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Session 2007 - 08 Publications on the internet General Committee Debates Counter-Terrorism Bill |
Counter-Terrorism Bill |
The Committee consisted of the following Members:Chris
Shaw, Mick Hillyard, Committee
Clerks
† attended the
Committee
Public Bill CommitteeTuesday 13 May 2008
(
Morning
)
[Edward O’H ara in the Chair]Counter-Terrorism BillClause 33Forfeiture:
other terrorism offences and offences with a terrorist
connection
10.30
am
Mr.
Dominic Grieve (Beaconsfield) (Con): I beg to move
amendment No. 173, in
page 22, line 44, leave out from
‘terrorism’ to end of line
46.
Good
morning, Mr. O’Hara, and may I welcome you back to
the Chair for our consideration this week? Under the part of the Bill
dealing with the forfeiture of terrorist property—provided for
originally in clause 32 —the intention is to confiscate
property after conviction if it has
“been used for the purposes of
terrorism”
or
“they intended should be used, or
had reasonable cause to suspect might be used, for those
purposes.”
In
clause 33, which we are now considering, there are amendments to the
section of the Terrorism Act 2000 entitled “Forfeiture:
terrorist property offences”. Again, amendments are included,
the first ones of which one might think are entirely understandable.
Forfeiture may be ordered by the court if the property has
been
“used for the
purposes of
terrorism”
or
“it was intended by that person
that it should be used for the purposes of terrorism.”
But then subparagraph (iii) goes on to
say, if
“the court
believes that it will be used for the purposes of terrorism unless
forfeited.”
The amendment
deletes that third section.
This is a probing amendment, but
I should be grateful if the Minister would explain what in fact is the
architecture that we are putting in place here. My
recollection—though I may be wrong about this—is that the
Terrorism Act 2000 provides that there should be forfeiture in the
cases of terrorist property—that is, forfeiture of property
connected to terrorism. But to include a provision that the court
believes that it will be used for the purposes of terrorism unless
forfeited seems to be an extension of that principle. It may be
justified, but it would be useful for the Committee to understand the
Government’s reasoning on this point.
I would like
to illustrate my possible concerns. On the basis that the individual
concerned would almost certainly have been imprisoned for the terrorism
offence with which he has been convicted, if the property has not been
connected to terrorism in the first place, that raises the question in
my mind: what sort of property will the court then be asked to look at
to form a belief that it
will be used for the purposes of terrorism unless forfeited? It seems to
me to be an exceptionally wide power. Will the Minister therefore tell
the Committee what the Government’s intention is here, and what
the criteria are that the court would be asked to apply in coming to
that
determination.
Mr.
Douglas Hogg (Sleaford and North Hykeham) (Con): I rise to
support my hon. and learned Friend the Member for Beaconsfield on this
point. We go back in part to the debate we had last week about the
imaginary McNulty—because what we have got, or could have again,
is the repairer in a garage in whose possession is a vehicle deposited
by an innocent third party, and here we have a very wide power to
forfeit that could bite on the properties of innocent third parties, so
it is rather important that the Government explain the precise reasons
for and limits of this
power.
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Tony McNulty):
I do not
want—however pleasant that may be—to go back to the
imaginary Mr. McNulty. I thought we dispatched that last
week. Equally, let me say what a pleasure it is to be under your
chairmanship again, Mr. O’Hara. You will see that we
have made, in your absence, some progress, but a little more today
would be extremely useful for all concerned.
On the first point made by the
hon. and learned Member for Beaconsfield, the architecture of this set
of clauses on forfeiture of assets can be found in the Powers of
Criminal Courts (Sentencing) Act 2000. This is largely replicated here.
He is entirely right: there was a forfeiture element in section 111 of
the Terrorism Act 2000, but that was just for Northern Ireland, and has
since been repealed. Interestingly, that referred to a similar set of
rules, but said that the court may forfeit if it believed that they
were used for the purposes of terrorism, and we think that “will
be used” is stronger than “may be used” in that
regards. So the architecture is not new; it comes from there.
The entire
regime that clauses 32 to 37 aim to build on, extends, as I said, that
already in place in the Terrorism Act 2000. Such a regime is an
important means of ensuring that assets held by convicted terrorists
that either have been used, or will be used, for the purposes of
terrorism, are removed from circulation. The regime also serves as an
additional part of the sentence of the convicted, thereby adding to the
deterrent power of the
offence.
To ensure that
the regime is as effective as possible, it is clearly important that
the maximum amount of assets that might be used for the purposes of
terrorism are available for the courts to consider for possible
forfeiture. In this context, it is sometimes very difficult to prove an
intention in the mind of the convicted person beyond reasonable doubt.
In these cases, it is right that the court is able to come to its own
belief about whether the assets in question will be used for the
purposes of terrorism unless forfeited. We think that is an important
element of the architecture, as the right hon. and learned Gentleman
fairly said. Amendment No. 173 will deny the court that
ability.
It is worth
pointing out at this stage that this type of wording is not new in
legislation. Section 111 of the now repealed element of the Terrorism
Act 2000, which applied to Northern Ireland, allowed for forfeiture to
be ordered where the court believed that property may be used in
connection with the activities of specified organisations unless
forfeited. Actually, as I have implied, this is a lower test than the
wording in the present clause, which requires the court to believe that
the property will be used for terrorist
purposes.
Mr.
Grieve:
If I understand the Minister correctly, that was
with reference to specified organisations and not a general
power?
Mr.
McNulty:
Absolutely so, and specific to Northern Ireland.
As I have said to the Committee, in quite rightly looking at the
dismantling of the assorted security and terrorist legislation in
Northern Ireland, and given the peace process, the Government have
sought to learn from those experiences and see how we can improve our
legislation, if we think the legislation should be translated into a UK
dimension.
It should also
be pointed out that the civil standard of proof is required in testing
whether there has been unlawful conduct such as to bring into play the
proceedings for recovery and confiscation of assets under the Proceeds
of Crime Act 2002. Clearly, however, giving the courts this power needs
to be balanced by appropriate safeguards to prevent assets being
unfairly removed either from the convicted person or from innocent
owners, such as the imaginary Mr. McNulty. Such safeguards
do exist, and with your indulgence, Mr. O’Hara, I
will run through them now, as they are germane to the amendment as well
as to the overall
clause.
First, the
court must still have before it all the necessary evidence in order to
make a full and proper investigation into the prosecution's
application. This is established in case law with R v
.
Pemberton 1982, and applies to all court orders for deprivation and
forfeiture of assets. The court must also act in a way that is
compatible with the European convention on human rights, in particular
article 8, the right to respect of private and family life, home and
correspondence, and article 1 of the first protocol, the right to
peaceful enjoyment of
possessions.
The Bill
provides greater safeguards than the forfeiture provisions in the 2000
Act and new section 23B(2) provides that the court must also have
regard to the value of the property and to the
“financial and other effects on the
convicted person of the making of the order”.
Given those safeguards,
the existence in other legislation of a similar standard of proof when
considering deprivation of assets, and the need for a fully effective
forfeiture regime, amendment No. 173 is not necessary and I would ask
that it be
withdrawn.
Mr.
Grieve:
I am grateful to the Minister for helping to
enlighten me as to the background and I ask the Committee’s
leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
‘section 6 (training
for
terrorism);’.
Mr.
McNulty:
Clause 33 extends the power of the court in
clause 32 to order, as we have just discussed, forfeiture of money or
other property under the possession or control of the person convicted
by it, from the terrorists finance offences with which clause 32 is
concerned, to certain other terrorism offences and offences with a
terrorist connection.
A number of offences contained
in the 2000 Act and the Terrorism Act 2006 do not have bespoke
comprehensive forfeiture provisions attached to them. This clause will
allow a court that convicts a person of certain terrorist offences or
offences with a terrorist connection to order the forfeiture of money
or other property in the possession or control of the person convicted
at the time of the offence, which had either been used for the purposes
of terrorism, or which it was intended by the person convicted should
be used for the purpose of terrorism, or which the court believed would
be used for the purpose of terrorism unless forfeited.
The extension of the
court’s powers is necessary as the more general forfeiture
provisions that exist, in particular section 143 of the Powers of
Criminal Courts (Sentencing) Act 2000 do not cover complex assets such
as land. It is clearly right that land held by terrorists for terrorist
purposes, such as a flat bought to use as a bomb-making factory, is
removed from circulation. Specifically, clause 33 inserts new section
23A in the Terrorism Act 2000, setting out the power of the court to
order the forfeiture of assets of a person convicted of certain
terrorism offences and offences with a terrorist connection.
Subsection
(2)(b) contains a list of offences in the Terrorism Act 2006 to which
these powers will apply. This includes offences under sections 2, 5 and
9 to 11. Amendment no. 138 would add offences under section 6 to this
list. Section 6 of the Terrorism Act concerns the provision and receipt
of terrorist training, and section 7 sets out specific powers of
forfeiture in relation to an offence committed under section 6, but
these are restricted to assets connected to the offence itself. These
wider powers of forfeiture ought to be made available to the courts in
respect of people convicted for an offence under section 6, as I have
said—the provision and receipt of terrorist training—as
it may be that such a person has other assets intended to be used for
the purposes of terrorism that would not be available for forfeiture
under the current regime. This is in line with the extension of the
forfeiture regime in general under the Bill. Amendment No. 139 would
simply add a line to section 7 of the Terrorism Act 2006 stating that
the forfeiture powers set out there in respect of assets connected to
an offence are in addition to those in new section 23A.
That is simply tidying up
matters on how the three Bills relate to each other. I commend the
amendments to the
Committee.
Mr.
Grieve:
I realise that in a sense the
Minister is tidying up, but he is creating a very wide-ranging series
of powers in relation to forfeiture covering, I assume, the entire
spectrum of any offence that might fall within the terrorism
definition. It simply means that then it is up to judicial discretion
to ensure that all this is applied in a way that is fair. Otherwise one
can see it would have the potential of becoming a draconian side
sanction
that may be out of all proportion to the actual offences being
committed. I say no more about that, Mr. O’Hara. I
simply flag up the fact that these are very extensive powers that the
state is taking to itself but I trust that, moderated by the judiciary,
they will be applied
correctly.
Amendment
agreed to.
Clause33,
as amended,
ordered to stand part of the
Bill.
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