I beg to move amendment No. 16, in page 37, leave out lines 36 to 40 and insert
The amendment relates to a rather odd passage between the Under-Secretary and myself during the Committee stage. Hon. Members who were involved in earlier stages of the Bill will remember that we are putting on the statute book a very complicated series of provisions, which will allow the courts to impose a sentence of imprisonment in drug trafficking cases—probably substantial, and rightly so, given the current trend of legal opinion and sentencing policy. In addition, the Bill allows for forfeiture and confiscation based on the assumed profits of a course of drug trafficking on the part of the accused. It is a draconian power, by any standards. I must stress that, as it is an important part of my argument for amendment No. 16. It is assumed that any assets that have been acquired during the six years before the point at which the court is considering a confiscation order have been acquired illegally in the course of drug trafficking. That assumption must be rebutted if any assets are not to be potentially subject to the forfeiture order. It is against that main point of the Bill that we deal with what is now clause 44, which strikes me as an odd clause. It puts forward the possibility of offences relating to controlled drugs, and the imposition of fines for those offences. It has been proposed—and I put this to the Minister—that an individual might appear in the High Court, or certainly might be indicted, and, having been sentenced to a lengthy term of imprisonment, might then be subject to a confiscation order, and he or his family might be left with no assets of any kind. Moreover, clause 44 contains the assumption that the court may impose a further fine if it considers that appropriate. It seems remarkable that someone who has suffered the major penalties that I have described should suddenly find himself the subject of a further fine. I consider it a strange proposal for two reasons. We have gone to great trouble to put on the statute book the confiscation and forfeiture provisions, and in doing so we have repealed the provisions for a fine which we put on the statute book only 18 months ago. We are doing that because it was said, or at least clearly implied, that the Government felt that a fine was not really an appropriate way of approaching the problem; if someone was going to prison, to add a punitive fine was something of a legal nonsense, and it would be much better to go for confiscation and forfeiture. On the whole, I sympathise with that argument, arid I have given it broad support. However, it seems a bit de trop then to turn round and, having substituted the machinery of confiscation and forfeiture, to reintroduce in clause 44—if not by the back door, at least by a side door—the principle of fines in cases involving drugs. I do not see the use of that—here I come to the specifics of the amendment—if we are also going to have a confiscation order. The Under-Secretary—I believe it was him; my memory is reasonably good—was very forthcoming, as he often is. Indeed, sometimes I think that he is too forthcoming for his own good. He shows a touch of naivety occasionally. He described to me exactly the reason why the Government want the clause on the statute book. I did not like that reason, which is why I put down my amendments and why I wish to pursue the matter in debate. The Under-Secretary said that I had misunderstood the position. Let me paraphrase, I hope fairly, what he said. He gave an example in which a person accused and finally convicted of drug trafficking was given a 10-year sentence. We were to assume that his assets were £200,000, that there was consideration of a confiscation order, but that when it came to the point, the presumption was rebutted for some portion of those assets. Let me repeat an example that I used in Committee. Suppose that the drug trafficker could prove that £20,000 of shares that he held in company X had come to him indirectly from the will of his old aunt Euphemia, whose reputation in relation to drug trafficking was beyond reproach. He had therefore clearly rebutted the presumption that all of his assets had come from drug trafficking, and the £20,000 could not therefore be the subject of a confiscation order. In such circumstances, the man would receive a 10-year prison sentence and £180,000 would be the subject of a confiscation order. However, his family would have saved from the wreck the £20,000, because they had been able to establish that it had nothing to do with his histDry of crime. The Minister said, I thought rather doubtfully. that it would be possible to put such people in a catch 22 by using clause 44 and fining them £20,000. Although the offender had managed to use that tightly-drawn loophole, rebut the presumption and save some money from the confiscation order, he could then be told, "Your endless ingenuity, my man, has done you no good. I hereby fine you £20,000." If that is the theory on which we are being invited to put this power on the statute book, it does not seem to me to do much for the legal system or the courts. The more that I have thought about the matter, the more I have come to the conclusion that it would be better to do without it. I am not suggesting that clause 44 should go entirely. That might be going too far, and I am as anxious as anyone that the courts should have adequate powers to deal with cases involving controlled drugs. The effect of amendment No. 16—at least, I hope so; I am always a little nervous about my own drafting—would be to leave the courts, in cases relating to controlled drugs, with the power to impose fines. I feel that that is perfectly reasonable. However, it would be made clear that those fines could not be imposed when there had been a confiscation order under clause 1(1). This is not a wrecking amendment. If it were, it would not have been selected. It is not even an attempt to undermine the intentions of the Government. It is a perfectly reasonable amendment. I accept, and indeed support, the confiscation concept. I also think it right that, when there is no confiscation order, the courts should have the power to fine. However, I do not think that they should say, "We will get you with a gaol sentence and hit you with a confiscation order, and when you manage to avoid some of the consequences quite properly by using the legal machinery on the statute book, we will finally get you with a catch-all fine provision." That seems to be going too far. That is why I tabled amendment No. 16, and I hope that the Government will consider it favourably. The amendment would not in any way damage the power of the courts to deal properly and severely with drug offences. It merely makes it clear that the provisions and powers in clause 44 will not be available where a confiscation order has been imposed. There is the power to impose a fine under clause 1(1), but we object to the use of clause 44 and are attempting to strike at it in a way that I hope I have made reasonably clear`it is satisfied that it is appropriate to do so may impose a fine but such a fine shall not be imposed if an order under section 1(1) of this Act is being made'.
Perhaps I was too forthcoming in our debate in Committee on what was then clause 41. I remember it well. Referring in Standing Committee to subsection (5), the hon. Member for Glasgow, Garscadden (Mr. Dewar) said :
The hon. Gentleman then asked for "a fairly lucid explanation", after which he said:"I have read that only three times, but re-reading it has only added to my confusion."
However, in the next column he said:"I must be getting tired and old."
We have today covered much of the ground that was dealt with in Committee, and the hon. Gentleman has said nothing new to persuade me that we should remove the discretionary power of the High Court to impose a fine in addition to a compensation. order. I do not anticipate that this power will be used, except on rare occasions, but, as the considerations underlying the imposition of a confiscation order and a fine are quite distinct, there is no reason in principle why they should not be combined, if the High Court sees fit. A confiscation order is designed to remove the profits that the trafficker has gained from his illegal activities and to deprive him of assets that he should not have. A fine is, in general, a penalty that may be imposed as a punishment without reference to any profits made from the offence. Clause 1(3) ensures that if, exceptionally, the High Court decides to impose both a confiscation order and a fine, it must take account of the provisions of the order in determining the amount of the fine. The general requirement, that fines must take account of the offender's means, also applies. There is, therefore, no danger that the offender will be asked to pay more than he can afford. Apart from removing the High Court's discretion to impose a fine as well as a confiscation order, if it sees fit, the amendment also removes the requirement to impose the profit-related fine on drug traffickers that was introduced by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, to which the hon. Gentleman referred. This provision came into force on 30 December of that year, and by September 1986 it had been used on seven occasions. It will remain useful as an alternative to a confiscation order in the case of those traffickers who have derived some profit from their crimes but who have no extensive history of trafficking. This special type of fine relates to the profits of crime, but only from the crime or crimes of which the offender was convicted. I expect the courts to continue to use such fines in appropriate cases. This amendment is technically defective. It fails to address the consequences for the general scheme of the Bill that would follow, if it were accepted. Clause 1(3) would become redundant if the House accepted the amendment, and it would be impossible to make sense of clause 44(2) that refers to paragraph (a), which the amendment would delete. Therefore, for technical reasons and for important reasons of principle, I urge the House to reject the amendment."Yes, I now begin to see the intensity of the pursuit."—[Official Report, First Scottish Standing Committee, 28 April 1987; c. 136–38.]
I am not surprised by the Minister's reply. He said that in Committee I said that I must be getting tired and old. It must have been what the Minister said that did it, including the arguments that he used then that have been rehearsed again briefly this afternoon. Did I understand the Minister to say that the power to fine under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 will remain on the statute book and that it will be available as an alternative to the power to confiscate?
Section 193B of the Criminal Procedure (Scotland) Act 1975 that was inserted into that Act by section 39 of the Law Reform (Miscellaneous Provisions) (Scotland) Act is re-enacted by this clause.
I am grateful to the Minister. I see that the Minister's mind is made up, but his arguments are not convincing. He says cheerfully and with insouciance that the courts will impose a fine only when the accused is in a position to pay it. But the accused will be in prison if he has been convicted of a serious drugs offence, and his chances of being able to pay the fine, except in the circumstances that I have described, in which some assets have been left, despite the confiscation order, will be very few. We are piling penalty on penalty, and it does nothing for the system of which this House is the guardian.5.45 pm I am not content to let the matter rest there, but at this stage I have no other practical option. We shall be interested to see how useful the courts find these powers. If my suspicions are justified, they will turn out to be lumber in the basement of Scotland's statutes, to which reference will seldom be made. That argument will be settled by experience. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.