Mr. Hawkins: The Minister satisfied me by mentioning banknotes that might have traces of drugs on them. That was the point to which I was referring. If banknotes are to be retained as exhibits in a trial, there is reason to have them available.
The Minister has reassured me about the aim of the provision. It might have been made clearer if subsection (2) had mentioned using cash as exhibits. Perhaps he will consider the matter. I have looked at the Government amendment to clause 300, and as he rightly says, it provides a further safeguard. I ask him
Column Number: 867
to reconsider whether the wording would be clearer if exhibits were mentioned as an example of—although not as the exclusive reason—why cash might be retained. We may return to the issue, and the Government should consider tabling a further amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments 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'.
No. 447, in page 171, line 18, after 'cash' insert
'or, as the case may be, the part to which the suspicion relates'.—[Mr. Bob Ainsworth.]
Clause 295, as amended, ordered to stand part of the Bill.
Release of detained cash
Mr. Grieve: I beg to move amendment No. 458, in page 171, line 25, after 'seized', insert
'or by a person claiming ownership of the cash and without objection from the person from whom the cash was seized'.
The Chairman: With this it will be convenient to take the following:
Government amendments Nos. 331 and 333
Amendment No. 419, in clause 297, page 172, line 17, leave out 'other than' and insert 'including'.
Amendment No. 461, in clause 298, page 172, line 35, after 'cash', insert
'or any person claiming that any cash detained under section 294 belongs to him'.
Government amendment No. 336.
Government new clause 9—Victims.
Mr. Grieve: We are still on the subject of who can make application for the release of cash. Clause 296 provides that while cash is detained under clause 294, it is possible to make application to the court for the release of that money. Under clause 296(3),
''The condition is that the court or sheriff is satisfied, on an application by the person from whom the cash was seized, that the cash to be released—
(a) is not recoverable property, and
(b) is not intended by any person for use in unlawful conduct.''
I was puzzled by that, although I understand the background to it, as the one thing that the court will not want to get involved in at such a stage is the question of who owns the property. Otherwise, a situation might arise in which it would have to decide to whom it should release the money. However, there might be circumstances in which the person in possession of the cash when it was seized would have no objection to another individual making the application, because he was claiming no proprietorial interest in that cash whatever.
The amendment would allow the owner of the money, with the consent and agreement of the person
Column Number: 868
from whom it was seized, to make the application. I hope that that might commend itself to the Minister, and I shall be grateful for his comments. It seems to me that it is a minor alteration that might simplify the process.
Amendment No. 419 relates to clause 297, and deals with the question of forfeiture. Under clause 297, while cash is detained under clause 294, an application for forfeiture may be made. Subsection (4) provides that
''Before making an order under subsection (2) in respect of any cash, the court or sheriff must give any person (other than the person from whom the cash was seized) who claims that it belongs to him an opportunity to be heard.''
I suspect that the Minister and I are working along identical lines. However, I hope that he will forgive me if I find the wording of the clause slightly odd. I would have thought that the provision should include the person from whom the cash was seized, and the Law Society of Scotland came to exactly the same conclusion. Will he clarify the matter?
I think that the reason why the clause is so worded is that it is the person other than the person from whom the cash was seized who claims that it belongs to him. Otherwise, an assumption will be made that the person from whom the cash was seized is the person to whom it belongs. I wonder whether the amendment would improve that wording.
Amendment No. 461 relates to clause 298 and appeal against forfeiture. Currently, the clause states:
''Any party to proceedings in which an order is made under section 297 for the forfeiture of cash who is aggrieved by the order may appeal''.
The amendment would make it clear that that includes a person who claims that cash detained under clause 294 belongs to him. Again, it would ensure that a person who claims to own the cash has an opportunity to appeal, as well as the person who was found in possession of it.
I am mindful that the Minister wishes to amend clause 296, which may cause a new interrelationship between my amendments and his. However, the points that I made are valid and I hope that he will respond to them positively.
Mr. Ainsworth: Amendments Nos. 458 and 461 would make provision for a person who claims ownership of the cash, but who is not the person from whom the cash was seized, to make an application for the release of the cash under clause 296. Such a person would also have the right to appeal to a Crown court against a forfeiture order. The clause currently provides that only the person from whom the cash was seized may apply for its release. That will remain the case if the Government amendments are accepted.
New clause 9 will provide that a person who claims that some or all of the cash seized under clause 293 rightfully belongs to him and that he was deprived of it through unlawful conduct may also apply for the release of the cash. However, there would be no explicit provision, even after amendment, for a person who claims to be the rightful owner of the cash and who is neither a victim nor the person from whom the
Column Number: 869
cash was seized to make an application. The Bill limits the right of appeal to those who were party to the forfeiture procedures. That would include a victim who made an application under new clause 9 if he were joined as a party to the proceedings and the person from whom the cash was seized. However, it would not include a claimed true owner or a victim who did not make an application under new clause 9.
The cash recovery scheme is designed to allow forfeiture of cash that a court is satisfied is either recoverable property or intended for use by any person for unlawful conduct. The scheme will take the cash out of circulation and disrupt the unlawful conduct with which it was connected. The purpose of the proceedings is not to identify the ownership of the cash but to decide whether the cash is the result of unlawful conduct or intended to be used for unlawful conduct. The scheme has been designed in such a way that the magistrates court or sheriff should not generally be involved—the hon. Gentleman indicated that he was aware of what we were trying to avoid—in arguments about the ownership of the cash. The only exception to that general position is the specific provision that is made for victims.
The amendment is, of course, carefully worded and makes it clear that a claimed true owner has the right to make an application only if the person from whom the cash was seized does not object to that person applying for the release of the cash. The fact that the person from whom the cash was seized does not object does not guarantee that there is no dispute about the ownership. It guarantees simply that there is no dispute about the ownership between the person from whom the cash was seized and the claimant. For example, there may be more than one claimant. The intention was not to require the court to become entangled in such considerations of ownership.
The equivalent cash recovery scheme under the recent Anti-terrorism, Crime and Security Act 2001 has no provision for claimed true owners to make an application for the release of cash. There is no reason why the provisions under the Bill should be different from those under that Act. If the person from whom the cash was seized was transporting it for another person, it would be open to the person from whom it was seized to make an application on the latter's behalf. The true claimed owner would also be able to make representations at a detention hearing by virtue of clause 294.
It would also be open to anyone to approach the seizing officer to make representations outside the court process. If there were a true owner and the cash was not forfeitable, neither the police nor Customs and Excise has any interest in detaining it. If it was not forfeited, any claimed owner could seek compensation under clause 300, which includes the right to compensation for persons covered under the amendments. The court is focused on whether the
Column Number: 870
cash is recoverable property or intended for use in unlawful conduct.
New clause 9 provides a specific exemption in respect of victims of unlawful conduct who claim rightful ownership of the cash. Amendment No. 461 would allow a person who claimed that the cash forfeited under clause 297 was their property to appeal against the decision of the primary decision-making body. That would be regardless of whether that person had previously been a party to the proceedings. It would be highly unusual to give a right of appeal to a person who was not party to the proceedings that had given rise to a decision that is subject to appeal. If amendment No. 458 were accepted, there would be the potential for such a person to have become a party to the proceedings and to have the right to appeal if the application had been made. However, in those circumstances, amendment No. 461 would not be required.
I ask hon. Members not to press amendment No. 461 to a Division. With respect to amendment No. 458, I shall review the position of the claimed owner's ability to apply for the release of cash and to become party to the proceedings in light of the arguments that the hon. Gentleman has advanced today. If appropriate, I shall table an amendment on Report.
Amendment No. 419 would allow a person from whom cash was seized to make representations to a court during the course of a forfeiture hearing that the cash belongs to him. That would have an odd effect, because the point of subsection (4) is to make provision for the court to return cash to a victim who had been deprived of it by unlawful conduct, when it is determined that the money is liable to forfeiture.
Government amendments Nos. 333 and 334 and new clause 9 will make it clear that a person who claims to be a victim can apply for the release of the cash at any time during the proceedings, rather than having the right to be heard only at a forfeiture hearing.
The amendment would not have a sensible effect, but I understand the concern that may lie behind it, in that all parties in the proceedings should have the right to make representations and to be heard. The person from whom the cash was seized will be a party to the proceedings, and as such will be guaranteed an opportunity to make representations at the forfeiture hearing. That will be achieved by rules of court that will apply section 53(2) of the Magistrates' Courts Act 1980, which provides that the court—after hearing the evidence—and the parties will make the order for which the complaint is made, or dismiss—
It being twenty-five minutes past Eleven o'clock, the Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.
Column Number: 871
The following Members attended the Committee:
O'Brien, Mr. Bill (Chairman)
Ainsworth, Mr. Bob
Clark, Mrs. Helen
Field, Mr. Mark
Harris, Mr. Tom
Johnson, Mr. Boris
Column Number: 872