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Session 2004 - 05
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Standing Committee Debates
Serious Organised Crime and Police Bill

Serious Organised Crime and Police Bill

Standing Committee D

Thursday 13 January 2005

The Committee consisted of the following Members:

Chairman: Chairmen: Dame Marion Roe, †Mr. Bill O'Brien

†Baird, Vera (Redcar) (Lab)

†Blears, Ms Hazel (Minister for Crime Reduction, Policing and Community Safety)

†Brown, Mr. Russell (Dumfries) (Lab)

†Cairns, David (Greenock and Inverclyde) (Lab)

†Campbell, Mr. Alan (Tynemouth) (Lab)

†Clappison, Mr. James (Hertsmere) (Con)

†Clifton-Brown, Mr. Geoffrey (Cotswold) (Con)

†Djanogly, Mr. Jonathan (Huntingdon) (Con)

†Farrelly, Paul (Newcastle-under-Lyme) (Lab)

†Flint, Caroline (Parliamentary Under-Secretary of State for the Home Department)

†Grieve, Mr. Dominic (Beaconsfield) (Con)

†Griffiths, Jane (Reading, East) (Lab)

†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)

†Heath, Mr. David (Somerton and Frome) (LD)

†Heppell, Mr. John (Lord Commissioner of Her Majesty's Treasury)

†Mann, John (Bassetlaw) (Lab)

McWalter, Mr. Tony (Hemel Hempstead) (Lab/Co-op)

†Mitchell, Mr. Andrew (Sutton Coldfield) (Con)

†Taylor, Ms Dari (Stockton, South) (Lab)

†Ward, Claire (Watford) (Lab)

Alan Sandall, Committee Clerk

attended the Committee


[Dame Marion Roe in the Chair]

Serious Organised Crime and Police Bill

Clause 69

Financial reporting orders: making

Amendment moved [this day]: No. 201, in clause 69, page 40, line 14, leave out 'a magistrates' court or'.—[Mr. Djanogly.]

2.30 pm

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are taking the following amendments: No. 202, in clause 69, page 40, line 39, leave out subsection (6).

No. 203, in clause 70, page 41, line 2, leave out from first 'the' to 'Court'.

No. 204, in clause 70, page 41, line 18, leave out subsection (6).

Mr. Jonathan Djanogly (Huntingdon) (Con): This important issue, which I am sure all hon. Members will recollect, is not, unfortunately, addressed in the Bill. Basically, the Bill gives the courts the right to do whatever they like within a five to 20-year period for Crown courts and a five-year period for magistrates courts. That power needs to be further curtailed, even within the context of the list of offences in the clause.

I appreciate that it is a difficult issue. If someone is found guilty of obtaining property by deception, for instance, that does not necessarily mean that the amounts involved were significant. If very small sums were involved, a financial reporting order may be suitable for only a very short time, and it is questionable whether it would be suitable at all. Parliament should take more responsibility on this and the amendments set out our suggestions on how to go about that.

We have avoided formulae, or different terms for different crimes. Rather, we have looked at the court involved in the process, while bearing in mind that the Bill is meant to be about serious crimes. If the crime is dealt with by a magistrates court, where sentences must be for less than one year, the court should not have the right to issue financial reporting orders. Indeed, in deciding whether to send the case to a higher court, magistrates should bear in mind the likelihood that an order will have to be issued. Such orders are likely to be fairly difficult to get right, and one has to wonder whether the average magistrates court has the expertise to judge them. I should have thought that such things belonged in a Crown court.

Finally, there is the question of the practicalities. At present, the accused is asked before sentencing in a magistrates court to fill in a form outlining his income and expenses. In the real world, however, such forms are usually filled in lightly and in a rather haphazard
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way. For the most part, that does not really matter, because the vast majority of fines in a magistrates court will be minor. Indeed, that is the whole purpose of magistrates courts, which can hand out quick and cheap justice for mainly minor crimes. Introducing the concept of considering future finances could well be an administrative nightmare for the average magistrates court. For that reason, we have tabled the amendments.

Mr. David Heath (Somerton and Frome) (LD): I have some sympathy with the amendments, and I had intended to raise the issue in the clause stand part debate. I have no problem with the principle behind the financial reporting order procedure that the Government propose. The order is a potentially useful tool, but it is also a very substantial and potentially intrusive tool as far as an individual's privacy is concerned. It must be proportionate to the crime of which that person has been convicted.

The danger does not lie in the application of such orders by the Crown court, and we can be reasonably assured that the level of offence involved and the consideration given in such courts will be appropriate. Without in any way denigrating the powers or the responsibility of magistrates courts, however, the offences that are usually tried before them—irrespective of whether such offences fall within those listed in subsection (3)—are not such that one would normally consider a financial reporting order to be commensurate. There is a real issue of proportionality. The Minister may be able to convince me that there is a need for magistrates to have this power, but we need to hear that argument.

The same, of course, applies in Scotland. I think that the amendment to clause 70 tabled by the hon. Member for Huntingdon (Mr. Djanogly) is slightly defective in its phrasing, but nevertheless exactly the same arguments apply to the sheriff in Scotland, in relation to the level of criminality that is the subject of the trial.

Mr. Tony McWalter (Hemel Hempstead) (Lab/Co-op) rose—

Mr. Heath: I give way to the hon. Gentleman because he is such good value.

Mr. McWalter: I want to have just one more go without being slagged off, as I was this morning. It is obvious that a relatively trivial offence is sometimes the tip of an iceberg and creates a suspicion that the fact that a person has been caught with his hand in the till is not a one-off but part of a sophisticated operation that merits the name ''serious organised crime''. It is that suspicion that precipitates the provision that we are considering. Does not the hon. Gentleman understand that that is exactly what is needed to get to grips with what is happening in organised crime?

Mr. Heath: Even if I thought that ''slagging off'' was a parliamentary term, I am sure that I would never have applied it to the hon. Gentleman, but I understand his point: a process of investigation of serious crime often starts from a small beginning. However, he must understand that the penalty for someone else's major offence cannot be imposed on a
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minor offender. The person who, in his example, has inadvertently been trapped in a web of crime is the person who will be subject to a financial reporting order. That is where the proportionality issue arises. We may hear arguments from the Minister explaining why that should be, but I want him to consider whether, even in the instance suggested, the reporting order is appropriate to the level of criminality of the individual to whom it is applied.

That is the crux of the issue. We are not talking about Mr. Big making a report on his financial transactions, which would achieve exactly what the hon. Gentleman wants. We are talking about Mr. Little, who has been convicted of a minor crime, for which he may not even have received a custodial sentence, being required to fulfil the onerous responsibility of financial reporting on all his transactions for many years. We should think seriously about that when it concerns someone who has been convicted of a minor offence.

Mr. Djanogly: The hon. Member for Hemel Hempstead (Mr. McWalter) made a fair point, but in the example that he suggested, the magistrates court would refer the minor issue to the Crown court. It is a fair point. It does happen that small issues arise with important consequences. In that instance, the matter would be referred to the Crown court, so the issue remains valid.

Mr. Heath: That is a helpful intervention, and the hon. Gentleman is right. The court level at which a case is heard is a rough and ready guide to the severity and importance of the offence.

Mr. McWalter indicated dissent.

Mr. Heath: The hon. Gentleman shakes his head, but I shall not slag him off; I simply express disagreement with him.

Vera Baird (Redcar) (Lab): I should not have thought that anyone would want what the hon. Member for Huntingdon (Mr. Djanogly) recommends: the committal of cases that do not merit the attention of the Crown court for the sole purpose of ensuring that the power in question is available. That would just clog up expensive state apparatus unnecessarily. On the other hand, if magistrates courts were prevented from using the procedure, and never became aware of its availability, people could elect to be tried in the magistrates court for relatively serious offences to avoid such an order.

If there really is a need for some procedure, and if the magistrates themselves think there is a need for such an order, my best suggestion is that there should be a power to commit after conviction. The Crown court could then be the agent which puts it in place. However, as the magistrates will start to be trained quite soon by the Judicial Studies Board, I would have thought that the board could lay down guidance and the magistrates could be trusted with it.

Mr. Heath: I am grateful to the hon. and learned Lady. I see some merit in the mechanism that she describes, although she then suggests that its apparatus might be too cumbersome to ensure that it would only be used sparingly and with good reason.
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The last thing I want is to suggest that the magistracy is incapable of making appropriate decisions. We have to be wary of what is a substantial intrusion when added to the sentence already placed on the individual concerned. We need, and the court needs, to be assured that the severity of that additional penalty is appropriate to the offence committed and the offences that the court holds to be in danger of being committed later. That is what the Minister has to persuade us of.

Mr. Dominic Grieve (Beaconsfield) (Con): I am sorry that I missed the start of the debate this morning. I am conscious that the probing amendments were, perhaps, the result of my perusing the amendment paper and putting them forward for consideration. I was particularly struck by a remark by the hon. Member for Hemel Hempstead.

The Minister may be able to help me, but I have always expected that an order of this kind would be made when someone was thought to be participating in a pattern of dishonest activities. Therefore it was, as much as anything else, intended as a control mechanism against future reoffending. If it is to be applied to a small, insignificant offender whom the prosecutor thinks may be part of a wider web of criminal and dishonest conduct, nothing is more likely to alert that person to having to make alternative financial arrangements than to be told in court that, every three months, he would have to produce his documents and report to somebody. That made me begin to wonder whether it was ever likely that a magistrates court case would come into this category.

People are going to make alternative arrangements. I thought that the measure was a way of suppressing nexus crime. Having arrested someone, knowing full well that they have a serious criminal lifestyle—heaven knows we debated this at great length in the Proceeds of Crime Bill—we would want to impose a sanction that their financial affairs would be closely scrutinised in future. I did not see it as a way of unearthing something down the line, since most people will make alternative arrangements when faced with such an order if they want to continue being dishonest. They will also try to conceal those arrangements from the investigators. Of course they may be caught, but they can certainly attempt it, which is why I took that view.

I am mindful of what the hon. and learned Member for Redcar (Vera Baird) said about not wanting to have too many committals to the Crown court. That is certainly a powerful argument, and it might be worth considering whether committal could only take place at the Crown court for the specific purpose of imposing such an order. That is likely to impose a greater burden on magistrates. I am sure it is one for which they could cater, but one is left with the slight anxiety that, because it is quite a complicated area, we may start getting orders made in cases which are not strictly necessary. We must face the fact that this is an onerous sanction.

In the past 24 hours, we have been reminded that criminals have rights. I do not disagree with that view, and we must ensure that whatever we do is proportionate.
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2.45 pm
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Prepared 13 January 2005