Select Committee on Northern Ireland Affairs Minutes of Evidence

Government response to the Second Report, Session 2001-02, Financing of Terrorism in Northern Ireland: Interim Report on the Proceeds of Crime Bill, HC 628, submitted by the Home Office


  Thank you for your letter of 21 February. I have also received a copy of the Committee's Second Report of this Session, the Interim Report on the Proceeds of Crime Bill. I hope you will accept this letter as a response to the Report.

  I shall deal with your points in the order you raise them in your letter.


  We discussed this issue during the Report stage of the Bill on 27 February. I explained then that we are considering the position for the United Kingdom. It is important that the staff of the Agency, and those carrying out equivalent functions in Scotland, should be able to carry out their work without fear of intimidation or reprisal, in relation to themselves and their families.

  I also explained that we would take into account the current provisions for anonymity that apply to those who deal with members of the criminal fraternity. Anonymity is currently only available to police and Customs Officers in very limited circumstances, in relation to the investigation of terrorism. Civilian staff working for bodies such as the Crown Prosecution Service and the Serious Fraud Office do not have any statutory right to anonymity. But we are also aware that different considerations may apply to the situation in Northern Ireland, where there is provision for court-appointed financial investigators to use a warrant issued to them under a pseudonym.

  We are considering the issues and will announce our conclusions and bring forward any necessary amendment during the Bill's passage in the House of Lords.

Search warrants

  You are concerned that the Bill does not contain any provision to allow a senior officer to issue a search warrant in cases of urgency, as is provided for in Ireland.

  We have considered the matter, but we do not believe that such a provision is needed in the United Kingdom. Judges in the United Kingdom can issue search warrants out of hours and ex parte at very short notice. There has been no call by practitioners here for staff of the Agency to be authorised to issue warrants.

  I understand that the provision is rarely used by the Criminal Assets Bureau; there have only been six warrants issued by senior officers in the past six years. The provision was introduced because there are parts of Ireland where no judges would be immediately available to issue an urgent warrant. We do not believe this will cause any difficulty in the United Kingdom.

Criminal lifestyle

  With regard to your concerns on this issue, I should stress first that in civil recovery cases initiated by the Agency under Part 5 of the Bill, as in civil forfeiture cases pursued by the Criminal Assets Bureau, no conviction is necessary; indeed the Agency will only pursue civil recovery where there is no prospect of criminal proceedings. The issue in civil recovery is whether particular property is the proceeds of unlawful conduct, or represents the proceeds of unlawful conduct.

  The concept of a criminal lifestyle, by contrast, is being introduced for the purposes of the confiscation scheme (Parts 2,3 and 4 of the Bill). These Parts enable the courts to impose confiscation orders following a criminal conviction. The legislation envisages a two track confiscation scheme. Normally, the court will make a confiscation order equivalent only to the benefit the defendant derived from the particular offence of which he has been convicted.

  However, where the defendant is identified on conviction as having a criminal lifestyle, more far reaching powers of confiscation will be deployed. The court will assume unless he can show otherwise that property held since conviction or acquired during the six years preceding the commencement of the criminal proceedings, and expenditure incurred by him or her during the same period, represented his benefit from general criminal conduct and will make a confiscation order accordingly (subject to the defendant's available assets).

  A defendant will be found to have a criminal lifestyle if he satisfies any one of a number of conditions. Previous convictions are only relevant to one of those conditions. Defendants convicted in the current proceedings of an acquisitive offence of any description will be treated as having a criminal lifestyle if they have been convicted of an acquisitive offence of any description on two separate occasions in the last six years. The alternative triggers are that the defendant is convicted of a drug trafficking offence, or a money laundering offence, or an offence specified in regulations made by the Secretary of State (I made a provisional list available to the Standing Committee) or an offence committed over a period of six months or more. In none of those cases will previous convictions be necessary.

11 March 2002

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