Proceeds of Crime Bill

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Mr. Ainsworth: I hope that we are not going to get too silly in the new year. That is not the intended use of the power, which is meant to be intelligence-led. That is not the intended use of the power, which is meant to be intelligence-led. I have circulated a draft code of conduct—I do not know whether hon. Members have received it. It was dated 19 December and was issued soon after that day, if not on it, by the Home Office. It is just a draft, and if hon. Members have suggestions for its improvement, we would be happy to hear them. The draft states:

    ''In order to exercise the search power, an officer must have reasonable grounds for suspecting that cash meeting the conditions set out will be found.

    Whether there are reasonable grounds for suspicion will depend upon the circumstances in each case. There must be some objective basis for that suspicion based on facts, information and/or intelligence. The officer should take into account such factors as how the individual or the premises were identified, previous intelligence on persons or premises, previous involvement with the persons or premises, and suspected links with other criminal activity, whether here or overseas.''

I quote the draft code to give an idea of how the powers are meant to be used. We did not intend that they should be used in speculation. There must be reasonable grounds to suspect that a considerable amount of money is on the premises.

There is a raft of safeguards in other clauses in part 5 to ensure that, whenever appropriate, the constable has prior judicial approval for exercising the powers. If he believes that he can justify not being able to get

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prior judicial approval, he must get a senior officer's approval for the search. If he has reasonable suspicions that there is a cache of the sort of amount that we are considering, he can mount a search, but only if he can show afterwards that there was no prospect of getting prior approval.

Mr. Grieve: I am grateful to the Minister, and thank him for issuing the code. I saw it only in the past few days, but that is my fault. I expect that it arrived earlier than that, but I received it by a circuitous path via my secretary.

Subsection (1) states that a constable must be ''lawfully'' on any premises. That has a much wider meaning than getting prior authorisation and could, at a push, include an officer who is invited into premises to discuss parking problems in the street. If someone terminates that officer's right to be on the premises by asking him to leave, presumably the search would have to stop. Perhaps the Minister would confirm that.

Mr. Ainsworth: Just because the officer is lawfully on the premises, it does not mean that he has the right to discount the fact that he must have reasonable grounds to believe that there is cash on the premises. The provision prevents him from using the powers in the Bill to gain access to the premises; he must lawfully be there for some other reason in order to gain access to the powers in the Bill, not the other way round. That fact precludes the officer who is invited in for a cup of tea, in the hon. Gentleman's example, from deciding without reason to conduct a search. That is not possible.

There must be grounds to believe that there is cash on the premises, and the officer must be prepared to demonstrate those grounds before the search is carried out, or at least to justify the search afterwards. If he is asked to leave, he obviously cannot conduct the search. He must be lawfully on the premises in order to use the powers that will be granted.

We are introducing a power for the use of constables or Customs officers that we intend to be used in situations in which there are clear grounds for suspicion. In the main, it will be used for intelligence-led operations that allow the seizure of cash. The power is not meant to allow speculative searches in circumstances in which there is no justification. The current wording of the clause and the safeguards that exist in this part of the Bill ensure that the power cannot be used in that way.

The hon. Gentleman's grounds for concern are not founded. I ask him to accept that premise and withdraw the amendment.

Mr. Grieve: I am grateful to the Minister for his cogent explanations. He provided me with much reassurance. Philosophically, he and I approach the Bill from opposite directions. He has the underlying assumption that the powers that the Bill will confer will be properly exercised by virtue of the regulatory framework and the rules that are drawn up. As a Conservative, I believe that if one gives a person a power, at some point it is likely to be abused. One must examine the power from that angle as well as from that of a person who will exercise discretion properly.

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A considerable power is being extended. Above all, I am reassured by the Minister's comments in respect to the draft rules with which he provided the Committee. In such circumstances, I do not hesitate to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Grieve: I beg to move amendment No. 451, in page 167, line 29, at end insert—

    '(c) are exercisable by a constable in relation to subsections (2) and (3) only if he has reasonable grounds for suspecting that an offence has been committed.'.

The amendment addresses the searching of a person, rather than premises. A question arises about whether a search of a person carrying cash should be allowed unless there is a suspicion that an offence has been committed. As the Minister may acknowledge, because of the way in which the whole Bill is drafted, it is possible for a person to possess recoverable property or—perhaps less so—property intended for use in unlawful conduct if no criminal offence has been committed or is likely to be committed. I accept that it is more likely that a criminal offence would be contemplated if the cash were intended to be used in the course of unlawful conduct.

The insertion of paragraph (c) would provide reassurance that people who are not criminals would not be subject to searches. Unfortunately—or perhaps fortunately—the Government's intention is for the Bill to widen the net beyond people who are criminals or suspected criminals.

I should be grateful to hear the Minister's comments on the amendment, and I ask him to give careful consideration to whether it would provide protection from what could otherwise develop into an arbitrary power. However, in saying that, I am mindful of his comments about the draft rules with which he provided us.

Mr. Bob Ainsworth: The amendment would require a constable to have reasonable suspicion that an offence had been committed before he could exercise his powers to search a person for cash under clause 288. There would be no such limitation in relation to the search of a property and the limitation would not apply to a Customs officer. The ability for a constable to search a person using the power in clause 288 may currently be exercised when he has reasonable grounds for suspecting that a person is carrying cash that is recoverable property, or that any person intends to use it in unlawful conduct. In addition, the amount of cash must reasonably be suspected to be not less than the minimum amount.

The same conditions apply to Customs officers. However, subsection (5) currently provides that they may exercise the search power only if the unlawful conduct in question relates to a matter that is within their remit. The purpose of that is to make it clear that Customs officers are not being given a remit to involve themselves in other kinds of unlawful conduct.

With regard to constables, the amendment would require that the search power would be exercisable only if the officer has reasonable grounds for suspecting that an offence has been committed. In the

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case of cash that is suspected of being recoverable property, that must always be the case, as property is recoverable only if it was obtained through unlawful conduct, as set out in clause 246. There can be no suspicion of recoverable property without the suspicion that conduct unlawful under the criminal law is taking place.

In the case of cash that is suspected of being intended for use in unlawful conduct, an offence may have been committed in the past to generate that cash. However, the purpose of the provision is to focus on the use to which the cash is to be put, rather than on its history.

As I tried to explain in my comments on the previous amendment, the forfeiture of cash that is intended for use in unlawful conduct is an integral part of the cash recovery scheme. The amendment does not require that an officer has reasonable grounds for suspecting that a particular offence has been committed. However, if the intention is that the officer should have grounds to suspect that a specific criminal offence has been committed, that would not fit within the compass of the cash recovery scheme. Indeed, clause 247 makes it clear that property—including cash—that has been obtained through unlawful conduct does not have to be linked to a specific offence. It is not necessary to show that the cash was obtained through a particular act of unlawful conduct, so long as it can be shown to have been obtained through unlawful conduct of one kind or another.

Mr. Grieve: That is very helpful.

While listening to the Minister, I have realised that I could have drafted the amendment more precisely. I am concerned that this power might be used to stop an individual against whom no offence has been imputed, because I take on board the point that the cash, if it is recoverable property, is going to have an origin in an offence—although that could have been committed abroad, as much as at home. However, I am sure that he will acknowledge that the power under discussion is a parallel power to the civil recovery proceedings, which can be used against an individual who has a great stash of cash. The power under discussion provides a sort of summary way for police officers to lay their hands on that particular asset at the outset. I am worried that an innocent person—a person who has potentially recoverable property, in cash, in their possession—might be submitted to search procedures, when there is an alternative civil procedure recovery method that could perfectly well be adopted, thereby avoiding submitting them to such an indignity.

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