions of the Misuse of Drugs Act 1971 (c. 38)—

(a) section 4(2) or (3) (unlawful production or supply of controlled drugs);
(b) section 5(3) (possession of controlled drug with intent to supply);
(c) section 8 (permitting certain activities relating to controlled drugs);
(d) section 20 (assisting in or inducing the commission outside the UK of an offence punishable under a corresponding law).

(2) An offence under any of the following provisions of the Customs and Excise Management Act 1979 (c. 2) if it is committed in connection with a prohibition or restriction on importation or exportation which has effect by virtue of section 3 of the Misuse of Drugs Act 1971 (c. 38)—

(a) section 50(2) or (3) (improper importation of goods);
(b) section 68(2) (exploration of prohibited or restricted goods);
(c) section 170 (fraudulent evasion).

(3) An offence under either of the following provisions of the Criminal Justice (International Co-operation) Act 1990 (c. 5)—

(a) section 12 (manufacture or supply of a substance for the time being specified in Schedule 2 to that Act);
(b) section 19 (using a ship for illicit traffic in controlled drugs).

§ People trafficking 3 An offence under section 25(1) of the Immigration Act 1971 (c. 77) (assisting illegal entry etc).

§ Arms trafficking 4 (1) An offence under either of the following provisions of the Customs and Excise Management Act 1979 (c. 2) if it is committed in connection with a firearm or ammunition—

(a) section 68(2) (exportation of prohibited goods);
(b) section 170 (fraudulent evasion).

(2) An offence under section 3(1) of the Firearms Act 1968 (c. 27) (dealing in firearms or ammunition by way of trade or business). (3) In this paragraph "firearm" and "ammunition" have the same meanings as in section 57 of the Firearms Act 1968 (c. 27).

§ Conterfeiting 5 An offence under any of the following provisions of the Forgery and Counterfeiting Act 1981 (c. 45)—

(a) section 14 (making counterfeit notes of coins);
(b) section 15 (passing etc counterfeit notes or coins);
(c) section 16 (having counterfeit notes or coins):
(d) section 17 (making or possessing materials or equipment for counterfeiting).

§ Intellectual property 6 (1) An offence under any of the following provisions of the Copyright, Designs and Patents Act 1988 (c. 48)—

(a) section 107(1) (making or dealing in an article which infringes copyright);
(b) section 107(2) (making or possessing an article designed or adapted for making a copy of a copyright work);
(c) section 198(1) (making or dealing in an illicit recording);
(d) section 297A (making or dealing in unauthorised decoders).

(2) An offence under section 92(1), (2), or (3) of the Trade Marks Act 1994 (c. 26) (unauthorised use etc of trade mark).

§ Pimps and Brothels 7 An offence under either of the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)—

(a) section 11(1) (living on earnings of prostitution or soliciting for immoral purposes);
(b) section 11(5) (running of brothels).

§ Blackmail 8 An offence of blackmail or extortion.

§ Inchoate offences 9 (1) An offence of conspiring or inciting the commission of an offence specified in this Schedule. (2) An offence of aiding, abetting, counselling or procuring the commission of such an offence.

§ On Question, amendment agreed to.

§ Schedule 3 agreed to.

§ Clause 146 agreed to.

§ Clause 147 [Tainted gifts and their recipients]:

§ [Amendment No. 141 not moved.]

§ Clause 147 agreed to.

§ Clauses 148 to 152 agreed to.

§ Clause 153 [Property: general provisions]:

§ [Amendments Nos. 142 and 143 not moved.]

§ Clause 153 agreed to.

§ Clauses 154 to 156 agreed to.

§ Clauses 157 and 158 negatived.

§ Clauses 159 and 160 agreed to.

§ Clause 161 [Making of order]:

§ [Amendments Nos. 144 to 147 not moved.]

§ Clause 161 agreed to.

§ [Amendment No. 148 not moved.]

§ Clause 162 negatived.

§ Clause 163 [Recoverable amount]:

§ [Amendment No. 149 not moved.]

§ Clause 163 agreed to.

§ Clauses 164 and 165 agreed to.

§ [Amendment No. 150 not moved.]

§ Clause 166 [Assumptions to be made in case of criminal lifestyle]:

§ [Amendments Nos. 151 to 153 not moved.]

§ Clause 166 agreed to.

§ Clauses 167 to 169 agreed to.

§ Clause 170 [Postponement]:

§ Lord Rooker
moved Amendment No. 154: Page 100, line 29, leave out subsection (1) and insert— (1) The court may—

(a) proceed under section 161 before it sentences the defendant for the offence (or any of the offences) concerned, or

(b) postpone proceedings under section 161 for a specified period.

(1A) A period of postponement may be extended.

§ On Question, amendment agreed to.

§ Clause 170, as amended, agreed to.

§ Clause 171 [Effect of postponement]:

§ [Amendment No. 155 not moved.]

§ Lord Rooker
moved Amendment No. 156: Page 102, line 3, leave out paragraph (b). On Question, amendment agreed to.

§ Clause 171, as amended, agreed to.

§ Clause 172 [Statement of information]:

§ [Amendments Nos. 157 to 159 not moved.]

§ Clause 172 agreed to.

§ Clause 173 agreed to.

§ Clause 174 [Provision of information by defendant]:

§ [Amendment No. 160 not moved.]

§ Clause 174 agreed to.

§ Clause 175 [No order made: reconsideration of case]:

§ Lord Rooker
moved Amendment No. 161: Page 104, line 21, leave out paragraph (b). On Question, amendment agreed to.

§ Clause 175, as amended, agreed to.

§ Clause 176 [No order made: reconsideration of benefit]:

§ [Amendments Nos. 162 and 163 not moved.]

§ Lord Rooker
moved Amendment No. 164: Page 106, line 18, leave out paragraph (b). On Question, amendment agreed to.

§ Clause 176, as amended, agreed to.

§ Clause 177 [Order made: reconsideration of benefit]:

§ Lord Rooker
moved Amendments Nos. 165 to 167: Page 107, line 10, at end insert— (aa) there is evidence which was not available to the prosecutor or the Director at the relevant time, Page 107, line 13, leave out from first "the" to end of line and insert "relevant amount Page 107, line 16, leave out "on which his belief is based On Question, amendments agreed to.

§ [Amendment No. 168 not moved.]

§ Lord Rooker
moved Amendment No. 169: Page 107, line 42, leave out from first "the" to end of line 43 and insert "relevant amount The noble Lord said: I beg to move.

§ The Deputy Chairman of Committees (Viscount Allenby of Megiddo)
I must inform the Committee that there is a mistake in the Marshalled List. Amendment No. 169 should read as follows: Page 107, line 42, leave out from 'the' to 'the' in line 43 and insert 'relevant amount' On Question, amendment agreed to.

§ Lord Rooker
moved Amendment No. 170: Page 108, line 25, at end insert— (11A) The relevant time is—

(a) when the court calculated the defendant's benefit for the purposes of the confiscation order, if this section has not applied previously;

(b) when the court last calculated the defendant's benefit in pursuance of this section, if this section has applied previously.

(11B) The relevant amount is—

(a) the amount found as the defendant's benefit for the purposes of the confiscation order, if this section has not applied previously;

(b) the amount last found as the defendant's benefit in pursuance of this section, if this section has applied previously."

On Question, amendment agreed to.

§ Clause 177, as amended, agreed to.

§ Clause 178 [Order made: reconsideration of available amount]:

§ Lord Rooker
moved Amendments Nos. 171 to 173: Page 108, line 43, leave out from third "the" to fourth "the" in line 44 and insert "relevant amount Page 109, line 2, leave out "(when the confiscation order was made) Page 109, line 18, at end insert— (7A) The relevant amount is—

(a) the amount found as the available amount for the purposes of the confiscation order, if this section has not applied previously;

(b) the amount last found as the available amount in pursuance of this section, if this section has applied previously.

(7B) The amount found as the defendant's benefit from the conduct concerned is—

(a) the amount so found when the confiscation order was made, or

(b) if one or more new calculations of the defendant's benefit have been made under section 177 the amount found on the occasion of the last such calculation."

On Question, amendments agreed to.

§ Clause 178, as amended, agreed to.

§ Clauses 179 to 182 agreed to.

§ Clause 183 [Defendant convicted or committed]:

§ [Amendment No. 174 not moved.]

§ Clause 183 agreed to.

§ Clause 184 [Defendant neither convicted nor acquitted]:

§ [Amendment No. 175 not moved.]

§ Clause 184 agreed to.

§ Clauses 185 and 186 agreed to.

§ Clause 187 [Appeal by prosecutor or Director]:

§ [Amendments Nos. 176 and 177 not moved.]

§ Clause 187 agreed to.

§ Clause 188 [Court's powers on appeal]:

§ Lord Rooker
moved Amendment. No. 178: Page 114, line 30, leave out paragraph (b). On Question, amendment agreed to.

§ Clause 188, as amended, agreed to.

§ Clause 189 [Appeal to House of Lords]:

§ Lord Rooker
moved Amendment No. 179: Page 115, line 44, leave out paragraph (b). On Question, amendment agreed to.

§ Clause 189, as amended, agreed to.

§ Clauses 190 to 194 agreed to.

§ Clause 195 [Conditions for exercise of powers]:

§ Lord Rooker
moved Amendments Nos. 180 and 181: Page 119, line 38, leave out from first "the" to end of line 39 and insert "relevant amount (as defined in that section) Page 120, line 1, leave out from first "the" to end of line 2 and insert "relevant amount (as defined in that section) On Question, amendments agreed to.
Clause 195, as amended, agreed to.

§ Clause 196 [Restraint orders]:

§ [Amendments Nos. 182 to 184 not moved.]

§ Clause 196 agreed to.

§ Clauses 197 to 211 agreed to.

§ Clause 212 [Restraint orders]:

§ Lord Bassam of Brighton
moved Amendment No. 185: Page 131, line 4, leave out from "appointed" to end of line 5 and insert "in respect of the property under section 202, 204 or 206 The noble Lord said: This is a purely technical amendment which brings the wording of Clause 212(5) into line with that of Clause 58(6). I beg to move.
On Question, amendment agreed to.

§ Clause 212, as amended, agreed to.

§ Clauses 213 to 221 agreed to.

§ Clause 222 [Applications and appeals]:

§ Lord Rooker
moved Amendments Nos. 186 to 189: Page 135, line 23, leave out "is authorised to do so by" and insert "falls within subsection (2A). (2A) An accredited financial investigator falls within this subsection if he is one of the following or is authorised for the purposes of this section by one of the following— Page 135, line 26, leave out "or Page 135, line 33, leave out "is authorised as mentioned in subsection (2)" and insert "falls within subsection (2A) Page 135, line 41, leave out "is authorised as mentioned in subsection (2)" and insert "falls within subsection (2A) On Question, amendments agreed to.

§ Clause 222, as amended, agreed to.

§ Clause 223 agreed to.

§ Clause 224 [Committal by magistrates' court]:

§ [Amendment No. 190 not moved.]

§ Clause 224 agreed to.

§ Clause 225 agreed to.

§ Clause 226 [Serious default]:

§ [Amendments Nos. 191 and 192 not moved.]

§ Clause 226 agreed to.

§ Clause 227 [Order varied or discharged]:

§ [Amendment No. 193 not moved.]

§ Clause 227 agreed to.

§ Clause 228 agreed to.

§ Clause 229 [Criminal lifestyle]:

§ [Amendment No. 194 not moved.]

§ Lord Rooker
moved Amendment No. 194A: Page 139, line 34, leave out paragraphs (a) to (c) and insert— (a) it is specified in Schedule (Lifestyle offences: Northern Ireland); On Question, amendment agreed to.

§ [Amendments Nos. 195 to 199 not moved.]

§ Lord Rooker
moved Amendment No. 199A: Page 140, line 4, at end insert— (4) The Secretary of State may by order amend Schedule (Lifestyle offences: Northern Ireland). On Question, amendment agreed to.

§ [Amendment No. 200 not moved.]

§ Clause 229, as amended, agreed to.

§ Lord Rooker
moved Amendment No. 200A: Before Schedule 3, insert the following new schedule—

§ "LIFESTYLE OFFENCES: NORTHERN IRELAND

§ Drug trafficking 1 (1) An offence under any of the following provisions of the Misuse of Drugs Act 1971 (c. 38)—

(a) section 4(2) or (3) (unlawful production or supply of controlled drugs);
(b) section 5(3) (possession of controlled drug with intent to supply);
(c) section 8 (permitting certain activities relating to controlled drugs);
(d) section 20 (assisting in or inducing the commission outside the UK of an offence punishable under a corresponding law).

(a) section 50(2) or (3) (improper importation of goods);
(b) section 68(2) (exportation of prohibited or restricted goods);
(c) section 170 (fraudulent evasion).

(3) An offence under either of the following provisions of the Criminal Justice (International Co-operation) Act 1990 (c. 5)—

(a) section 12 (manufacture or supply of a substance for the time being specified in Schedule 2 to that Act);
(b) section 19 (using a ship for illicit traffic in controlled drugs).

§ Money laundering 2 An offence under either of the following provisions of this Act—

(a) section 327 (concealing etc. criminal property);
(b) section 328 (assisting another to retain criminal property).

§ People trafficking 3 An offence under section 25(1) of the Immigration Act 1971 (c. 77) (assisting illegal entry etc.).

§ Arms trafficking 4 (1) An offence under either of the following provisions of the Customs and Excise Management Act 1979 (c. 2) if it is committed in connection with a firearm or ammunition—

(a) section 68(2) (exportation of prohibited goods);
(b) section 170 (fraudulent evasion).

(2) An offence under Article 4(1) of the Firearms (Northern Ireland) Order 1981 (S.I. 1981/155 (N.I. 2) (dealing in firearms or ammunition by way of trade or business). (3) In this paragraph "firearm" and "ammunition" have the same meanings as in Article 2(2) of that Order.

§ Counterfeiting 5 An offence under any of the following provisions of the Forgery and Counterfeiting Act 1981 (c. 45)—

(a) section 14 (making counterfeit notes or coins);
(b) section 15 (passing etc counterfeit notes or coins);
(c) section 16 (having counterfeit notes or coins);
(d) section 17 (making or possessing materials or equipment for counterfeiting).

§ Intellectual property 6 (1) An offence under any of the following provisions of the Copyright, Designs and Patents Act 1988 (c. 48)—

(a) section 107(1) (making or dealing in an article which infringes copyright);
(b) section 107(2) (making or possessing an article designed or adapted for making a copy of a copyright work);
(c) section 198(1) (making or dealing in an illicit recording);
(d) section 297A (making or dealing in unauthorised decoders).

(2) An offence under section 92(1), (2) or (3) of the Trade Marks Act 1994 (c. 26) (unauthorised use etc of trade mark).

§ Pimps and brothels 7 (1) An offence under any of the following provisions of the Criminal Law Amendment Act 1885 (c. 69)—

(a) section 2 (procuring a woman or girl);
(b) section 3 (procuring a woman or girl by threats or false pretences);
(c) section 8 (detaining a woman in a brothel);
(d) section 13(3) (letting premises for use as a brothel).

(2) An offence under section 1(1) of the Vagrancy Act 1898 (c. 39) (man living on the earnings of prostitution). (3) An offence under that Act as extended by section 7(4) of the Criminal Law Amendment Act 1912 (c. 20) (woman exercising control over prostitute). (4) An offence under section 21 of the Children and Young Persons Act (Northern Ireland) 1968 (c. 34) (causing or encouraging prostitution etc of girl under 17). (5) An offence under Article 8 of the Homosexual Offences (Northern Ireland) Order 1982 (S.I. 1982/1536 (N.I. 19)) (living on the earnings of male prostitute). 53 (6) An offence under Article 122(1)(b) or (c) of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (procuring or causing prostitution by woman suffering from severe mental handicap). (7) An offence of keeping a bawdy house.

§ Blackmail 8 An offence under section 20 of the Theft Act (Northern Ireland) 1969 (c. 16) (blackmail).

§ Inchoate offences 9 (1) An offence of attempting, conspiring or inciting the commission of an offence specified in this Schedule. (2) An offence of aiding, abetting, counselling or procuring the commission of such an offence.

§ On Question, amendment agreed to.

§ Clauses 230 and 231 agreed to.

§ Clause 232 [Gifts and their recipients]:

§ [Amendment No. 201 not moved.]

§ Clause 232 agreed to.

§ Clauses 233 to 237 agreed to.

§ Clause 238 [Property: general provisions]:

§ [Amendments Nos. 202 and 203 not moved.]

§ Clause 238 agreed to.

§ Clauses 239 to 241 agreed to.

§ Clause 242 and 243 negatived.

§ Clauses 244 to 247 agreed to.

§ Clause 248 [General purpose of this Part]:

§ 5.45 p.m.

§ Lord Goodhart
moved Amendment No. 204: Page 147, line 32, leave out from "proceedings" to end of line 33. The noble Lord said: I had to watch myself carefully to make sure that I did not say "not moved" on this occasion. This amendment is a landmark for two reasons. First, it is the first occasion for what seems to me about an hour and a half—it must seem a good deal longer than that to the Deputy Chairmen of Committees—on which we are having a substantive debate on an amendment. Secondly, and rather more importantly, this is the first occasion on which we are debating an amendment to Part 5. Part 5 is a highly important part of the Bill which, unlike Parts 2, 3 and 4, is not foreshadowed by existing legislation.
In moving Amendment No. 204, I wish to speak also to Amendments Nos. 224A, 233 to 236, 237 to 251, 252, 253 and 254 which are grouped with it. The purpose of this group of amendments is to ensure that there is a single mechanism for the recovery of property which is obtained by unlawful conduct. Under the Bill there are two entirely different procedures. One applies to property other than cash, or property which includes cash but does not consist solely of cash, in which forfeiture will take place via a recovery order in the High Court or the Court of Session. The second kind of procedure applies where the property which is to be forfeited consists solely of cash. In such a case forfeiture will take place by means of an order made in England, Wales and Northern Ireland by a magistrates' court or in Scotland by a sheriff.
54 There seems to me no logic in having those two separate procedures. Under the present law there is power in some cases relating to money which is suspected of being used in drug or terrorist offences to seize and forfeit cash. But there is no power—until this Bill comes into force—to make a civil recovery order in the High Court or the Court of Session. It seems to me that once the High Court or the Court of Session has been given power to make a recovery order that power should apply to all recoverable property. It seems to me that to make a forfeiture order of this kind is not appropriate for magistrates although I recognise that at present in certain circumstances that can be done.
The forfeiture orders will apply to large sums of money. As I understand it, the Government are likely to make regulations which will ensure that forfeiture orders are not sought for cash sums of less than £10,000. Difficult issues may arise. I think that all of us would agree that this is not by any means an easy Bill; it is an extremely lengthy and complicated one. I believe that it will raise issues which are better dealt with by a higher court than the magistrates' court. The High Court or the Court of Session will have the necessary expertise.
I accept that a power to order the seizure of cash, as opposed to its ultimate forfeiture, can properly be left with justices of the peace. An order for seizure is not a final order. I accept fully that speed is of the essence and that it may be quicker to get a seizure order from a justice of the peace than to seek an order from the High Court. However, I believe that forfeiture of cash should be dealt with by the same method as forfeiture of other assets. I can see no possible logical distinction for forfeiting cash by one method and forfeiting, let us say, the contents of a bank account by another method. If the High Court order is the right method of forfeiting money which is sitting in a bank account, it seems to me that it is still the right method if the respondent takes the cash out of the bank account in £50 notes. For the purpose of achieving a logical and simple system I believe that it would be very much preferable to have a consistent procedure that applies to all forfeiture in civil actions. I beg to move.

§ The Attorney-General (Lord Goldsmith)
Before discussing the detail of the amendments, I want to make a general point about what we are trying to achieve in the Bill, particularly because this is the first amendment relating to Part 5, as the noble Lord, Lord Goodhart, said. We are trying to remove the proceeds of unlawful conduct from circulation. As has been said in this place previously, we want to make it clearer than ever that crime does not pay. In order to ensure that, it is necessary for us to use ends that are fair and effective.
The civil recovery scheme is a new proceeding to recover properties of all kinds other than cash that are found by the police or Customs and Excise. However, the cash forfeiture scheme in Chapter 3 is a development of a scheme that has been successfully 55 operating for more than 10 years. That is an important consideration in relation to the venue for those proceedings.
The existing cash seizure, detention and forfeiture proceedings—that is, all stages of the process—under the Drug Trafficking Act 1994, which was previously the Criminal Justice (International Co-operation) Act 1990, take place before the magistrates' court. The venue for the scheme for terrorist cash—the provisions were recently introduced in the Anti-Terrorism, Crime and Security Act 2001—is the same; that is, the magistrates' court.
Magistrates are therefore familiar with the concepts that are involved in cash forfeiture proceedings and have shown themselves able to deal with those concepts to good effect. Just over £3 million was forfeited in 2000–01 under the drugs legislation, which demonstrates that the scheme is successful in practice.
The cash forfeiture element of this part of the Bill is simply an extension of and replacement for the existing Drug Trafficking Act scheme. As I said, that scheme uses the magistrates' court for all parts of the process, and it has done so successfully. We therefore do not agree that there is any reason to alter such a fundamental part of the existing scheme in relation to court venue and cash forfeiture.
I turn to the objections to the amendment and our reasons for opposing it and those amendments that are grouped with it. First, experience has shown, and it is to be expected, that arguments in the magistrates' court in relation to the cash forfeiture scheme will be narrower than those in relation to the new civil proceedings involving other types of property. They are likely to be narrowed to the derivation or destination of the cash; that is, to whether or not that fits the definition of recoverable property. The Government believe, and experience bears out, that the magistrates' court is an appropriate level for such considerations and proceedings. It is expected, therefore, that the cash forfeiture schemes will be quick and simple and that there will be little room for complex arguments. Having different venues for civil recovery, where the issues are likely to be more complex, and cash forfeiture, where they are likely to be more straightforward, seems appropriate. It is not the case, as the noble Lord suggested, that that arrangement is illogical; it appears to us to be logical.
Property law, for example, which can arise under the civil recovery scheme in relation to real property or other forms of property, can be very complex. The Government's view is that those potential complexities, including, for example, the position of interests in property mortgages or tenants, make it appropriate for the High Court. However, cash does not raise the same complex issues and it is appropriate to retain the arrangement in the magistrates' court.
There are also practical considerations that add further weight to the decision to keep cash forfeiture in the magistrates' court. If the amendments were agreed to, the higher courts would be unduly occupied by a potentially large number of inappropriate cases. That 56 would result in delays in listing cases and case costs would soar. That is not desirable in terms of making the legislation effective and it will not be in the interests of those who will be affected by it.
There are, of course, important protections. The most important protection that I should mention at this stage is that a decision by the magistrates' court is subject to an appeal to a higher court—to the Crown Court in England and Wales. I emphasise that that appeal involves a rehearing, so that the issues can be ventilated again; the matter is not limited in some way simply to a point of law. The limited number of matters to be decided and the safeguards that are provided in the scheme justify, in our view, the decision to keep cash forfeiture proceedings in the magistrates' court. That deals with Amendments Nos. 204 and 233 to 254.
I turn to Amendment No. 224A, which is also in this group of amendments. Clause 285 provides for certain exemptions from civil recovery proceedings. Subsection (4) establishes that civil recovery proceedings may be taken only if they involve property other than cash that is held by the same person. Proceedings involving cash alone—in effect, where cash is identified and seized by the police or Customs and Excise in the circumstances that are provided for in Chapter 3—are to be brought under the cash forfeiture proceedings.
Subsection (4) is intended to avoid confusion about which scheme applies to cash that is found within the United Kingdom that is alleged to be recoverable property. The amendment raises the possibility of confusion and could lead to inconsistency in relation to the way in which cash alone is treated—sometimes it would be dealt with under Chapter 2 through proceedings in the High Court and sometimes it would be dealt with under Chapter 3 through proceedings in the magistrates' court.
Chapter 3 has been designed specifically for cash alone. It has provisions in relation to the continued detention of cash—for example, as Members of the Committee will have seen, in relation to placing the moneys in an interest-bearing account. Those features are specific to cash and do not appear in Chapter 2.
Those features reflect the fact that we have established procedures for dealing with cash that is found by law enforcement officers that are effective, as they have previously proved to be, and which can have quick results. In those circumstances, the Government's view is that it would be wrong to confuse the situation, as Amendment No. 224A would do. In other words, we should continue to make it clear that cash forfeiture involving the police and Customs and Excise can be dealt with quickly and efficiently through established and tried methods in the magistrates' court. The civil process will be applied to more complex cases, which do not involve cash alone. Those are the reasons why I invite the noble Lord to withdraw the amendment.

§ Lord Hope of Craighead
I hope that the noble and learned Lord will deal with one or two points that are 57 of particular interest north of' the Border. First, an appeal by way of rehearing, which, as he rightly said, is available in the case of an appeal from a magistrates' court, is not available in Scotland. If there is an appeal from the sheriff court to the Court of Session on appeal, that is not an appeal by way of rehearing. That line of reasoning does not carry the same weight in Scotland.
Secondly, there is a power given to sheriffs under general legislation to enable them to refer difficult cases to the Court of Session. Those cases will be heard at first instance in the Court of Session. So far as I can see, there is no provision in the Bill to enable the sheriff to operate that procedure if he felt that it was appropriate for the first hearing, on the facts, to take place in the Court of Session and not before him. Will the Government consider introducing that element of flexibility?
I am afraid that I remain completely unclear on my third point. What happens if one discovers in the repositories of the person involved—the person who is said to have been involved in unlawful conduct—that there is a combination of property and cash? Under the Scottish system, it would be for the same person—the Crown—to take the initiative and bring the proceedings. It would seem strange if it were necessary to bring proceedings at first instance in regard to property in one court and in regard to the cash element in another. If I am wrong about that, I should be relieved, but if I am right about it—if there is a possibility of having to bring parallel proceedings in two different courts at different levels—some element of flexibility would be wise, I respectfully suggest, to enable the sheriff to refer the matter to the Court of Session so that the whole matter could be dealt with in one process.

§ 6 p.m.

§ Lord Goldsmith
I suspect that the noble and learned Lord will forgive me if I say that the answers to some of his questions are not immediately obvious to me, given that they relate to the procedure in Scottish courts. Sadly, that is not within my knowledge or experience. I certainly want to consider what he said but perhaps I may deal, so far as I can, with the points that he raised.
In the course of dealing with the last of the amendments, I referred to Clause 285(4), which provides that: Proceedings for a recovery order may not be taken in respect of cash found at any place…unless the proceedings are also taken in respect of property other than cash which is property of the same person". The assumption underlying that clause may well be the answer to the third question that the noble and learned Lord raised. But, in relation to his first two questions, I shall have to seek his indulgence and come back to him.

§ Lord Goodhart
I hear what the noble and learned Lord the Attorney-General says, although I am not 58 fully convinced by it. In particular, it seems to me that, although some—probably only a few—magistrates may be familiar with this procedure, it is unlikely that a large proportion of them will be. I accept. of course, that this group of amendments relates entirely to procedure and does not affect the substance of the law. That being so, while I find the division illogical, it is not an issue on which, as a whole, I wish to press the Government much further.
However, I believe that there are a number of more limited issues which we should consider again. I am particularly interested in those raised by the noble and learned Lord, Lord Hope of Craighead, in relation to Scotland, where I, too, am very much at a disadvantage.
It seems to me, first, that there is in England. Wales and Northern Ireland at least a good ground for suggesting that there should be a right for the magistrates' court to say, "We think this is an unsuitable case for us to deal with", where it involves, as some cases will, complicated legal issues, such as property law, which can apply to cash as to other kinds of property. Indeed, in some cases, it may be appropriate to allow the enforcement authority to bring its proceedings again in the High Court if that authority believes that legally it is a difficult case. It might, for example, wish to have an authoritative decision which it could cite in other cases.
I am also somewhat concerned by the nature of the appeal, which at present is to the Crown Court. Again, it seems to me that, while the Crown Court will have experience of dealing with confiscation orders, the Government have maintained throughout that a civil recovery order under Part 5 is a civil action and not a criminal penalty. I believe that, even if the primary jurisdiction for cash forfeiture is left with the magistrates' court, an appeal should go to the High Court rather than to the Crown Court.
Those more limited issues are ones to which I may wish to return further at. subsequent stages. As I said, I do not believe that I am likely to come back in the very wide form in which my amendments are now set out. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Kingsland
moved Amendment No. 205: Page 147, line 36, at end insert— () No powers conferred by this Part are exercisable in relation to any property which is, or represents, property obtained through unlawful conduct prior to the coming into force of this Part. 59 The noble Lord said: I rise to move Amendment No. 205. Clause 316(3) provides the following: For the purpose of deciding whether or not property was recoverable at any time (including times before commencement), it is to be assumed that this Part was in force at that and any other relevant time". As a consequence of that provision, it is possible for a recovery order to be made with respect to a criminal offence committed before the commencement of the Bill. We believe that that is likely to be a breach of Article 7 of the European Convention on Human Rights. That article provides that: No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed". It is the last sentence that is relevant. That sentence prohibits a measure imposing a heavier penalty in respect of a criminal offence than the penalty applicable at the time the criminal offence was committed. If a recovery order is a penalty, then it is a plain breach of Article 7.
We believe that a recovery order is likely to be a penalty. There is no suggestion in the Bill that any property recovered is to be treated as compensation for the victims of the offence. If any property is recovered, it is to be sold and the proceeds paid into the Consolidated Fund. The defendant against whom a recovery order is made is plainly penalised and no compensation goes to the victim. I beg to move.

§ Lord Goodhart
I did not put my name to this amendment but I rise to support it. I entirely share the view of the noble Lord, Lord Kingsland, that there is a serious risk here that the civil recovery order under Part 5 could be held to be a criminal penalty for the purposes of the European Convention on Human Rights and, therefore, subject to the restriction on imposing punishments that were not available at the time that the crime was committed.
I appreciate that a superficially similar argument has been raised in respect of confiscation orders and that those have been held not to apply by the courts. However, the reason for that is, in so far as the confiscation order is a penalty, it is a penalty for the crime which leads to the confiscation order being made. Therefore, necessarily it can apply only to offences that are committed after the Bill comes into force. Although the money may be the product of earlier offences, the penalty is applied in respect of the offence for which the offender is brought to trial and convicted and for which a confiscation order is then applied.
That is not the case in relation to a civil recovery order under Part 5 because the only offence which is required is that which gave rise to the benefit. That offence may have occurred long before the Bill came into force. The Bill will give power for civil recovery orders to be made in respect of criminal benefits which 60 are obtained from unlawful conduct some time in the distant past, subject only to the 12-year limitation period.
That being so, it appears to us that the Government are sticking their necks out in assuming that they can properly do what they have done, which is to impose a recovery order in respect of benefits arising from crimes committed some time in the past, even if no crime has been committed subsequent to the enactment of this Bill. That point was considered by the Joint Committee on Human Rights. Although the committee did not come to a positive conclusion that it would be a breach of the European convention, plainly it was an issue about which it had concerns. I believe that the Government should ensure that their position is secure by accepting the amendment.

§ Lord Goldsmith
In resisting the amendment I want to distinguish between two important facts: one is the policy and the other is the law and the European convention. With great respect to both noble Lords, neither the noble Lord, Lord Kingsland, nor the noble Lord, Lord Goodhart, dealt with the policy. The Government's position is that they are dealing with a problem that is here and now; that at present there are people who have in their possession large sums of money that are the proceeds of crime committed by themselves or by others.
In late 1999 a survey was carried out by the Government of law enforcement agencies—the matter is public so I am able to refer to it—of how useful the civil recovery mechanism would be. The answer of the law enforcement agencies was that, according to their information, there was about £440 million held by some 400 individuals which they believed was suspect. They may be wrong about that, but that is an indication of the size of the problem.
This amendment proposes that the civil recovery process should be enacted, but that it should not be allowed to bite except on the proceeds of property acquired as a result of someone's criminal conduct after the Bill has been enacted. That means that it could not touch any of the moneys to which I have referred. If the analysis of the noble Lord, Lord Goodhart, is right, it probably could not touch even the further profits of moneys which have been taken as a result of crime and which are invested in some way that is not itself criminal but which will swell the proceeds.
I suggest that the policy question is a straightforward one. If, after the passing of the Act, it can be proved to the satisfaction of a court—it must be proved to a court—that property being held by an individual is the proceeds of crime—it may be the proceeds of drug trafficking or money laundering or racketeering or serious crime—should that individual have any right to continue to hold on to it? The Government's view is that such a person should have no right to continue to hold those proceeds. He should never have had them in the first place and he should not be allowed to hold them now. The policy argument is quite straightforward: should property that can be 61 demonstrated to be the proceeds of crime be allowed to remain untouched in the hands of people who hold it at present?
The Government have not gone so far as to say that there should be no time limit. By analogy with civil proceedings, as is apparent from Clause 290, there will be a time limit of 12 years in relation to property. So the position is not unlimited, but by analogy with civil proceedings there would be a limitation period. No doubt one could say, parenthetically, that the older the case, the more difficult it may be to establish to the satisfaction of the court that certain property is the proceeds of crime. That is an evidential matter.
Further, an important element of the policy and of the law is that there is no retrospective definition of unlawful conduct. In other words, when considering whether property is the proceeds of a crime, the conduct considered by the court will be conduct that must have been illegal and criminal at the time. We are not trying to re-invent crimes retrospectively. It could be drug trafficking, organised crime or something that was at the time undoubtedly a crime.
For those policy reasons and having considered the matter carefully, the Government's view is that it is right that there should be some limitation, but that the limitation should be as for civil proceedings—12 years. They also believe that it is right that the Act should bite now and not have a limited effect so that it operates only in relation to future conduct.
The second matter is that of law. It has been asserted by both noble Lords that by reason of Article 7 of the European convention this attempt by the Government will not be effective. As noble Lords know—this point has arisen before—the Government take the view that such proceedings are not caught by Article 7 because they are in the nature of civil proceedings and not criminal proceedings. They are not in the nature of proceedings for a penalty; they are in the nature of civil proceedings.
I hope that the noble Lord, Lord Goodhart, will not mind my picking him up for saying that the Government are wrong in assuming that. The Government are not assuming anything; they have considered the position. I am sure that the noble Lord did not intend to suggest otherwise by his choice of language. I am grateful to him for confirming that with a nod of his head.
The Joint Committee on Human Rights, as the noble Lord said, did not reach a conclusion. It said—I hope I summarise accurately—that it did not find the case law conclusive either way. I entirely accept that it looked at that issue and rightly so because it is an important one. However, based on a series of cases of the European Court in Strasbourg, of the Privy Council, and of the House of Lords, to which I have referred previously in Committee and at Second Reading—although the cases before the House of Lords and the Privy Council are not exactly in point—the Government's view is that they point strongly to the conclusion that such proceedings are civil and not criminal.
62 If that is right, the argument based on Article 7 of the convention falls away. If the Government are wrong, no doubt the courts will hold that. It is said that the Government may be taking a risk. Where there may be legal uncertainty, the Government may be doing that, but they are not doing so as a result of an assumption, but having carefully considered the position and in the belief that the policy rule is right. For those reasons I hope that the noble Lords will grapple with the policy consideration. I invite the noble Lord, Lord Kingsland, to withdraw his amendment.

§ 6.15 p.m.

§ Lord Kingsland
I thank the noble and learned Lord for his full response to my amendment and to the intervention of the noble Lord, Lord Goodhart. We are sympathetic to the Government's policy. We accept that it is wrong that in certain circumstances those who have made ill-gotten gains from a particular criminal activity before the Bill becomes an Act should be entitled to hang on to those gains. We accept that as a policy.
The difficulty that the Government face is that, by their own initiative, the European Convention on Human Rights has been incorporated into English law. The view that the noble Lord. Lord Goodhart, and I take, and, I suspect, also the noble and learned Lord, Lord Lloyd of Berwick, is that, at least on the balance of probabilities, it is more likely than not that this part of the Bill breaches Articles 6 and 7 of the European convention.
Of course, it is true that under the 199'7 Act, the Judicial Committee of your Lordships' House is not bound by decisions of the court in Strasbourg. It is also true—in recent history illustrated by the case of Liversidge v Anderson—that the Judicial Committee has, from time to time in times of crisis, been influenced by policy matters when applying the law. I am not saying, of course, that if this issue comes to be considered by the Judicial Committee of your Lordships' House, it is certain that that committee will adopt the noble and learned Lord's interpretation rather than mine.

§ Lord Goldsmith
I am grateful to the noble Lord for giving way. I noted his reference to policy and its effect on the judicial mind. Will he accept that it is no part of my argument that the law would be stretched, strained or twisted? The Government's view is that, on the existing case law, to be found in a number of cases, proceedings which confiscate property constitute civil proceedings and that will be the outcome by an application of European law both in Strasbourg and in the courts of this country. Will the noble Lord, Lord Kingsland, accept that that is the reasoning behind my argument? Also, if he is sympathetic to the policy, will he accept that the Government ought to be allowed to make that proposition good by the Bill going ahead in its current form?

§ Lord Kingsland
I have already said to the Committee that I am sympathetic to the policy. 63 However, it is the Government's duty to balance whatever policy they wish to promote with the individual rights of the citizens of this country, and those rights have been enhanced by the Government as a result of the incorporation of the European Convention on Human Rights into our law.
The Government are under a duty in relation to this legislation, as in relation to all other legislation, to certify that each clause conforms with the European Convention on Human Rights. I accept that it is the noble and learned Lord's judgment that Part 5 does so conform. It is simply that, in my judgment, on a balance of probabilities and for the reasons that I have given, it does not. That is why I tabled the amendment.
I ask the Government to think again about their judgment in relation to these clauses. In my submission it is more likely than not that the Government are wrong. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ Lord Kingsland
moved Amendment No. 206: Page 147, line 36, at end insert— (3) The Scottish Ministers must make a code of practice in connection with the relationship between and the order of priority to be given to the criminal confiscation, civil recovery and revenue functions under Parts 3, 5 and 6 of this Act. (4) Where they propose to issue a code of practice, they must—

(a) publish a draft;

(b) consider any representations made to them about the draft; and

(c) if they think it appropriate, modify the draft in the light of any such representations.

(5) They must lay a draft of the code before the Scottish Parliament. (6) When they have laid a draft of the code before the Scottish Parliament, they may bring it into operation by order. (7) They may revise the whole or any part of the code issued by them and issue the code as revised; and subsections (4) and (6) apply to such revised code as they apply to the original code. (8) The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant. The noble Lord said: Amendment No. 206 was inspired by the Scottish Law Society. It makes provision for a code of practice which will specify the relationship between criminal confiscation, civil recovery and the revenue functions contained in Parts 3, 5 and 6 of the Bill.
As I understand it, assurances were given by Ministers both in the Scottish Parliament and in another place that there will be a hierarchy of proceedings; and that a criminal investigation will be given priority over civil recovery. However, as a number of Members of the Committee pointed out in earlier proceedings, that policy intention is not reflected on the face of the Bill.
If the new procedures are to operate effectively and evidence essential to a criminal trial is not to be prejudiced, then the relationship between, and the interaction of, civil and criminal powers should be 64 fully explained in a code of practice which has the force of statute. That is what the amendment seeks to achieve. I beg to move.

§ The Earl of Mar and Kellie
It is not often that I oppose something inspired by the Law Society of Scotland. But Amendment No. 206 is not only a breach of devolution practice, it is also, and even more so, a breach of the Sewel convention.
The inflammatory word for me occurs three times in subsections (3), (4) and (5); that is, the word "must". Members of the Committee will be familiar with spending half an hour discussing the merits of "may" or "shall"; but "must" should generate perhaps a greater length of time. I am not sure that I have ever seen it before. I cannot support the amendment therefore on the grounds of the terminology used.

§ Lord Kingsland
I am grateful to the noble Earl for drawing my attention to that point. Were the amendment to be redrafted on Report to contain the word "shall" rather than "must", would the noble Earl's intervention be different?

§ The Earl of Mar and Kellie
I am certain that I would be able to read the amendment in a more calm frame of mind for me to make a decision about it.

§ Lord Goldsmith
A difficulty exists in addition to that referred to by the noble Earl; that is, that the proposed amendment breaches yet a further convention. It puts upon Scottish Ministers the obligation to give instructions or guidance to the Lord Advocate on criminal matters. That would be inappropriate.
The practical answer is that Scottish Ministers have already published draft guidance on this matter. The draft guidance has been placed in the Library of your Lordships' House. A copy was made available to the Scottish Parliament for the purpose of the Sewel Motion by which that Parliament agreed to Westminster legislating on devolved matters. The guidance sets out the key principles which will govern the operation in Scotland under the powers contained in Parts 3, 5 and 6. I am sure that the noble Lord, Lord Kingsland, read it and had no difficulty with its content.
Therefore, given that that guidance will be published in final form after the Bill receives Royal Assent by the Scottish Ministers and copies placed in the Scottish Parliament, the only question is whether it is right that it should appear on the face of the Bill. For the reasons given by the noble Earl, but also because we regard it as unnecessary in circumstances where Scottish Ministers have provided eminently satisfactory draft guidance which will be published, we oppose the amendment. I ask the noble Lord to withdraw it.

§ Lord Kingsland
I am grateful to the Minister. When he responded to a testing and apposite intervention by the noble and learned Lord, Lord Hope of Craighead, about half an hour ago, he disclaimed any knowledge 65 whatever of Scottish law or procedure. He has clearly spent the past half-hour on the Bench most productively—because in response to me he demonstrated the most extraordinary and intimate knowledge of the workings of both the Scottish legal system and the Scottish constitution.

§ Lord Goldsmith
If the noble Lord will forgive me, the position is exactly the same in England. I would not accept any Minister giving me instructions as Attorney-General in relation to my prosecution functions. In that respect there is commonality between the two systems of law.

§ Lord Kingsland
In any event, I am sure that the Scottish Law Society will pay close attention to these proceedings in Hansard, and no doubt between now and Report will express a view as to whether or not this matter should be pursued further. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question. Whether Clause 248 shall stand part of the Bill?

§ 6.30 p.m.

§ Lord Lloyd of Berwick
At Second Reading I had hoped to galvanise the Opposition Front Benches to mounting an all-out attack on Part 5 of the Bill. That has not happened. Therefore I am left to take up the cudgel still alone.
It is true that some useful amendments have been tabled, some of which have already been debated—two in particular—and they are extremely important. But in my view those amendments are doing no more than chipping at the edges of the problem. The defects in Part 5 are too deep-seated to be dealt with in that somewhat piecemeal way.
Part 5 is objectionable on three different grounds. When I refer to Part 5, I am really referring to Chapters 1 and 2, not Chapter 3, and I shall not be drawn into the question already discussed by the noble Lord, Lord Goodhart, and my noble and learned friend Lord Hope of Craighead of whether there may or may not be some overlap between the civil recovery order and the forfeiture of cash under Chapter 3. The three reasons why I regard Part 5 as objectionable are: first, that it is incompatible with the Human Rights Act 1998; secondly, that the net is cast so wide that it is likely to give rise to cases of grave injustice; and, thirdly, that I doubt whether it will ever be cost-effective in practice and may even prove to be unworkable—like so much of recent criminal legislation, I regret to have to say.
I shall take the three points in turn. I start with the example of a respondent whose unlawful conduct is in issue—in other words, a respondent who is himself alleged to have obtained property through his own drug dealing, racketeering or whatever offence is in question. In such a case, I suggest that a recovery order under Part 5 would in every respect be equivalent to a confiscation order under Part 2, even though he would not have been convicted of any offence in a criminal 66 court. Instead, he would be found guilty of the offence in question by a civil court on a mere balance of probabilities. For unless he has been found guilty of unlawful conduct, the recovery procedure under Part 5 will not get off the ground. I hope that when he replies, the noble and learned Lord the Attorney-General will accept my argument at least to that point.
But the next step is that if a recovery order under Part 5 is in those circumstances the equivalent of a confiscation order—I suggest that no other view is possible—it is clear that the confiscation order would be a penalty under Article 7 of the convention. If it is a penalty, it is equally clear that the penalty is intended to be retrospective, as the Attorney-General accepted in reply to an amendment tabled by the noble Lord, Lord Kingsland.
The Attorney-General referred to the limitation period of 12 years in Clause 290. The Committee will notice that 12 years is distinct from the normal period of limitation of six years. That in itself is a strong indication—among many others—that we are here discussing criminal sanctions, not civil reparations. The Attorney-General also drew attention to the fact that the Government do not intend to make retrospective conduct unlawful. Well, thank goodness that they do not, but that is not the question. The question is not whether conduct is made unlawful retrospectively, but whether the penalty is retrospectively made greater than it would otherwise have been.
If all that is so, it follows that the first retrospective recovery order made against a respondent whose own unlawful conduct is in issue will be bound to be challenged in the European Court of Human Rights under Article 7 and the challenge is bound to succeed. I am sorry to sound so definite when the noble Lord, Lord Kingsland, talked about the balance of probabilities and the noble Lord, Lord Goodhart, spoke in a somewhat hesitant manner, hut it seems to be as definite as that. I look forward to hearing from the Attorney-General why that is not so.
At that point, I might simply say, "Quod erat demonstrandum", and sit down, but I think that I should try to anticipate some of the further arguments that the Attorney-General may advance and deal with those that he has already advanced. At Second Reading, he referred to three recent decisions: one of the Judicial Committee of the Privy Council; one of the House of Lords; and one of the European Court. I should have thought that he would by now have accepted that those cases do not help his argument. As the noble Lord, Lord Goodhart, said, they do not bear even a superficial similarity to what we are discussing. They were solely concerned with the scope of Article 6(2) of the convention on a case in which the defendant had already been charged with and convicted of the offence. I am at present concerned not with Article 6(2) but with Article 7. The three cases to which the Attorney-General referred simply do not touch on the question of Article 7.
At Second Reading, the noble and learned Lord also referred to an Irish case, which I have considered" but again, it does not help. The question there was whether 67 a civil recovery procedure was or was not unconstitutional. The question of whether it would have been caught by Article 7 of the convention simply did not arise for the good reason that the European Convention is not incorporated into Irish law. It was purely a question of Irish domestic law whether the procedure was constitutional or not.
Why, then, am I so confident that a confiscation order is a penalty within the meaning of Article 7? Simply because that very point was decided by the European Court in the case of Welch. It was argued in that case on behalf of Her Majesty's Government that the purpose of the confiscation regime was preventive and reparative, not punitive. Those are the very arguments advanced by the Home Office in its memorandum of January 2002. At Second Reading, I was on the point of describing that argument as rubbish. Happily, I refrained in time. Instead, it may be less offensive if I say that that argument was unanimously rejected by the court in Strasbourg. In those circumstances, I am somewhat surprised to find it being raised yet again.
It cannot be said that the Welch case was wrongly decided. There may be an attempt to distinguish it on the grounds that it was concerned with a confiscation order—as, clearly, it was—not with a recovery order. However, that misses the point. Everybody agrees that the European Court of Human Rights considers what a piece of legislation does, not what it is called. Otherwise, it would be all too easy for a state to get round convention rights.
I am reminded of an observation made, I think, by the noble and learned Lord, Lord Templeman, in a different context. He said that if we design an agricultural implement for digging and it has a handle and four or five prongs, we have designed a fork. We can call it a spade, if we like, but it remains, in fact and in law, a fork. Likewise, if we design a piece of legislation with the object of depriving a man of some or all of his possessions, after he has been found guilty of unlawful conduct under Part 5, we can describe that as a recovery order, but the European Court will call our bluff and will call it what it is—a confiscation order by another name.
Part 5 is incompatible with the convention rights. It is not good enough for the noble and learned Lord the Attorney-General to say that, although it may be incompatible, he is prepared to take a risk and see what happens.
In raising my second objection, I must say something about the requirements of justice. In the other place, the Minister made much of the major criminal figures—400 in all—who had become untouchable by criminal prosecution and who organised and financed criminal activity without committing particular crimes. The noble and learned Lord referred to the same 400 major criminal figures. If that is the case, it is time that we changed the substantive criminal law, as we did in the Terrorism Act 2000. Under that Act, organising, financing and 68 directing a terrorist organisation is a substantive offence. Why should not we do the same in other branches of the criminal law?
If we were still to have difficulty convicting those major criminals, because of problems with getting evidence together and putting it before the court, we should change our law of evidence. For example, we could make telephone intercepts admissible in criminal proceedings, as they should always have been. It is far better to do that than twist the civil law to make it do a job for which it was never intended.
What happens if we do all that and there is still not enough evidence to charge and convict those 400 major criminals before a jury, although there is just enough evidence to persuade a judge on a mere balance of probability? How would the Director of Public Prosecutions put his case? He would say, "I think that you have committed serious offences"—drug dealing, living off immoral earnings or whatever—"and are, therefore, guilty of unlawful conduct under Clause 249. Unfortunately, we cannot put you in prison, because the evidence is not strong enough. I can, however, take your goods instead. In your case, the judge will have no discretion, because he will be bound to make a recovery order under Clause 270". Surely, the defendant is entitled to reply, "I deny that I am guilty of any wrongdoing. You have got the wrong man. If you, representing the Crown, think otherwise, I am entitled to have that matter decided by a jury".
I ask the noble and learned Lord two questions. Does he accept that, in such a case, a person whose serious criminal conduct is in issue ought to be entitled to have the matter decided by a jury? Does he accept that the right to trial by jury is one of our ancient liberties—they were referred to earlier—but that it would seem to be overridden by Part 5, in so far as it applies to a respondent whose own criminal conduct is in issue?
My third objection is that there is a danger that Part 5 will, all too soon, become a dead letter. There may be one or two high-profile cases, but, as soon as the director begins to discover some of the pitfalls connected with Part 5—there are many—and has been taken to Strasbourg once or twice, he may take the view that his time and money would be better spent pursuing convicted offenders under Part 2. That is where his efforts should be concentrated.
It is fanciful to suppose that the 400 major criminals will stand around waiting for an interim receiving order to be served on them under Clause 254. If they are sophisticated enough to have become untouchable by the criminal law, will they not also be sufficiently sophisticated to get round the provisions of the civil law? They might take all their possessions to Ireland; I do not wish to suggest to them what they might do. There must be many ways in which those 400 criminals could avoid the effect of the civil procedure that is proposed. We will then have yet another piece of criminal legislation that looks good on paper but is useless in practice. We all remember a provision now incorporated into the Terrorism Act 2000 that was 69 supposed to secure the conviction of the Omagh bombers. Not only has it not done that but it has done nothing, so far as I know.
The Proceeds of Crime Bill is an admirable and much needed Bill. However, the Government have gone a step too far in Part 5. It is incompatible with the Human Rights Act 1998, for the reasons that I have given. That was the view of the Joint Committee on Human Rights, as I read paragraphs 17 to 24 of its further report. I hope that the Minister will think again about whether he was justified in making the statement that appears on the face of the Bill.

§ 6.45 p.m.

Lord Renton
The noble and learned Lord, Lord Lloyd of Berwick, has performed a valuable service, in drawing attention to some of the difficulties that will arise if Part 5 is allowed to stand as it is. My point is fairly brief, and I shall confine myself to Chapter 1 of Part 5. Until I retired from the Bar at the age of 66, roughly a third of my practice was in criminal law. I also spent eight years as a recorder and was sometimes engaged in other judicial criminal court work.
In addressing my main point, I invite the Committee to look at Clause 248(2). It states clearly that: The powers conferred by this Part are exercisable in relation to any property (including cash) whether or not the proceedings have been brought for an offence in connection with the property". Under English law, the offence must be proved beyond reasonable doubt but under Clause 249 there appears to be a strange mix-up in relation to the burden of proof. It is clear enough where there has been a conviction, but subsection (3) states: The court of sheriff must decide on a balance of probabilities whether it is proved". That is quite different from the normal burden of proof under our law in the United Kingdom in criminal cases. I therefore believe that we cannot allow Clause 249, with its variation in the burden of proof before there is liability.
We must also bear in mind that Clause 249(2) states: Conduct which…occurs in a country outside the United Kingdom and is unlawful under the criminal law of that country…is also unlawful conduct". That is, if the conduct occurred in a part of the United Kingdom, it would be unlawful under the criminal law of that part. I find that a confusing piece of drafting and we need to apply our minds to it.
I admire the Government's intention—and I believe it to be valid—of trying to enable property to be recovered which has been obtained by unlawful conduct. That is a sound proposition, but we must be careful to be consistent in the circumstances in which it is proved that conduct has been unlawful and therefore the circumstances in which the property can be recovered.

§ Lord Goodhart
I rise to speak because the noble and learned Lord, Lord Lloyd of Berwick, said that he sought our support for the Motion but we were unable to give it. I believe that I should therefore explain why that was so.
First, the noble and learned Lord's reference to the remarks of the noble and learned Lord, Lord Templeman, about forks and spades brought back some extremely painful memories. The remarks were made by him in a case in which I appeared for the respondent in the Appellate Committee of your Lordships' House and unfortunately the appeal was allowed. Hearing those remarks again brought back unhappy memories.
The noble and learned Lord, Lord Lloyd, gave three grounds for why the clause should not be allowed to stand. His comments were far-reaching because his real objection was not merely to the clause but effectively to the whole of the part of the Bill, as he made clear. It is therefore by far the most fundamental and important amendment with which we have had to deal. The noble and learned Lord made three points. First, that Clause 248 was incompatible with the European Convention on Human Rights or the Human Rights Act. Secondly, that it might give rise to injustice. Thirdly, he doubted whether it would be cost-effective in practice. The third of those reasons is perhaps the least important and we on these Benches would be prepared to give the Government the benefit of the doubt about it.
I believe that Clause 248 may well be incompatible with the Human Rights Act in so far as it operates retrospectively as discussed in the previous debate. However, in future there will undoubtedly be many cases brought for a civil recovery order in which on no footing can an element of retrospectivity arise because the unlawful conduct complained about occurred after the enactment of the Bill.
In such cases, I find it difficult to see any fundamental incompatibility between Clause 248 and the Human Rights Act. A civil recovery order may well be justified where, for example, a criminal has assets which are within the jurisdiction but he has either gone to ground and disappeared; or he may have gone to some other country from which he cannot be extradited; or he may have died and cannot on any footing be prosecuted. A civil recovery order may also be useful where recovery is sought from a person into whose hands the property has passed and where that person is not the wrong-doer. Therefore, I regard the incompatibility as being partial rather than complete.
As regards the ground that Clause 248 might give rise to cases of injustice, there is undoubtedly a risk. That is perhaps best dealt with by pressing various amendments to this part of the Bill which would reduce the risks of injustice. That may be done by, for example, re-examining the standard of proof necessary in order to activate Clause 248. The question of injustice may be assisted if we narrow the circumstances in which an interim recovery order may be obtained, which is a potential injustice.
71 While I have to some extent considerable overlap of agreement with the noble and learned Lord, Lord Lloyd, it does not go so far as to justify a root and branch objection to what would in effect be the whole of Part 5 of the Bill.

§ Lord Kingsland
I thank the noble and learned Lord, Lord Lloyd, for what I am sure the Committee will agree was a remarkable intervention. I wholly endorse the analysis made by the noble Lord, Lord Goodhart, with respect to the first of the noble and learned Lord's points. As regards retrospectivity, I believe it highly likely that Clause 248 contravenes the European Convention.
As regards subsequent Acts following the passage of the Bill, serious questions remain about compatibility with Article 6. The reason that I felt, at least at this stage of the proceedings, that I was unable to support the noble and learned Lord, Lord Lloyd, was that, at the end of the day, compatibility is a matter for the courts. Given the fact that we, on the Opposition Benches, broadly support the Government's policy in Part 5 of the Bill, at this stage we have taken the view that, although we would prefer the Government to make the appropriate amendments now, on balance it is better to leave matters to the courts at a later stage.
However, that judgment has now been tempered by the perspicacious analysis of the noble and learned Lord, Lord Lloyd of Berwick, with regard to his second head—the issue of grave injustice. The noble and learned Lord is surely right in saying that the effect of Part 5 will be to deny individuals, who have not previously been convicted of a criminal offence, their cardinal right under English law, which is their right to trial by jury. I found that point quite telling. I shall be reflecting on it between now and Report stage and will look afresh at any further intervention that the noble and learned Lord, Lord Lloyd, may like to make as regards Clause 248 when the time comes.

§ 7 p.m.

§ Lord Goldsmith
Notwithstanding that ultimately the noble and learned Lord's proposition is not supported at this stage—I note what the noble Lord, Lord Kingsland, said—by either of the two opposition parties, it is obviously right that the careful analysis which the noble and learned Lord put forward should be addressed properly. I thank him for that. I shall seek to address it head on. Indeed, we have had a discussion about this already for which I am grateful to him
Before turning to the three points that he makes, I would like to emphasise one or two aspects which run through what I want to say. It is clear from what has already been said on this Bill here and in another place that it is the Government's view, supported until now by the other parties, that Part 5 of the Bill is needed to fill an important gap in the law. Without it and civil recovery, however well meaning and whatever innovative ideas one has about the criminal law the process cannot otherwise be achieved.
72 But it is important—and this is at the heart of the Government's approach—that the civil recovery process is focusing exclusively on the origin of property. It is to be a proprietary remedy, which attaches to the property. It will not be dependent on the person who holds the property having been convicted or, more to the point, having committed any offence. I illustrate that by some of the examples in which that will operate. It is not a form of prosecution. Its purpose is not to secure a conviction against any person and it cannot do so. The result of civil recovery cannot be, for example but most pointedly, a sentence of imprisonment on someone for committing serious crime. It is because civil recovery focuses on property rather than on conduct that it is properly, in the Government's view, a civil procedure. It is also why the points made by the noble and learned Lord, Lord Lloyd of Berwick, about the justice of the situation, in our judgment, are inapposite.
First, I want to emphasise, therefore, the hierarchy. The prosecution of offences will remain the priority in all cases. The noble and learned Lord suggested that the director—which I understood to be the director of the assets recovery agency—should prosecute. It is very important to note that the director will have no power to prosecute. The power to prosecute will be the power of the existing prosecution agencies in England and Scotland. It is clear from the hierarchy which has been identified that the prosecution of offences will remain the priority in all cases. That is not intended as a soft option. For example, it is made clear in the draft guidance that it would not be a proper exercise of the prosecutorial discretion—there are two tests for prosecution, the evidential and the public interest test—to say that in the public interest there is no need to prosecute because there is the alternative of civil recovery.
However, in what kinds of cases may civil recovery take place? One example would be where the law enforcement authority has carried out a criminal investigation and consulted the prosecuting authority and a decision not to institute criminal proceedings has been taken applying normal evidential and public interest criteria. I acknowledge that that would be such a case, but I emphasise that the decision not to prosecute would be taken without regard to whether civil recovery may be available.
But there are many other examples which do not even touch on the possibility that the respondent is actually himself or herself being accused of criminal conduct; where the person suspected of the unlawful conduct through which property was obtained is not available because that person is dead or abroad and there is no reasonable prospect of securing their extradition. That is even before any advice has been given to such people to leave the jurisdiction.
A related example would be if a person had been convicted of an offence abroad, for example, for drug-related crime, but had recoverable property in the United Kingdom. The important point is that law enforcement and prosecution authorities will ensure that the possibility of bringing criminal proceedings has been fully considered in every case.
73 The second point is that when the civil recovery process takes place it will be governed by the normal civil procedure rules. There will be court proceedings in the High Court and civil procedure rules will apply. In Northern Ireland it will be according to the rules of the Supreme Court and in Scotland, I understand—without fully understanding what it means—according to the petition rules of the Court of Session. We shall obviously look at the detail of the procedural scheme set out and the safeguards which apply.
There is one aspect I wish to return to. But this part of the Bill is aimed at the need to deal with the problem, the "corrosive effect", referred to by the noble Lord, Lord Kingsland, at Second Reading, of proceeds of crime and of depriving people of the working capital by which further crime, drug trafficking and more serious and organised events can take place.
I turn to the three points made by the noble and learned Lord. The first was that the Bill is incompatible. I am not going to take the point that the clause to which he refers also deals with cash forfeiture. That is not a feature of Part 5 of the Bill to which, I understand, the noble and learned Lord takes objection. Technically, his opposition to the clause standing part of the Bill would cut out that part of the Bill as well. I know that that is not his intention.
It is not the case that what I have been saying is that the Government believe that this may be incompatible. The Government's view is that it is not incompatible. I have been happy to accept that there is a degree of uncertainty. But that, as the noble Lord, Lord Kingsland, said, would be for the courts to determine. The Government would not be going into this matter unless they believed that it was compatible.
Therefore, I beg to differ fundamentally and strongly with the view of the noble and learned Lord that there will be a challenge which would be bound to succeed in Strasbourg. First, the jurisprudence to which I referred previously is, at the very lowest—to use the expression of the noble Lord, Lord Goodhart— at least superficially in point. However, we believe that it goes further. What is being said there, and, indeed, has been said by the courts in Strasbourg, in the Privy Council and in the Judicial Committee of this House, is that when there are proceedings after a conviction but which relate to the proceeds of conduct that has not been the subject of a conviction, that constitutes a civil procedure, not a criminal procedure. I emphasise the fact that that applies not just to the case where the confiscation is in relation to the proceeds of the crime for which there has been a conviction, but conduct for which there has not been a conviction.
Secondly, there is other jurisprudence. For example, there is a decision of the European Court in a case called Raimondi, in Italian law—the reference of which I shall, of course, give to the noble and learned Lord—which does not appear to be that dissimilar when dealing with Mafia situations; and which, again, is helpful. I also mention the case of Welch to which the noble and learned referred. This is not the occasion for 74 the full-blown debate as to compatibility that may well take place in court. However, I make the following suggestion to the noble and learned Lord.
The key question in the two cases mentioned was whether or not this was a criminal or a civil matter. That is a very important question, not just for Article 6 but also for Article 7 purposes. Moreover, the particular point in Welch was that there had in fact been a conviction, and what was being done was following as a penalty for that conviction. That is the area in which the criminal confiscation procedures—the forfeiture—differ in a way that puts them on one side of the line from the present case. There will he no conviction in those cases. Therefore, the reasoning in Welch that found it was a penalty for a conviction would simply not apply. I give way.

§ Lord Lloyd of Berwick
I am obliged. Does the noble and learned Lord accept that one cannot get the civil recovery procedure off the ground unless there has been a finding of unlawful conduct? It does not worry me whether or not one calls that the equivalent of a conviction. There will have to have been a finding of unlawful conduct, which means a criminal offence, made by a civil judge.

§ Lord Goldsmith
I should like to make a point in reference to the noble and learned Lord's second point and, indeed, to the helpful and important observations of the noble Lord, Lord Renton. There are civil processes all the time that may involve consideration of conduct that is criminal, but in the course of civil procedure that does not mean that they are then subject to trial by jury or that they are to be determined by the criminal standard. When we debate the amendments relating to the burden of proof and the standard of proof, I shall say, as before, that the courts have made it clear that the balance of probabilities standard is a flexible one, and can involve the requirement for more persuasive proof in circumstances where what is being suggested is unlawful conduct. That is a large part of the answer, but it does not make any of that criminal process.
I turn to the noble and learned Lord's second point. From what I have suggested thus far, it is clear that there will be many cases in which the conduct in question is not the conduct of the individual who is the respondent. Further, it is not the case that the court is bound to make a recovery order. I draw the attention of the Committee to Clause 270(3)(b), which provides an important exception in the case where "Convention rights" would be infringed.
In that context, the noble and learned Lord made two points. First, he asked whether I accepted that, in such a case, serious criminal conduct ought to be decided by a jury. The right to trial by jury is an ancient liberty. I do not dispute the proposition about trial by jury for today's purposes—no more than in a case that involved libel, or a property claim by an individual saying that the property had been taken from him by theft. Indeed, no more than in those cases would it be trial by jury, and, therefore, no more in the civil process should it be trial by jury. In other words, if the 75 process is one to recover property, which this is, it is entirely appropriate that it should be decided by the court that deals with civil process.
Secondly, the noble and learned Lord stated that Part 5 of the Bill would become a dead letter. I respectfully beg to differ both fundamentally and profoundly with him in that respect. The experience in Australia, in Italy, in Ireland, which I have seen for myself, and in the United States is that this process is an effective and important one; and, indeed, that it does work. However, as the noble Lord, Lord Goodhart, said, that is very much a matter for government to judge. Government have judged that this is an important part of the legislation, which represents an important element in the present law.
I hope that I have substantially covered the points made by the noble and learned Lord. I, too, recall the observation of the noble and learned Lord, Lord Templeman. That is not because I was involved in that case, but because it recalls to me the trenchant way in which the noble and learned Lord was often able to dismiss arguments put by others. I commend the clause to the Committee.

§ Lord Lloyd of Berwick
By way of reply, perhaps I may point out that the noble and learned Lord won that particular case, while the noble Lord, Lord Goodhart, lost it. I am most grateful for the observations made by the noble Lords, Lord Goodhart and Lord Kingsland. I am especially grateful to the noble and learned Lord the Attorney-General for the care that he has taken to deal with my arguments. However, for the moment, I shall leave the matter.
Clause 248 agreed to.

§ 7.15 p.m.

§ Clause 249 ["Unlawful conduct"]:

§ Lord Kingsland
moved Amendment No. 207: Page 148, line 3, at end insert— () Civil proceedings will not be available if there has been an acquittal or conviction in criminal proceedings in relation to the same behaviour alleged or relied on. The noble Lord said: The purpose of this amendment—in a sense, the point flows from the immediately preceding debate—is to prevent civil proceedings becoming a second bite of the cherry. There is nothing currently in the Bill to prevent the assets recovery agency—the ARA—from bringing civil recovery proceedings at the conclusion of an unsuccessful criminal prosecution. That must be wrong in principle. Someone acquitted at the criminal standard should not, subsequently, be made subject to lengthy asset recovery procedures at the civil standard of proof. Moreover, there is nothing in the Bill that would prevent civil proceedings being brought simultaneously with criminal proceedings. I beg to move.

§ Lord Goodhart
One of the amendments in this group is Amendment No. 209, which stands in my 76 name. I wish, therefore, to support the remarks just made by the noble Lord, Lord Kingsland. As the Bills stands, it is open to the state in the form of the Crown Prosecution Service and the enforcement authority to bring criminal charges, and then, following the acquittal of the defendant by the jury, to come back for a second bite by way of an action for a civil recovery order based on the alleged "unlawful conduct", of which the respondent to that claim has been acquitted. That seems to me to be very close to double jeopardy; indeed, altogether too close to be permissible. Again, even in civil proceedings, a final decision between the parties is binding and the issues cannot be relitigated unless the first decision was obtained by perjury, by fraud, or by something similar.
Where a defendant is acquitted of, for example, murder, I recognise that there have been cases in which the family of the victim has brought a civil action for damages against the murderer and succeeded, despite the acquittal. However, in such a case, the criminal proceedings and the civil proceedings are brought by different parties. What the family seeks is not a penalty but compensation for loss.
Some confusion is being caused here by the use of the word "recovery". It is not, in any real sense that I am aware of, recovery that is being sought. What is happening is that the state, which has actually lost nothing, is forfeiting money that has been acquired by criminal means. That is an entirely different matter from compensation for loss.
In the case of an unsuccessful prosecution followed by a civil recovery order, the prosecutors in the criminal proceedings and the enforcement authority in the civil action are both organs of the state. If a jury is not satisfied that the respondent is guilty of unlawful conduct, it should not leave the state with the power to come back via the enforcement authority with a retrial of exactly the same issues. In these cases, the Crown Prosecution Service and the enforcement authority should work together.
I have serious questions about whether, in a case where there was real doubt whether a prosecution would succeed, it should properly be open to the prosecution to elect not to proceed with the charges and, instead, leave the authority to proceed for a civil recovery order. Even if that is permissible, clearly, where the prosecution has elected to go for a criminal prosecution and that is unsuccessful and leads to acquittal by a jury, then the prosecution should be required to live by its election and it should not in such a case be open to proceed on exactly the same facts which were an issue before a jury to seek a civil recovery order.

§ Lord Goldsmith
In speaking to Amendments Nos. 207 and 209 perhaps I may speak also to Amendments Nos. 211 and 212.
In relation to Amendments Nos. 207 and 209, I believe that the relationship between civil and criminal proceedings is clear from what I have said so far. The prosecution of criminals will continue to take priority, but there will be cases where there has not been a 77 prosecution. If there is a prosecution and a conviction, then criminal confiscation, under provisions in the earlier part of the Bill, will be the normal method of recovering the proceeds of crime. But if no conviction can be obtained, the director may consider civil recovery.
There may be some cases where the outcome of criminal proceedings will mean that civil recovery proceedings are not possible. I shall return to that subject. It will be for the director to decide in the circumstances of each particular case whether that is so. We certainly do not accept that, where a criminal case has not resulted in a conviction, civil recovery action should automatically be barred.
Where a person is acquitted of a specific offence charged in the criminal proceedings, there may be compelling evidence that some of his assets were none the less derived from unlawful conduct by himself or others. For example, he may be charged with theft of property or with handling property. It may be absolutely proved to the hilt that it was stolen property, but he may deny some particular knowledge or participation in the theft and therefore be acquitted. Why should he then, notwithstanding that, be able to hold on to that property? There may be other processes, hut surely the civil recovery process would be entirely appropriate?
New evidence may also come to light after a trial that may show a link between particular property and unlawful conduct. Although a second criminal trial would not be possible, that should not mean that civil recovery proceedings should be barred.
We recognise that there are lifestyle criminals who may avoid conviction because of witness intimidation or for other evidential or procedural reasons; or because of the distance that they put between themselves and the criminality supporting their lifestyle. We believe that it should be open to the state to attack the assets that they hold if there is evidence—sufficient to satisfy the court— that those assets are tainted. The mere fact that a person may not have been found guilty of an individual offence should not act as an automatic bar.
Amendment No. 207 would also prevent proceedings taking place where a person had been convicted in relation to the unlawful conduct. That is at first sight an odd provision, because the person would then have been found guilty. But it is important to note that Clause 310(9) already prevents the civil recovery of property that has been taken into account in deciding a person's benefit from criminal conduct for the purpose of a confiscation order following a conviction. Clause 281(9) provides that where property has been taken into account in this way the confiscation order counts towards whether the enforcement authority's right to recover has been satisfied. If the property has been taken into account, there cannot be double recovery; but if it has not been taken into account and the person has been convicted of an offence, why should the civil recovery process to obtain that property not be available?
78 We do not accept that Amendment No. 207—or Amendment No. 209—is correct, even from a position where the respondent to the civil process has been the defendant in the criminal process. But the amendment goes further. Not only would it prevent civil recovery proceedings being taken against the property of the individual who was the defendant; it would also prevent such proceedings being taken against any other person who may have property arising out of that unlawful conduct. So, for example, someone could be prosecuted as a thief and might be convicted as a thief. Against him, the court could only make orders in relation to property that he had, but it would be impossible to take civil recovery proceedings in relation to other people who were holding the property that that person had stolen. That cannot be right.
I turn to Amendments Nos. 211 and 212. They approach the issue in a somewhat different way. They would prevent civil recovery proceedings where a court had decided not to make a confiscation order.

§ Lord Kingsland
I am grateful to the noble and learned Lord for giving way. When I spoke to Amendment No. 207, I ought to have said that we shall not be moving Amendments Nos. 211 and 212.

§ Lord Goldsmith
That is very helpful. In those circumstances, I can simply invite the noble Lord to withdraw the amendment, and ask the noble Lord, Lord Goodhart, not to move Amendment No. 209.

§ Viscount Goschen
Before the Minister sits down, he gave examples of where the criminal proceedings and the civil proceedings might be on a different basis. For example, the drug dealer who has been acquitted of a specific offence may well have other property which has been acquired by nefarious means. The Minister put powerful arguments in such cases. But how would the noble and learned Lord ensure that an issue of double jeopardy could not arise if the two were directly related?
I refer, for example, to the case of a racketeer who has been acquitted of racketeering or of a drug smuggler who has been acquitted of drug smuggling, and yet civil proceedings can be brought against such people on the very same basis. Surely under those circumstances the director of the asset recovery agency could pursue action against an individual which would constitute double jeopardy. How can the noble and learned Lord ensure that in such circumstances that could not happen?

§ Lord Goodhart
The noble and learned Lord dealt mainly with Amendment No. 207. My Amendment No. 209 is rather more targeted and would eliminate the kind of problem referred to by the noble Viscount, Lord Goschen.

§ 7.30 p.m.

§ Lord Goldsmith
I apologise for lumping the noble Lord's amendment together with another amendment. So far as concerns Amendment No. 209, although I accept that not all of the points I made in respect of 79 Amendment No. 207 go to Amendment No. 209, most are essentially the same. While I accept that the amendment would focus more clearly on the relationship between the conduct of a person at issue in the civil recovery and the decision reached in the previous criminal proceedings, there could still be many different reasons why it would be appropriate to continue with the civil recovery.
I do not shrink from the fact that one of those reasons could be, for example, that either new evidence may come to light after a trial which could not be used to bring further criminal proceedings, or simply that evidence could be available in the civil process which was not available in the criminal one, or that evidence is available in the civil process which would satisfy a court, even though it did not satisfy the criminal process.
Why is that not double jeopardy? So far as the proceeds are concerned, there will not be double jeopardy because the same property cannot be recovered twice. It is not double jeopardy otherwise because the consequence of civil recovery will not be a conviction—a sentence of imprisonmentx2014;against the person whose conduct is at issue.
However, I have indicated that there will be cases where the director may well take the view that, having regard to the way in which the criminal trial proceeded, it would not be appropriate to continue with any form of civil recovery. As I mentioned at the outset of my remarks, that would be a matter to which the director would have regard. He is a public authority subject to the Human Rights Act 1998 and he would have to operate in a proportionate manner. There is no reason to think that the director would proceed in a manner inappropriate in the sense of the civil proceedings then brought. However, I hope that the examples I cited earlier would indicate that there will be many cases in which, whether or not there has been a conviction, it would be entirely appropriate to pursue civil recovery if the evidence is available.

§ Lord Kingsland
I am most grateful to the noble and learned Lord the Attorney-General for his reply and I apologise to him for not indicating at the outset that I did not intend to pursue Amendments Nos. 211 and 212.
Of course I am not happy with what the noble and learned Lord said in response to our Amendment No. 207; but on Report I shall be content to abandon it in favour of Amendment No. 209, promoted by the noble Lord, Lord Goodhart. It has all the marks of the mind of a Chancery lawyer with the accompanying refinement that one might have expected from that class of practitioner.
It also has the happy coincidence of linking with a telling point made by the noble and learned Lord, Lord Lloyd of Berwick, in his intervention during the reply made to him by the noble and learned Lord the Attorney-General. He spoke of the necessity of being able to identify unlawful conduct. Until unlawful conduct is identified, Chapter 1 of Part 5 would not be 80 triggered. I would submit that that important observation links extremely well with Amendment No. 209 in the name of the noble Lord, Lord Goodhart.
In our deliberations on Report, therefore, we shall be backing the noble Lord, Lord Goodhart, on the assumption that he will re-table the amendment. If he does not do so, then we shall adopt it. In the meantime, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

§ [Amendments Nos. 208 and 209 not moved.]

§ Clause 249 agreed to.

§ Clause 250 agreed to.

§ Lord Davies of Oldham
I beg to move that the House do now resume. In moving the Motion, perhaps I may suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.