My Lords, I beg to move that this House do agree with the Commons in their Amendment 20. I shall also speak to Amendments 21 to 23, 27, 30, 39 to 41, 45, 48, 50, 134, 135 and 139. This group of amendments deals with two aspects of the operation of the Proceeds of Crime Act 2002. Commons Amendments 22, 23, 39 to 41, 50, 134 and 135 seek simply to return the reach of the civil recovery scheme under the Proceeds of Crime Act to the position it was believed to be in before last year’s Supreme Court judgment in the case of Perry v SOCA. The amendments to the 2002 Act do not introduce any new policy and we are certainly not breaking any new ground.
The amendments mean that the courts will again be able to make civil recovery orders against property anywhere in the world, provided that there is a link back to this jurisdiction. For example, the High Court of England and Wales will be able to make an order in respect of a Spanish villa bought by a criminal who is resident in England, or with money made from unlawful conduct committed in England.
The amendments also make it clear that requests can be made to other civil investigations where the evidence is located overseas to help facilitate the civil recovery process. These Commons amendments also put beyond doubt that investigation orders can be made against persons as well as property to assist in identifying further property which may become subject to a civil recovery order.
There is one difference between the restored Proceeds of Crime Act and how civil recovery operated prior to the Perry judgment. In the absence of a legislative consent Motion, the new schedule inserted by Commons Amendment 139 provides that the relevant amendments to the Proceeds of Crime Act do not extend to Northern Ireland. This means that for many offences the civil recovery regime in Northern Ireland does not have the international reach of the civil recovery regime in the rest of the UK. This is regrettable, especially for the people of Northern Ireland. However, as with the
National Crime Agency, which we debated earlier, we have taken a series of order-making powers to enable us to extend the provisions to Northern Ireland at a later date. Of course, any extension will require consent from Northern Ireland for matters that are within the legislative competence of the Northern Ireland Assembly.
The second issue addressed by the amendments relates to the provision of publicly funded legal aid to wealthy individuals whose assets are restrained under the Proceeds of Crime Act. The 2002 Act prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. Prior to the Proceeds of Crime Act, there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. However, this has led to a public perception that rich offenders with significant restrained assets are receiving vast sums of free legal aid when they could afford to make a contribution to their defence.
Since the Proceeds of Crime Act was introduced, a system of means testing for legal aid has been introduced for all Crown Court defendants. Those who can afford to pay some of or all their legal aid costs are required to do so. While anyone charged with a criminal offence and facing imprisonment or loss of livelihood is entitled to legal aid, I think the whole House would agree that if the defendant can pay some of or their entire legal bill, they should. After all, as we ask people on modest incomes to pay something towards their defence costs, it is only fair and reasonable that we ask millionaires to do so.
Commons Amendments 20, 21 and 27 amend Section 41 of PoCA to allow payment of a contribution towards, and up to the full amount of, defendants’ publicly funded legal aid costs. The detailed mechanism of how this will operate in practice will be set out in regulations subject to the affirmative resolution procedure. In framing such regulations, we will take into account the compensation paid to victims and the funding of further asset recovery work by law enforcement and prosecutors. We can already freeze criminals’ assets to make it easier to recover these ill gotten gains and compensate victims, but that often leaves the state picking up their legal bills, even if the offender has plenty of money to pay them as well. I hope that the whole House will agree that our aim should be to increase the overall amount of money being taken from criminals. The new clauses inserted by Commons Amendments 20 and 21 will enable us to do just that. I beg to move.
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