Serious Organised Crime and Police Bill

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Mr. Djanogly: I beg to move amendment No. 214, in clause 60, page 34, line 10, at end insert


    (c) there shall be liberty to apply to the court granting the warrant by any interested party for the return of the original documents or device,'.

The amendment relates to powers to seize documents and devices and our need to consider how long they can be held for. It is aimed at providing some process whereby a third party, whose device or document has been seized, has a right to apply to a court to have that device or document returned. This is particularly relevant to a third party whose device or document has been seized by the investigating authorities and who needs it back to conduct valid business. As things stand, a third party cannot get their property back, and they should have the right to ask a court whether they can.

Caroline Flint: I understand the sentiments behind the amendment, but I believe they are covered by the Bill. Subsections (7) and (8) clearly set out the conditions under which prosecutors will decide whether documents or devices can be retained. An interested party seeking the return of a document or device can approach the prosecutor, who will determine whether retention is still justified under the subsections. If the person is not satisfied with the prosecutor's decision, it is open to them to go to court to seek judicial review of the decision or a civil order for the return of the documents or devices. Additionally, if the document or device is seized by virtue of part 2 of the Criminal Justice and Police Order Act 2001, the usual safeguards, including the ability to apply to a court for the return of documents or devices apply. We believe that that is sufficient, so I ask the hon. Gentleman not to press the amendment to a vote.

Mr. Djanogly: The Minister's judicial review would be a rather otiose procedure for the average businessman who wants his contract back, but I hear what she says, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 ordered to stand part of the Bill.

Clauses 61 to 64 ordered to stand part of the Bill.

Clause 65

Assistance by offender: immunity from prosecution

11 am

Mr. Heath: I beg to move amendment No. 174, in clause 65, page 36, line 34, leave out paragraph (e).

The Chairman: With this it will be convenient to discuss the following amendments: No. 175, in clause 65, page 36, line 36, leave out

    'or a person designated by him under subsection (4)(e).'.

No. 176, in clause 65, page 36, line 39, leave out

    'or a person designated by him under subsection (4)(e)'.

No. 178, in clause 66, page 37, line 19, leave out

    'or a person designated by him under section 65(4)(e)'.

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    No. 179, in clause 66, page 37, line 22, leave out

      'or a person designated by him under section 65(4)(e)'.

    Mr. Heath: We are now dealing with the new arrangements for providing immunity from prosecution. There are sound arguments for what is not quite plea bargaining but is of that ilk, in order to ensure co-operation in providing evidence.

    However, in respect of immunity from prosecution it is a substantial step, a significant undertaking, to say that someone will not be prosecuted for offences that they have, or appear to have, committed, to encourage them to provide evidence. Given that those offences may be against persons who might properly expect that their assailant will be brought before a court in due course, it is something that should be undertaken only in exceptional circumstances.

    The clause makes it clear that it is matter of exception, and I have no problem with that; the theory and purpose of the amendments is simply to provide that the authority for that decision—immunity from prosecution which, as I said, is a significant immunity—should be taken only at the highest level of the prosecution service, by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the Director of the Serious Fraud Office or the Director of Public Prosecutions for Northern Ireland, and not by a person designated by them for the purpose.

    It could be argued that the DPP is terribly busy and cannot deal with everything, but the statute places a lot of responsibilities directly on the DPP in person, and the proposal should be one of them. The decision should require his signature before immunity from prosecution is granted. I cannot understand why the Bill permits the designation of other prosecutors in the Departments. The Minister will need to assure me about the level of seniority at which those decisions will be taken and why it should not be expressly given to the DPP or his equivalent in the other investigating bodies.

    Caroline Flint: The hon. Gentleman reflects a valid concern that decisions about the granting of immunity, undertakings and the use of Queen's evidence agreements should be taken at senior level within the relevant prosecuting bodies. However, it is not practicable or appropriate for the individual directors to take all those decisions themselves. They need the ability to designate them to appropriately senior and experienced colleagues, but within a framework of guidance. We do not intend the powers to be made widely available to all prosecutors; the directors are best placed to ensure that those decisions are taken at the appropriate level and the clause provides for that.

    Given my assurances about how seriously we take the issues and about the framework of guidance, I hope that the hon. Gentleman will accept that there are adequate safeguards in the clause and will not press his amendment to a Division.

    Mr. Heath: The Minister is asking us to take a lot on trust in respect of the guidance that will be issued and the information that will be given later. Had she said that the level of seniority would go no lower than
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    the deputy I would have said, ''Fair enough; I can see circumstances in which it would be appropriate for the deputy DPP and deputies to the other senior prosecutors to take appropriate action.'' However, I still have concerns. I do not suggest that the DPP himself or his equivalent would negotiate the terms of an immunity, but simply that the responsibility for issuing that certificate should lie with the senior prosecutor at the end of the day, because it is a very significant step to take and it should be exercised only at the highest level. I do not intend to press the amendment at this stage, but I hope that the Minister can give further thought to the matter and indicate before Report the level of seniority that she expects to be specified in the guidance to which she referred. Then, I will be able to consider whether we need to explore the matter further. It is, as I think the Minister understands, a matter of some gravity. If it were not for the fact that we often give specific and personal responsibilities to the DPP, I might not be pressing it in this form. However, we do, so I think it not unreasonable that a prepared certificate and the grounds under which it will be issued should be put before the DPP for imprimatur before it is issued.

    That seems to be the appropriate way forward, so I beg to ask leave to withdraw the amendment.

    Amendment, by leave, withdrawn.

    Mr. Heath: I beg to move amendment No. 177, in clause 65, page 37, line 2, at end add—

      '(8) If evidence on the basis of information of any description given by a person to whom an immunity notice has been given is admitted to court proceedings, the court must be advised of the circumstances.'.

    The amendment deals with the consequences of evidence produced by a person who has been given an immunity notice. It builds on an assurance I was given on Second Reading that this is a matter of which the courts would, of necessity, be advised. I suspect that is so and simply need reassurance that when evidence has been derived from a person who has been given an immunity notice, the court will be aware of those circumstances before coming to a decision on trial.

    It is obvious that evidence from a person in such a circumstance has to be considered carefully regarding its probity and evidential value, given the considerable advantage that person has been granted by the state in return for giving the evidence. If someone liable to be convicted of serious offences has been given immunity from that potential conviction, a jury is entitled to be aware of that fact and to weigh the probability that such evidence may have been tainted by the expectation of immunity which has been granted. That is not to say the evidence will have no weight. It will be taken in the context of the trial of a whole, as a matter which should be properly taken into account by the court in reaching its decision.

    Mr. Mitchell: I am grateful to the hon. Gentleman for giving way, not least because this intervention enables me to avoid detaining the Committee by making a speech. We support his argument. Does he not agree that the situation he describes could lead to score-settling and so forth, and to evidence being tainted? It is important to hear from the Minister why
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    the concerns set out in this amendment should not be detaining the Committee.

    Mr. Heath: I am grateful to the hon. Gentleman for his support. I think the point is clear and needs no greater illumination. It is simply a matter of whether it is already covered by court procedure and rules of evidence, and whether we should be satisfied by that.

    Vera Baird: I wonder whether the hon. Gentleman should not go further and say that it ought be a requirement that the immunity notice of any prosecution witness must be served on the defence. These notices will have conditions on them. A condition may be that he gives evidence against Vera Baird, and on trial I would want to know that—and want my counsel to be able to make full use of that.

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    Prepared 13 January 2005