Proceeds of Crime Bill

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Mr. Grieve: I share the hon. Gentleman's view. I accept that the only person present at the first hearing might be the person from whom the cash was seized. However, in some cases, another person might be able to provide a rapid and easy explanation about the cash—for example, he might have entrusted it to the person from whom it was seized to effect a transaction.

Mr. Davidson: Ha.

Mr. Grieve: The hon. Gentleman wants to ask who hands £35,000 to somebody to go and carry out a transaction. Before he does so, I remind him that instruments that are in common commercial use are covered by this measure, such as cheques, banker's drafts and bearer bonds.

A bearer bond might be worth a substantial sum, and a first person might hand it to a second person to complete a transaction: if that has happened, it seems odd that the first person might not be allowed to make a representation at the earliest possible stage. It could be argued that that person could equally easily contact the police, or Customs and Excise, and say, ''Here is the documentation to prove that that is my money.'' We must allow for the fact that Customs and Excise and the police sometimes get it wrong. Otherwise, there would be no need for any form of judicial reviewing of their decision making. It is difficult to see why the provision should not be included and I hope that the Minister will consider it.

Mr. Mark Field (Cities of London and Westminster): I entirely endorse the comments made by my hon. Friends the Members for Surrey Heath and for Beaconsfield, and the sensible suggestion of the hon. Member for Orkney and Shetland.

Our worry is that the provision is rather strict. It provides no opportunity for a third party to give an explanation. I appreciate that—given the narrow time frame and the nature of the bureaucracy that will inevitably surround such a system—it would be difficult to oblige the authorities to ensure that every person who may have been affected is contacted. However, when moneys have been seized, it is probable that any third party will be put on the back foot. To counter an initial court hearing, that third party then has to try and prove the case in an entirely different way.

I am interested to hear how the Minister envisages the system working. A third party who has a good explanation stands to lose significant sums in the way that my hon. Friend the Member for Beaconsfield described. A person who passed on a bearer bond or a banker's draft may find that a prolonged delay puts him in a position of financial embarrassment. If such an individual would not have any locus standi at the initial investigation, how does the Minister envisage the system working?

Mr. Ainsworth: I am a little worried that I am arguing against a pre-determined decision to vote on the matter. There is no issue of substance between us. We do not intend to provoke people and bring in the rules of court to prevent them from making representations at the initial hearing. We will not insist that the court gives the right to every person affected at the initial hearing because, logistically, that

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is not possible. A person will have the right to make representations to the initial hearing. He will also have the right to make representations to the Customs or police officer prior to that hearing. We intend to insist that all those affected are given notification and have the right to make representations at all subsequent hearings.

As I have said, there is not an issue of substance between us. We are talking about a methodology in terms of whether the provision is written into the Bill or included in the rules of court. The only other issue is that of logistics. I think that hon. Gentlemen accept that it is not logistically possible for the court to notify every affected person within the 48-hour period.

Mr. Carmichael: That point is accepted. However, can the Minister show me the part in the proposed new subsections (4A) and (4B) that would require the court to do that?

Mr. Ainsworth: No, I cannot. As I said, we intend to include such a provision in the rules of court to ensure that everyone has the right to make representations at all subsequent hearings and not to exclude that right at the initial hearing.

Mr. Hawkins: The Minister is right. There is a dispute between us in terms of methodology, but he may have slightly misunderstood the hon. Member for Orkney and Shetland. The amendment would not oblige the court to try to find people. It states that, if a person is aware, he should have the right to make representations. We are saying that that provision should be written into the Bill, not merely in the rules of court.

Mr. Ainsworth: Perhaps I have misread the amendment, and if that is the case, I will make the hon. Gentleman aware of it. However, with my stated intention as to how the provision will apply, I hope that he does not see a necessity to push it to a Division now.

Mr. Carmichael: The hon. Member for Surrey Heath put his finger on an important point about what the Minister said about making provision and rules of court. In Scotland, that will be done by Ministers through Acts of Sederunt promulgated by the president of the Court of Session. I believe that it is a matter of sufficient importance. It is a fundamental principle that when someone is and is not entitled to appear should be specified in the Bill, not by statutory instrument.

Mr. Ainsworth: The hon. Gentleman makes a point on which it is worth reflecting, and I assure him that I shall reflect on it.

11 am

Mr. Hawkins: I appreciate that the Minister will reflect on the matter, but I believe that he has genuinely—I make no accusation—misunderstood our intention in proposing new subsections (4A) and (4B). To reinforce his intention to consider the matter further, I should like to press the amendment to a Division.

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Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 12.

Division No. 23]

AYES
Carmichael, Mr. Alistair Field, Mr. Mark Grieve, Mr. Dominic
Hawkins, Mr. Nick Tredinnick, Mr. David Wilshire, Mr. David

NOES
Ainsworth, Mr. Bob Clark, Mrs. Helen David, Mr. Wayne Davidson, Mr. Ian Harris, Mr. Tom Lucas, Ian
McCabe, Mr. Stephen McGuire, Mrs. Anne Robertson, John Stinchcombe, Mr. Paul Stoate, Dr. Howard Watson, Mr. Tom

Question accordingly negatived.

Amendments made: No. 326, in page 170, line 41, leave out from beginning to 'is' and insert 'with which the cash'.

No. 327, in page 171, line 1, leave out subsection (6).

No. 328, in page 171, leave out lines 8 to 11 and insert

'that there are reasonable grounds for suspecting that the cash is intended to be used in unlawful conduct and that either—

(a) its continued detention is justified while its intended use is further investigated or consideration is given to bringing (in the United Kingdom or elsewhere) proceedings against any person for an offence with which the cash is connected, or

(b) proceedings against any person for an offence with which the cash is connected have been started and have not been concluded'.

No. 445, in page 171, line 11, at end insert—

'(7A) An application for an order under subsection (2) may also be made in respect of any cash seized under section 293(1A), and the court, sheriff or justice may make the order if satisfied that—

(a) the condition in subsection (5) or (7) is met in respect of part of the cash, and

(b) it is not reasonably practicable to detain only that part'.—[Mr. Bob Ainsworth.]

Clause 294, as amended, ordered to stand part of the Bill.

Clause 295

Interest

Amendment made: No. 446, in page 171, line 17, at end insert—

'( ) In the case of cash detained under section 294 which was seized under section 293(1A), the customs officer or constable must, on paying it into the account, release the part of the cash to which the suspicion does not relate'.—[Mr. Bob Ainsworth.]

Mr. Hawkins: I beg to move amendment No. 417, in page 171, line 18, leave out subsection (2).

The purpose of the amendment, which was, once again, helpfully drafted by the Law Society of Scotland, is to explore with the Minister the purpose of the exception in subsection (2). I appreciate that banknotes might have fingerprints on them and might be required as exhibits in a court case. Perhaps that is the reason for subsection (2)—the Minister will tell us in a moment. If it is not, we would be concerned that there should be any other reason why any cash, even if it is involved in another case, should not bear interest.

We agree with the main provision of subsection (1).

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We believe that it is right to put such cash in interest-bearing accounts so that interest is added if the cash is subsequently released. I am not merely probing, and I should like to hear what the Minister says on the subject.

Mr. Ainsworth: I shall apply my non-lawyer's untidy mind to the hon. Gentleman's question.

The amendment would require the police and Customs to pay all cash seized under clause 293 into an interest-bearing account. That would result in the original cash being lost in every case. In most circumstances, the cash will be paid into an interest-bearing account, thus accruing interest as compensation for cash that is released and not ultimately forfeited. The Government recognise that that is an important protective measure. However, we do not accept that the provision should override the powers provided under the Police and Criminal Evidence Act 1984, which allows material that has evidential value to be retained for an investigation or trial.

The same principle should apply if cash is needed as evidence in detention and forfeiture proceedings brought under chapter 3 of part 5. It is not difficult to foresee circumstances in which seized cash will have evidential value. In such cases, the cash will need to be retained for that purpose. Indeed, PACE requires as much for material seized under that legislation. The most obvious example is one in which traces of drugs—or fingerprints, as the hon. Gentleman said—are present on the cash. In such circumstances, the police and Customs will need to retain the cash as evidence.

The cash may be needed as evidence in proceedings under the scheme. For example, the amount and the form of the cash may be disputed. In such circumstances, the court may require the cash as evidence on that point. The same approach is taken in the equivalent scheme for terrorist cash in paragraph 4(3) of schedule 1 to the Anti-terrorism, Crime and Security Act 2001.

If the cash is not ultimately forfeited, compensation to the value of the lost interest—and more, in exceptional circumstances—will still be available under clause 300. The hon. Gentleman may have misunderstood that. I have tabled a Government amendment to clause 300 to make that explicit. There is a safeguard for the cash, even if it is not paid into an interest-bearing account because it is retained as evidence. In light of that, I hope that he will withdraw the amendment.

 

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Prepared 10 January 2002