Proceeds of Crime Act 2002 (Amendment of Schedule 4) (Scotland) Order 2014 [Draft]
Good morning. I welcome members to the Justice Committee’s 19th meeting in 2014. I ask everyone to switch off completely mobile phones and other electronic devices, as they interfere with the broadcasting system even when they are switched to silent. No apologies have been received.
Yes, I have a cold; I have not changed my voice.
Agenda item 1 is consideration of the draft Proceeds of Crime Act 2002 (Amendment of Schedule 4) (Scotland) Order 2014, which is an affirmative instrument. I welcome to the meeting the Minister for Community Safety and Legal Affairs, Roseanna Cunningham, and two Scottish Government officials: Dr Lucy Smith, who is head of organised crime strategy; and Carla McCloy-Stevens, who is a solicitor in the legal directorate.
The minister will give evidence in advance of the debate. I understand that she wishes to make an opening statement.
Yes. Thank you, convener. I will make a brief opening statement to explain what brought about the statutory instrument.
The order is required to fix a lacuna, which is just a loophole—
But it is much posher.
It is a posher loophole.
It is a posher word.
The order is required to fix a lacuna that has recently arisen in the Proceeds of Crime Act 2002, which I will refer to as POCA.
Scottish courts can make confiscation orders against certain offenders under part 3 of POCA. In each case, the court must decide whether an offender has a criminal lifestyle and, if so, whether he or she has benefited from his or her general conduct. An offender is considered to have a criminal lifestyle if he or she is convicted of an offence that is specified in schedule 4 to POCA. Where that is the case, the court can assume that the offender’s income, expenditure and assets over the previous six years constitute or represent the offender’s benefit from his or her general criminal conduct for the purpose of calculating the amount to be confiscated, unless the assumption is shown to be incorrect or would otherwise result in a serious risk of injustice. That is basically how POCA works.
Schedule 4 to POCA lists a number of lifestyle offences, and the Scottish ministers can amend the list by order. In 2011, the Scottish Parliament approved such an order, which added to the list an offence under section 39(1) of the Consumer Credit Act 1974, concerning illegal money lending. The purpose was to target illegal money lenders who profit from exploiting vulnerable individuals and communities. However, the Consumer Credit Act 1974 was largely repealed by United Kingdom legislation on 1 April 2014. That included the offence provision in section 39; consequently, the offence was also removed from the list of lifestyle offences in schedule 4 to POCA.
The Scottish Government is committed to ensuring that schedule 4 to POCA continues to be an effective means of depriving criminals of the proceeds of their crime. The order aims to reinstate illegal money lending as a lifestyle offence. If approved, it will amend schedule 4 to respecify the offence in its new guise as an offence under section 23(1) of the Financial Services and Markets Act 2000, as that is the act that now authorises and regulates consumer credit-related activity.
Although the current hiatus in schedule 4 to POCA has not affected any on-going confiscation proceedings, the Crown Office and Procurator Fiscal Service both welcome the amendment that the Scottish Government proposes to make through the order.
Basically, a gap was opened up by virtue of Westminster legislation. We are simply moving to close that gap again, in accordance with what we as a Parliament already agreed a couple of years ago.
Thank you. As members have no questions, we will move on to the formal debate on the motion to approve the instrument. I invite the minister to move motion S4M-10291—
I—
I get to say this bit: that the draft Proceeds of Crime Act 2002 (Amendment of Schedule 4) (Scotland) Order 2014 be approved.
As no member wishes to speak in the debate, the question is, that motion S4M-10291 be agreed to.
I am sorry; I did not let the minister move the motion.
I think that I have to do so.
I move,
That the Justice Committee recommends that the Proceeds of Crime Act 2002 (Amendment of Schedule 4) (Scotland) Order 2014 [draft] be approved.
Motion agreed to.
Obviously, some of my tablets are kicking in. We could have fun. Thank you very much, minister.
As members are aware, we are required to report on all affirmative instruments. Are members content to delegate authority to me to sign off the report?
Members indicated agreement.
Previous
Attendance