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

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

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

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

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

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

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

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

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

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

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

[Mr. John McWilliam in the Chair]

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

Will my hon. Friend give way?

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

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

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

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

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

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

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

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

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

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

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

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

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

Amendment, by leave, withdrawn.

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

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

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

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

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

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

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

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

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

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

Subsection (4)(c) refers to

``general or particular criminal conduct''.

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

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

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

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

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

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

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

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

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

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

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

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

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

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.