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Fourteenth Standing Committee on
Thursday 20 March 2003
[Mr. Joe Benton in the Chair]
Draft Criminal Justice and Police Act 2001 (Powers of Seizure) Order 2003
The Parliamentary Under-Secretary of State for the Home Department (Hilary Benn): I beg to move,
That the Committee has considered the draft Criminal Justice and Police Act 2001 (Powers of Seizure) Order 2003.
It is good to see you in the Chair, Mr. Benton. The order has been seen by the Joint Committee on Statutory Instruments and, in my opinion, its provisions are compatible with the European convention on human rights. The order makes minor changes to the extensive list of powers of seizure under schedule 1 of the Criminal Justice and Police Act 2001. Part 2 of the 2001 Act, which comes into force on 1 April 2003, gives police officers and other investigators additional powers to seize property from premises and persons for examination elsewhere. The powers may be necessary because there is insufficient time to conduct an effective examination on the premises or because special technical equipment needs to be used that can only be made available elsewhere.
As hon. Members will recall, the provisions in part 2 were introduced to deal with the problem identified in the case of R v. Chesterfield Justices and Chief Constable of Derbyshire ex parte Bramley, which highlighted the difficulties faced by the police when material that they would be entitled to seize is contained within a large collection of material, some of which they might not be entitled to seize. That was the essential problem.
Provision has also been made in part 2 for the seizure and retention of inextricably linked material, such as the contents of an entire computer hard drive, when it is necessary to prove when specific items of information were created or amended. The legislation recognises that, with the huge increase in the use of computers, investigators must be able to seize and forensically examine an entire disc or hard drive to determine when individual documents were created, amended or deleted. As hon. Members will know, the new powers in part 2 are not free standing and can be exercised only in support of an existing power of seizure. The existing powers are listed in schedule 1 to the Act.
The draft order will be made under section 69 of the Act, under which my right hon. Friend the Home Secretary has the power to add to, modify and amend the powers of seizure listed in schedule 1 to the Act. That provides a mechanism to allow for changes to other legislation containing powers of seizure, which might need to be added to schedule 1 or amended. Since the 2001 Act received Royal Assent in May 2001,
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new powers of seizure have been created and existing ones amended by other legislation. All the order does is to tidy up the schedule to incorporate the changes that have taken place since the Act was passed.
The two issues that we are addressing as a result of talking to other Government Departments about new powers of seizure that have come into legislation since the Act was passed are the inclusion of the power of seizure conferred by paragraph 9 of schedule 5 to the International Criminal Court Act 2001 and amendments to the Copyright, Designs and Patents Act 1988, and the Trade Marks Act 1994.
I turn now to the amendments in the order. Articles 2 and 3 amend parts 1 and 3 of schedule 1 to provide for amendments to the Copyright, Designs and Patents Act 1988 and the Trade Marks Act 1994, which are needed because of recent changes made by the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002. As hon. Members will know, the 1988 and 1994 Acts cover offences relating to intellectual property, counterfeiting and piracy. We are all aware that those offences can lead to losses for industry and damage to society. Because of the changes that have taken place in this area of criminal activity, the greater attention that is being paid to counterfeiting goods and the greater prominence that brand names have in business, the Government supported a private Member's Bill in the last Session, which has now become the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002. That has, among other things, improved police search warrant provisions for investigations of intellectual property crime.
All the new search warrant provisions in the 1988 and 1994 Acts include the power permitting the police to seize evidence of an offence when conducting a search. Those improvements build on the provisions that were already in section 109 of the 1988 Act. There were some loopholes in the coverage of section 109 of the offences to which it relates, and those are closed by the 2002 Act.
Article 2 of the order also adds the power of seizure conferred by paragraph 9 of schedule 5 to the International Criminal Court Act 2001, which deals with the seizure of evidence in connection with offences under the Act. That power of seizure allows co-operation in investigations into the proceeds of ICC crimes, for the purpose of ascertaining whether an individual has benefited from such a crime, or in order to identify property derived from such crime. Search warrants issued under paragraph 9 allow a constable to enter and search premises, and to seize and retain any material that is likely to be of substantial value to the investigation.
Although the International Criminal Court Act 2001 does not apply to Scotland, in accordance with section 69(2) of the Criminal Justice and Police Act 2001, I have consulted the Deputy First Minister in Scotland on the order in view of the application of the Copyright, Designs and Patents Act 1988 and the Trade Marks Act 1994 to Scotland.
In conclusion, I do not believe that the provisions are contentious. They merely give effect, through part 2
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of the 2001 Act and schedule 1 to the Act, to the changes that have been made arising from the two pieces of legislation that I have described.
I commend the draft order to the House.
Mr. James Paice (South-East Cambridgeshire): I am grateful to the Minister for explaining an order that he rightly describes as not particularly controversial. However, I have one or two points that I would like to ask him about.
The first is a technical point. The Minister who signed the statement that the order is compatible with the European convention on human rights has now resigned. I am not sure whether a statement signed by someone who is not a Minister on the day that we approve the order is valid. May I ask you, Mr. Benton, or the Minister, for advice on that? I have only just noticed it, but it may be a technicality that has been overlooked.
The first substantive question that I wish to ask the Minister concerns time scales when property is seized. He has rightly described to us the importance of being able to seize computer equipment. Everyone has such equipment—it is used in all manner of activities now—and it is highly probable that if there is information that will be valuable to the police it will be held on computer. Computers are part and parcel of everyday life and business life, and therefore the seizure of a computer, computer equipment or a hard disc drive could cause immense difficulty to a business that was affected by that seizure.
The individual who is the subject of the investigation for the purposes of which the police want to examine the equipment may be an employee, and the computer may not belong to him. The current police investigation Operation Ore is an example of what I mean. I suspect, although I have no evidence, that a large number of the computers on which people are alleged to have accessed paedophile websites are owned by their employers. How long can the police realistically hold computer equipment while they carry out their investigation, and what recourse have owners of equipment—if they are not the individuals being investigated—to enable them to gain access to it, to get it back or to minimise the impact of its seizure?
The second point that I wanted to raise with the Minister relates to the copyright, designs and patents aspects of the order, in particular the common but worrying crime of copying audio and visual material—music, videos, and DVDs. We know that this is a common form of counterfeiting these days. I was not sure from the order whether that relatively new crime—especially in respect of videos and DVDs—would be directly affected by it. Are private individuals, many of them teenagers sitting in their bedrooms, who wrongly but perhaps understandably copy music from the internet likely to have the police charging into their bedroom and pinching their computer? There is no doubt that they are breaking the law, but it should be clear whether such activity will be covered by the seizure provisions. Will the Minister clarify the position?
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Obviously, aspects of the International Criminal Court Act are entirely sensible and wise. This is not a question, as you may rule me out of order if I directly ask the Minister for an answer, Mr. Benton. My point concerns whether the seizure of items is a read across from the Crime (International Co-operation) Bill that we are shortly to consider in the House. It may be something that the Minister will wish to consider, not necessarily now, but when we deal with the Bill, which is scheduled to be debated on Second Reading in a week's time.
I hope that the Minister can respond to my comments and two questions, but as he rightly says, the order is not particularly controversial and we should give it a fair wind.
Several hon. Members rose—
The Chairman: Order. Before I call the next speaker, the hon. Member for South-East Cambridgeshire (Mr. Paice) rightly referred to the validity of the signature of the former Minister. I should not like to rule on that, but the important aspect is that the right hon. Gentleman was the Minister at the time. I hope that that clarifies the position.