Proceeds of Crime Bill

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Ian Lucas (Wrexham): Will the hon. Gentleman clarify why he considers that Scottish Ministers should be involved in individual applications to the court?

Mr. Hawkins: There have been many changes in Scottish law as a result of devolution. The amendment is a probing amendment on behalf of the Law Society of Scotland. I am not a member of that, but if it feels sufficiently strongly to say to the official Opposition that it thinks that such matters are worth exploring, it is reasonable for such a professional body to be taken seriously.

Mr. Paul Stinchcombe (Wellingborough): Will the hon. Gentleman explain why the Law Society of Scotland is in favour of the amendment?

Mr. Hawkins: I am not a Scots lawyer. I can do no more than probe into such matters on behalf of the Law Society of Scotland. If I were an expert on Scots law, I might be able to give the hon. Gentleman a better answer than that. He and I are both English barristers, and we have had some arcane disputes on matters of principle in respect of English law. I have explained the basis of the amendment, but it is slightly difficult for me to pretend to have expertise in Scots law. The fact that the Government have matched some of the other amendments to the clause proposed by the

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Law Society of Scotland suggests that the society may be on to a good point. I shall listen with interest to the Minister, who will have been advised by his officials, who would, in turn, have talked to Scottish lawyers. The hon. Gentleman and his officials may themselves have talked to the Law Society of Scotland. The hon. Member for Orkney and Shetland may have views on the matter, so I shall end my remarks now.

Mr. Ainsworth: Clause 294 deals with the detention of seized suspect cash. It provides that cash can be held initially for 48 hours by a customs officer or a constable if reasonable grounds for the suspicion that justified the seizure of the cash remain. If cash is to be detained for longer than 48 hours, an application must be made for judicial authorisation for that continued detention. As for Scotland, the Bill provides that the application for continued detention is to be made by the procurator fiscal for a period of up to three months in the first instance. In England and Wales, a constable or an officer of Her Majesty's Customs and Excise would make the application.

The main purpose of the provision as it is drafted in relation to Scotland is to give the procurator fiscal time in which to investigate further the derivation of the cash.

Mr. Carmichael rose—

Mr. Ainsworth: It may help the hon. Gentleman if I continue. Things that I say may impact on the burden of his arguments, because other issues arise in this case.

We will give the procurator fiscal time in which to investigate further the derivation of the cash and to consider whether criminal proceedings should be brought against a person for an offence with which the cash is connected. Amendment No. 411 would provide that Scottish Ministers, rather than the procurator fiscal, would apply to the court for the cash to be detained in the first instance and at all future detention hearings.

Clause 294 is modelled on the provisions in section 42 of the Drug Trafficking Act 1994, which deal with the seizure and detention of suspect cash on import or export. Under the Act, the local procurator fiscal makes the application to the sheriff for the detention of cash. The reason for that is that the case must be referred to the procurator fiscal in the first instance because he will consider, on the basis of evidence, whether a criminal prosecution would be appropriate, rather than the cash detention and forfeiture procedure.

The need to consider whether criminal prosecution is appropriate will apply equally to the new cash seizure provisions in the Bill. It is essential that the case be referred initially to the procurator fiscal. His role cannot be usurped. Prosecution must always be considered first. That is consistent with the proposed hierarchical operation of the legislation: criminal confiscation and criminal action comes before we encounter seizure, forfeiture or civil cases under part 5. It would be inappropriate to pass that responsibility to Scottish Ministers as the amendment proposes.

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If the procurator fiscal decides to pursue a prosecution, clause 294 makes provision for the cash to be held pending the conclusion of the criminal proceedings. If the procurator fiscal concludes that a criminal prosecution is not feasible, the matter passes to Scottish Ministers who, under clause 297(1), would be responsible for applying to the sheriff for the forfeiture of the cash when that was appropriate. That is because the forfeiture of seized cash is a civil procedure, and it is appropriate for Scottish Ministers, rather than the procurator fiscal, to pursue that.

However, one point must be addressed. If the procurator fiscal decides that criminal proceedings are inappropriate, it may be necessary for Scottish Ministers to undertake further investigation of the derivation of the cash before making an application for forfeiture. In such circumstances, it would be appropriate for any application for further detention to be made by Scottish Ministers because the procurator fiscal would no longer be involved in the case. That situation does not arise in England, Wales or Northern Ireland because the police or customs officers undertake the proceedings at all stages. We plan to table an amendment on Report to address that point.

I hope that the hon. Member for Surrey Heath will be satisfied with that explanation and will withdraw his amendment, and I hope that I have outlined the situation sufficiently to allow the hon. Member for Orkney and Shetland to make whatever points he wishes on the back of the amended intention of the Bill.

Mr. Carmichael: The wonderful thing about the Law Society of Scotland—or indeed, the Law Society, as we in Scotland prefer to call it—is that the manner in which it acts is not immediately apparent to those of us who are not privy to its inner counsels. However, it does eventually become clear. The Minister's helpful explanation has made it clear why the Law Society might want to make the amendments. My concern is that his explanation strikes at many other confusions in the Bill, which are more fundamental than what is before us today.

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My initial question was: why should the procurator fiscal be charged with executing functions under this passage in the Bill when the Lord Advocate, who is a Scottish Minister, is more widely empowered in part 5 and other parts? The Minister explains that that is because criminal proceedings might arise from the detention of cash. That is an inevitable consequence of the unhelpful confusion brought about by clause 293 (1)(b), which states that an officer may seize cash if he suspects that it is recoverable property or is

    ''intended by any person for use in unlawful conduct.''

We have previously highlighted our concern that these are completely different species. It is not helpful to provide one power to deal with both.

I see the force of what the Minister says, but I am unhappy that the powers of the procurator fiscal in investigations of crime are being so profoundly confused with powers that relate to the forfeiture and confiscation of the proceeds of crime. In most

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instances, the procurator fiscal would bring an application on behalf of the Lord Advocate in a sheriff court in any case. I cannot imagine, for example, that if an application were brought before the sheriff at Wick, or even Kirkwall or Lerwick, one of the Lord Advocate's solicitors from Edinburgh would go to the necessary court. The local procurator fiscal would bring it. I would argue that it would be more appropriate for him to bring it in the name of the Lord Advocate, a Scottish Minister.

All investigation of crime in Scotland is made on the instruction of the Lord Advocate. The Minister is concerned about whether the power to investigate crime would still be available if the applications were made to a Scottish Minister, or, more specifically, to the Lord Advocate, rather than the local procurator fiscal.

The Minister made a good point about the powers of Customs and Excise. However, I fear that those are not the most helpful of powers and they are probably wrongly drafted. Under the Scottish criminal justice system, Customs and Excise effectively acts as an investigating authority. It has no prosecution powers, and it reports to the procurator fiscal, who brings a prosecution. It would have been more appropriate if our predecessors in other Committees had given the power to Customs and Excise officials, rather than procurators fiscal.

I did not follow what the Minister said about forfeiture, and I wonder whether he meant forfeiture post-conviction—but that is of no great importance. The Law Society has drafted a useful probing amendment, and I hope that it will be given further consideration between now and Report.

Mr. Ainsworth: The hon. Gentleman is raising issues that, I am told, are relevant only north of the border. Customs officers and constables have civil powers and responsibilities as well as criminal ones, so there is no impact in Wales and England, where they will exercise those powers. I think that his point may have been covered. However, I am certain that the Law Society of Scotland will examine my comments, and consider whether it is satisfied that it is appropriate for the procurator fiscal to be involved at that stage, because of the hierarchical nature of the Bill, and Scottish Ministers afterwards. If that is not the case, I am certain that it will make further representations, and, clearly, we will consider them.

Mr. Carmichael: I am not sure whether I am intervening on the Minister, or he was intervening on me.

Mr. Ainsworth: You are intervening on me.

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