Clause 59
Restrictions on use of statements
Mr. Mitchell: I beg to move amendment No. 213, in clause 59, page 32, line 37, leave out 'criminal'.
The amendment, which was tabled by my hon. Friend the Member for Beaconsfield, who as the Committee knows has to be at a memorial service today, deals with a small but important point. I seek clarification of why ''criminal'' is included but the gamut of civil cases is not. If she can make that clear, I will happily withdraw the amendment.
Caroline Flint: The amendment would prevent a statement made under a disclosure notice being used against the person who made it in civil proceedings. Such statements will be made only in relation to documents or information relating to serious criminal offences and so will not routinely include information of relevance to civil proceedings.
The clause ensures that self-incriminatory statements made under the powers in chapter 1 cannot be used in criminal proceedings. That replicates the current safeguards on Serious Fraud Office powers, which have been thoroughly tested by the courts. The provisions are also consistent with the use of disclosure notices in asset recovery, where there is no bar on self-incriminatory statements being used in civil proceedings.
It is open to a court to decide not to admit a specific statement if there is no statutory prohibition on its admissibility, but we do not believe that it is necessary or desirable to provide an absolute prohibition on the use of such statements in civil proceedings. An example involving the SFO would be where it passes information to the Financial Services Authority to look at in civil proceedings on financial irregularities. I hope that that explains the situation and ask that the amendment be withdrawn.
Mr. Mitchell: I am most grateful to the Minister for her explanation. As far as I understand matters, I
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think that she has answered the point, but no doubt my hon. Friend the Member for Beaconsfield, with his legal training, will wish to examine her words. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Vera Baird: I have a short query, which I hope I am raising appropriately in connection with clause 59, which deals with excluding the fruit of any disclosure notice from criminal proceedings only, not from civil proceedings.
What the Minister said is absolutely right, but I have a concern. How does someone challenge a notice that they do not believe they should have been served with? I have not seen anything in the Bill to set up a procedure, so my point is wider than the one that the hon. Member for Sutton Coldfield made about challenging issues of privilege. If I do not believe that I possess documents that can be relevant to an investigation into Bloggs—perhaps because I have never met Bloggs or do not know who he is—how do I get such powers lifted? Do I have to go to court via a civil route, which would probably be a long route and could certainly obstruct criminal proceedings or an investigation?
I hope that the Minister can help, although she might be unable to do so straight away—I appreciate that my question might be a bolt from the blue. It is important that people know what they have to do to get out from under such draconian powers if, by any mischance, they are inappropriately applied.
Caroline Flint: My hon. and learned Friend makes an important point. We shall apply the same procedures, as I understand it, as the SFO. I ask her to bear with me while I obtain further details for her.
Vera Baird: My only concern was that if one does not accept the amendment tabled by the hon. Member for Beaconsfield and moved by the hon. Member for Sutton Coldfield—if the individual has to challenge a notice through civil proceedings—one wants all the material seized to be admissible in civil proceedings.
Mr. Heath: I am grateful to the hon. and learned Lady for raising that interesting point. An alternative question is whether information derived from the improper use of a disclosure notice would be admissible in either criminal or civil proceedings, despite the fact that it had been improperly obtained?
Vera Baird: That is another interesting point, which the Minister will have to consider too. It is not one that had occurred to me, but if I took some action after having received a disclosure notice and the court, or whoever, decided that it had been wrongly issued, the material in the hands of the police under the notice—assuming that they had seized it all—would not have been obtained under a disclosure notice and would therefore not be excluded from admissibility. They might be able to use it against me. That is a thorny problem.
Mr. Clifton-Brown: Is not the position as follows? If a member of SOCA goes to a person and says, ''I want these documents,'' and they say, ''No,'' clause 60
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comes into play, whereby the agency applies to a justice of the peace to obtain a warrant to obtain the documents. The ultimate arbiter of such matters, if there is a dispute, will therefore be the justice of the peace.
Vera Baird: Not necessarily, because a person faced with a notice might want to consider their position and argue the matter at that point. It is fairly invidious if the only way that they can deal with it is by being dragged to court under threat of having the bailiffs hammering on the door or the police breaking it down. I hope that there is a way of pre-empting an improper notice at an earlier stage than that. I take the hon. Gentleman's point, which is a good one, but I hope that that is not the only solution.
Mr. Clifton-Brown: In the present circumstances, presumably, the person would receive a caution from the police officer wanting to seize documents under other powers granted by other legislation, saying that if they do not produce the documents, those further powers could be used by going to court. Presumably there will be a similar caution in the present case: if the person does not comply with a disclosure notice, they may be required to do so by a justice of the peace.
Vera Baird: It is interesting. What about a situation where SOCA already has documents seized under a disclosure notice and believes that I—not necessarily the person from whom they have been seized, can explain them—so SOCA serves a disclosure notice on me, not demanding papers, so the enforcement provisions, including breaking down my door to obtain them, do not apply, but demanding that I give an explanation of the documents. If that disclosure notice is wrongly served, I do not have a remedy for it under the Bill. I am sure that there is a remedy to be given somewhere. The hon. Gentleman can see that the matter is quite complicated.
Caroline Flint: As I have said, I do not necessarily think that our position on the amendment is affected. We are resisting it, but I shall ensure that we give some more expansive responses to some of the issues and examples that my hon. and learned Friend raises.
Question put and agreed to.
Clause 59 ordered to stand part of the Bill.
Clause 60
Power to enter and seize documents
Mr. Heath: I beg to move amendment No. 173, in clause 60, page 33, line 44, at end insert
'in order to take possession of, preserve or prevent interference with the documents specified.'.
We now deal with the power to enter and seize documents. Clause 60(4) states:
''A person executing a warrant under this section may take other persons with him, if it appears to him to be necessary to do so.''
That is a permissive power. Presumably, not every person who might be involved in taking possession of documents is necessarily a constable—in fact, under the arrangements for SOCA, it is quite likely that such a person will not be a constable. I fully understand that it will sometimes be necessary to have other persons present in order to obtain the necessary
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information. One can easily envisage circumstances in which the information is held in electronic form, for instance, on a computer system, so that an expert or someone with greater expertise than the constable executing the warrant might have will be needed to access the information on the system. It is perfectly sensible to make it explicit that that is allowable under the law.
There is an oddity in subsection (10)(c), which provides that subsection (4) does not have effect in Scotland. My understanding is there is case law in Scotland covering exactly the circumstances that I have outlined: someone was taken as an accompanying expert, which raised a question in law in Scotland. I should be grateful if the Minister explained the position under Scottish law and why it is either not necessary or not advisable to give express permission for someone to accompany a person executing a warrant in Scotland.
My purpose in tabling the amendment is to make it explicit that the people who accompany the person executing the warrant must be there for the express purpose of ensuring that the information is obtained. I say that because it has become a regrettable practice in some areas of the police service for officers executing warrants to be, on occasion, accompanied by persons who are not in the police service, but who are there to record what happens either as entertainment or for the news. I find that reprehensible; it is completely inappropriate for members of the media to be advised in advance of the execution of a warrant and the entering of a person's premises so that they are there to film the door being broken down and the entry of the police. I have raised it in the context of other criminal legislation, and we have received assurances from senior police officers and others that the practice is discouraged. However, it happens.
John Mann (Bassetlaw) (Lab): I fundamentally disagree. Does the hon. Gentleman accept that the majority of the general public are keen to see such media coverage, such as the breaking down of drug dealers' doors, to build confidence in the process and in the idea that law enforcement agencies are doing their job properly?
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