Clause 302 - Property obtained through unlawful conduct

Part of Proceeds of Crime Bill – in a Public Bill Committee am 3:45 pm ar 10 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 3:45, 10 Ionawr 2002

These amendments will ensure that the drafting of clauses 302 and 303 is clear with regard to when property is recoverable. They do not represent a change of policy, but they will ensure that the clauses have the intended effect.

Amendment No. 337 is a drafting amendment. Clause 302 provides that property may be followed when it is disposed of by the person who originally obtained it through unlawful conduct. Where the property may be followed, it will remain recoverable, even though it is held by another person. Where property is disposed of, and one of the exceptions in clause 306 applies, the property ceases to be recoverable: it cannot be followed into the hands of the person who has obtained it. Thus, if property is disposed of to a bona fide purchaser, it cannot be followed into his hands—and it cannot be followed on a subsequent disposal. Amendment No. 337 makes that explicit, by establishing that the provisions to follow property apply to property obtained through unlawful conduct only while it is recoverable property.

Amendments Nos. 338 and 339 apply to clause 303. Subsection (1) of that clause provides that property that represents the original property obtained through unlawful conduct may also be recoverable property. It will be recoverable provided that the original property is, or has been, recoverable property. Thus, even if the original property has ceased to be recoverable—for example, because one of the exceptions in clause 306 now applies to it, or because it no longer exists—the property that represents it will remain recoverable. However, as I have mentioned, the original property may cease to be recoverable because one of the exceptions in clause 306 applies to it.

Subsection (2), as it is currently drafted, has the effect that, where other property is obtained in place of the original property, the other property represents the original property, regardless of whether the original property has ceased to be recoverable. I bet that that is not clear to Committee members, as we concentrated on cash forfeiture before switching to definitions, and we have now returned to civil recovery.

The situation to which I have referred with regard to subsection (2) should not arise under subsection (3), as it is implicit in that subsection that, if there is a disposal on which property cannot be followed, the property ceases to be recoverable. However, we think that it would be helpful if that was explicitly stated. That is why amendment No. 339 amends subsection (3) to make it clear that it applies only to recoverable property.