Amendment made: 40, in clause 32, page 27, line 8, at end insert—

“(2) In Schedule 5 to the Proceeds of Crime Act 2002 (criminal lifestyle offences: Northern Ireland), after paragraph 9A insert—

‘

9B (1) An offence under section 1 of the Criminal Justice Act 2024 (articles for use in serious crime).

(2) An offence under section 3 of the Criminal Justice Act 2024 (electronic devices for use in vehicle theft).’”—

This amendment adds the offences created by clauses 1 and 3 of the Bill to the offences listed in Schedule 5 to the Proceeds of Crime Act 2002 (criminal lifestyle offences: Northern Ireland).

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

With this it will be convenient to discuss the following:

Amendment 62, in schedule 4, page 119, line 18, leave out paragraph 25.

This amendment would remove the risk of dissipation as a condition for the making of a restraint order.

Schedule 4.

As always, Dame Angela, it is a pleasure to serve under your chairmanship.

Clause 32 introduces schedule 4 to the Bill, making reforms that are more than technical: they are significant reforms to the confiscation regime in part 2 of the Proceeds of Crime Act 2002, to which I suggest we refer henceforth as POCA. That Act was passed over 20 years ago. The measures that we are introducing apply only to the regime in England and Wales contained in part 2 of POCA; there are separate confiscation regimes that apply in Scotland and Northern Ireland in parts 3 and 4 of POCA respectively. We are discussing with the Scottish Government and the Northern Ireland Department of Justice whether the reforms introduced by the Bill should also be applied to the regimes in Scotland and Northern Ireland. If they so wish, no doubt there will be amendments in due course.

In 2018, the Home Office commissioned the Law Commission of England and Wales to review the confiscation regime and make recommendations. The commission’s report was published just over a year ago, in November 2022. It contains 119 recommendations, which have shaped the measures we are introducing in this Bill; essentially, we are implementing the Law Commission’s recommendations.

Reform is necessary to ensure that the confiscation regime operates as efficiently and effectively as possible, prevents criminals from retaining the ill-gotten gains of their criminality, and makes it clear to offenders and victims that crime does not pay. We will achieve that in schedule 4 by streamlining processes, creating realistic confiscation orders and expediting enforcement.

The Government have consulted extensively on the measures for reform, which benefit from over 20 years of operational insight. These reforms will support the delivery of key objectives in the economic crime plan 2 and the fraud strategy to reduce money laundering and increase asset recovery. The 10 parts of schedule 4 contain a number of reforms, which, broadly speaking, do what I have set out; I would of course be happy to go through them in detail should any Committee member so wish.

I note that the hon. Member for Nottingham North has tabled amendment 62. I propose to respond briefly to that amendment once the hon. Gentleman has spoken to it.

It is a pleasure to see you in the Chair, Dame Angela. I rise to speak to amendment 62.

Clause 32 and the weighty schedule that it introduces deal with confiscation orders and the regime that governs them. As the Minister says, they are not technical; they are substantial and important. It is safe to say that it is a matter of unanimity across the House that where people are convicted who have benefited, and in many cases made huge sums, from crime and its attendant misery, that money should be recovered from them where possible. Convicted criminals should not make out ahead as a result of their crimes. They should always know that that is what we believe in this place—perhaps they should have priced it in as a cost of doing business that they will not benefit from the misery that they bring.

It is no great surprise that we believe strongly in the Proceeds of Crime Act 2002, but it is important to ensure that it remains effective, two decades on, and that gaps are closed wherever they may exist. The Law Commission work commissioned by the Home Office was very valuable. Its 119 recommendations will help us to improve the process by which confiscation orders are made, ensure that orders are made realistic and proportionate, and improve the enforceability of orders. Those are noble goals, and we are grateful to the commission for its excellent work. We welcome and support clause 32 and schedule 4.

There is only one small change that I would suggest, and I am interested in the Minister’s views on it. I am grateful that he is letting me make my case first; sometimes with groups of amendments we get the case against what we are about to say before we have said it, which always seems a little unkind. I would like to see what he thinks about my amendment 62.

The Committee took evidence from Kennedy Talbot KC that dissipation was a material factor in delaying or preventing restraint orders. He suggested that we take it out. His evidence was of great interest:

“I am sure that the Committee is familiar with the power for the court to make restraint orders preventing people who are suspected of crime, and then charged with crime, from dealing with their assets. At the moment, a statutory proposal in the Bill is that the risk of dissipation factor—such risk needs to be established for an order to be made under case law, not under statute—should be specified. The answer, in my view, is to scrap the risk of dissipation, so that it is not a requirement.

In many cases, what prevents prosecutors from applying for restraint orders is that they feel they cannot meet that test. Normally, that is because the case is brought to them some time after an investigation first started. The defendants are often aware that they are being investigated, and the case law more or less establishes that unless you can show that a defendant is on the point of selling his house or moving £100,000 to the UAE or whatever it may be, you cannot get a restraint order. Scrap the risk of dissipation.”––[Official Report, Criminal Justice Public Bill Committee, 14 December 2023; c. 102, Q44.]

The challenge put to us by Kennedy Talbot KC is that although the risk of dissipation factor is well meant and was designed to find a fair balance as to effectiveness and proportionality between the individual and the collective, it is acting as a perverse incentive not to pursue confiscation orders or pursue assets. I do not think that that is what we want.

I must say, my amendment is possibly not the most elegant way of making that a reality. It would simply delete paragraph 25 of schedule 4, which relates to the risk of dissipation. There may be—in fact, there doubtlessly will be—other ways in which that could be done, and we would be very interested in that.

I am interested in what the Minister has to say in response because, if he is not willing to accept my amendment, I think it is incumbent on him to say whether he shares Kennedy Talbot KC’s concern. If he does, how else might we clear that test? But if he does not share it, why not, because that seemed a pretty reasonable point to me?

On Scotland and Northern Ireland, the Minister pre-empted a question that I was going to ask. This seems like another area where a four-nations approach would be desirable, so that there are no parts of the Union where someone is treated differently, or where it is better to base oneself to exploit differences in regimes. The Government have tabled an awful lot of amendment for this Committee stage. I would hope and expect them to slow down that approach over the rest of this Bill’s stages—in this and the other place—but we would very much welcome it, and they would have nothing to fear, if they tabled an amendment. Perhaps the Minister will say whether any further conversations are planned. Clearly, very effective conversations have taken place on the rest of the Bill, but I wonder whether conversations on this have ground to a halt. Could the Minister tell us whether this is an ongoing process?

I will first respond to the questions about amendment 62, to which the shadow Minister just spoke. I agree with the concern that he is raising. We must ensure that the barrier is not set too high, and that these orders can be made so that, where there is a risk of dissipation, the assets can, essentially, be placed under control so that they cannot be sold—or “dissipated”, as the Bill puts it.

As the hon. Gentleman said, there is already case law that the court has developed. It cannot be done arbitrarily. The court is essentially freezing someone’s assets, or preventing them from disposing of them at least, and there should be some sort of test before that draconian—but, of course, sometimes necessary—step is taken. That is currently in case law; all we are doing here is putting it on to a statutory footing. Law enforcement partners have welcomed that, because it provides clarity where currently there is simply case law.

Therefore, the Committee could reasonably ask itself whether the way in which this is drafted is reasonable and whether the test is set at the right level. The relevant part is part 8 of schedule 4, which starts at line 18 of page 119 and sets out exactly what the test is. As we would expect, the first test is that the first to fifth conditions in this section of POCA already apply. Secondly, the critical phrase is in paragraph 25(2)(a):

“there is a real risk that relevant realisable property”— meaning stuff that someone can sell—

“held by any person will be dissipated unless the Crown Court exercises the powers”.

Therefore, the test is set as there being a real risk that the relevant property may essentially be sold off. That is where the threshold is: “a real risk”.

Will the Minister give way on that point?

I will in just one moment. Then, to determine whether there is a real risk, the schedule sets out towards the end of page 119 what the court may have regard to. That includes the nature of the property and the extent to which steps have already been taken, which is only one consideration, not a determinative consideration. Other items include the circumstances of the person and evidence of their character, which means that, if they are a crook, the court would take extra care. It would also have regard to the nature of the defendant’s criminal conduct. Are they a fraudster? Are they into money laundering and moving cash around? It will also take into consideration the amount of money involved and the stage of proceedings. Presumably that means that the further advanced the proceedings, the more sensitive the court will be. None of those different factors is individually determinative, but they should all be considered. On page 119, line 24 of the Bill, schedule 4 inserts in the Proceeds of Crime Act 2002 the critical phrase,

“there is a real risk”.

I would be interested to hear the shadow Minister’s view on that point, and not on any other points he may wish to intervene on.

The Bill defines many terms, and I hope that “crook” will become one such term at a later stage. It is a great phrase.

In previous debates, the Minister has said that putting things on the record may be valuable to future court interpretation. What I am hearing from the Government is a clear message that by “risk of dissipation”, we are talking about not acts of or in the throes of, but a much broader definition. That would be enough comfort to me on my amendment.

Yes, I am very happy to give the shadow Minister that assurance and to state clearly on the record in Hansard that that is the Government’s intent, and I think it is also the Committee’s intent—I can see waves of agreement rippling around Committee Room 10. We do intend for this to be applied widely. This does not just mean that an asset is on the cusp of being sold; it is much wider than that. It means that any real risk that property might be sold should engage the provisions of this clause, and the judge should have the confidence and, when this is passed, the statutory basis to make that order. The shadow Minister is absolutely right that there is cross-party agreement that this should be quite widely interpreted by the courts, should it be passed. I absolutely put on the record what he was saying.

On the shadow Minister’s other question, discussions are ongoing with the devolved Administrations. We would be very happy to extend these provisions to them. As he said earlier, it is much better that these things are done on a UK-wide basis. We the UK Government are certainly engaging constructively. I am hoping to have more to say on Report. If those jurisdictions want to take up these provisions, I expect there will be an amendment on Report, but it would obviously require their agreement. That is certainly something we would want to facilitate.

Question put and agreed to.

Clause 32, as amended, accordingly ordered to stand part of the Bill.