Policing and Crime Bill

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Q 91Ms Keeble: I think it is really dangerous to minimise the risks. I have certainly seen “women get in free” offers, and we have one coming up that is 89p for any drink. We have had “18 quid and drink as much as you want for an entire evening” offers. They have been spectacularly appalling.
Rob Hayward: I am not minimising anything; it was Councillor White who said “few and far between”.
The Chairman: This will have to be the last question. I remind all colleagues that I have no leeway at 5.30 pm, when I will have to end proceedings. I know that Mr. Craik wants to come in as well, but first, Mr. Hayward.
Rob Hayward: All I wanted to say is that I am absolutely determined—I repeat what I have said on a number of occasions—that bad premises, as shown under due diligence, should be closed. There is no question about that. It was Councillor White who said, in response to this question, in terms of individual premises, that problem premises were few and far between.
Mike Craik: May I make a couple of quick points? First, KPMG gave a snapshot. I have been dealing with this issue for almost nine years, and we have had lots of discussions about promising initiatives all over the place, and about partnership, and we are still having them. This needs a kick-start: it needs those starting conditions to be set, and it needs mandatory direction.
The Chairman: The sensible thing would probably be to draw the line at this stage. On behalf of all members of the Committee, I thank you, witnesses, for your written statements and for coming along to present your views to us today. This has been extremely helpful, and will no doubt be referred to during the Committee’s proceedings in the days and weeks ahead. Thank you all very much indeed.
5.30 pm
The Chairman: If you are sitting comfortably, we will begin. This second part of the evidence session will look at proceeds of crime and related questions in the Bill. May I ask the witnesses to introduce themselves and their organisations?
Tristram Hicks: I am Detective Chief Inspector Tristram Hicks from the Metropolitan police.
Murray Duffin: I am DCI Murray Duffin from the Metropolitan police and I am responsible for the extradition unit.
Allan Gibson: I am Commander Allan Gibson from the Metropolitan police and I have responsibility for extradition and proceeds of crime. The two gentlemen to my right are my experts as well.
Mick Creedon: I am Mick Creedon, the Chief Constable of Derbyshire, and I am the ACPO lead for the country for asset recovery and the proceeds of crime.
Q 92James Brokenshire: I start with a question to Mr. Evans. SOCA last year assumed the responsibilities of the Assets Recovery Agency which had a slightly difficult history. Can you give us an update on how the merger has followed through, as that is essential to one of the key agencies using the powers in this Bill?
Paul Evans: I believe that you and I have been involved in extensive correspondence on this matter. The merger is a people-thing and the people have merged pretty well into a larger organisation which gives them a better opportunity for a better career path.
If you are asking about numbers, I am afraid I will have to ask you to wait until May when, as statute dictates, we will be publishing our annual report to the House via Ministers. If you are asking for a general indication, I would say that intelligence that we receive on a daily basis indicates that criminals have noticed that the civil recovery powers are powerful and bite at the one thing that motivates them to engage in organised crime, which is the compilation and acquisition of wealth. I think they also notice that we are rather more aggressively settling cases before they come to fruition in the High Court—a necessarily expensive but full process. Perhaps I should say no more, as I am bound by convention not to release the figures until we reach the end of the financial year.
Q 93James Brokenshire: In that context, before we start to look at what is in the Bill, could you and your colleagues flesh out what you see as the principal impediment or limitation that is inhibiting you being able to enforce effectively the powers you already have, as well as the shortcomings that have been identified to necessitate the legislative change that we have before us in the Bill?
Paul Evans: Largely, the changes proposed in the Bill, in my view, are of a technical nature backed up by evidence of experience of operation of the law since 2002. If you were to ask me what the major impediments are, I would say that there are none except ourselves. That is a question that I could perhaps direct to Mick Creedon, who heads the ACPO league nationally for really embedding as a mainstream tool these incredibly powerful, useful and efficacious law enforcement tools.
Mick Creedon: Moving away from your question about ARA going into SOCA, because that is a specific issue around that agency and the civil side of it, the feel for the question I took was almost one of why things are not working as they should. I would take issue with that. I think the Act, as a relatively recent Act, has been a fantastic success. The huge increase in performance in terms of the volume and value of assets recovered and so on, shows that. Across policing it is being embraced more and more. I agree with Paul absolutely. The impediments to this are our ability to understand it and use it at every level of criminality.
The issues raised in these clauses are exactly as Paul described. This is us, working with partners and the Home Office, recognising that some fine tuning is necessary. That is not that surprising because we are trying to use this widely. I do not think that the measures proposed are particularly radical. They do not change the Proceeds of Crime Act 2002 particularly. I do not think that there is necessarily a failing in the legislation. It is a recognition of how hard it is to mainstream this across 250,000 police officers and police staff.
Q 94James Brokenshire: Obviously the reason for asking the question was not necessarily to be critical. It was to understand the background or the triggers here so that we, as the people scrutinising this, can better understand why, for example, some of the powers have been taken. As you recognise, there has been some criticism from the Bar Council about the human rights impact of some of the provisions. Therefore, as a starting point I am seeking to understand the background and the basis on which these new powers are being sought. From what you are saying, your experience of the application of the legislation before the courts or otherwise suggests that there is some justification for seeking to push certain elements, if I can use that terminology.
Mick Creedon: You are right. To a certain extent what we have seen over the past few years, and in some cases bitter experience, shows how difficult it is to enforce some of the confiscation orders and how easy it is for assets to be hidden and moved away. Even though an asset might be restrained, it does not necessarily mean that it will be easy to get to the confiscation. So when issues are raised here about our ability to seize and retain property in the light of a pending confiscation order, they seem perfectly sensible, provided that the safeguards are in place, which I believe they are.
There are things we have learnt about the most organised criminals and their ability to dissipate and move assets, and there are measures here that will hopefully stop that. I am not sure how well known it is, but we talk of a pipeline in asset recovery with a huge amount of cash, confiscation orders and civil actions going in. It takes a long time to go through that pipeline. It is very crooked and it has gaps and holes in it. This is an attempt to make sure that we do not lose things during that pipeline of a case.
Allan Gibson: If I may add a view from the Metropolitan police on some of the issues that have been mentioned so far and some of the challenges. One of the most challenging things is to mainstream the use of POCA by our officers. We are having to raise consciousness. We are having to make them aware of how this is not just a bolt-on to an investigation. It can be a mainstream approach. It can be the first and most appropriate approach to tackling criminality. That is one issue. The second has been building up the skills and experience to do this. That has been a major investment programme for us. There have been advantages through incentivisation to do that, but it costs us more than we get back. We have to find resources to put into this. We believe in it as the benefits are more than just financial, there are benefits to the community and to the higher principles of criminal justice.
Paul Evans: May I add one point of clarification? I have been doing this sort of job for more years than I care to remember, and one self-evident truth strikes me at the end of that experience. Criminals are engaged in serious and organised crime for one reason alone: the acquisition of criminal property and assets. They need those for three reasons. The first is the lifestyle that it creates, or the bling factor. The second is the retirement fund. They do not think in the same way as the people in this room. They believe that they will never face capture and that they are invincible. They therefore need money to buy the villa in Spain. The third reason, which is the most important element in the acquisitiveness of organised crime, is the feeling of significance and status that the acquisition of wealth gives criminals.
That is why many criminals have spent significant resource, effort and ingenuity in trying to defeat the purposes for which the 2002 Act was placed on the statute book. For that reason, this Bill proposes significant but small technical changes to some of the ways in which the 2002 Act has operated, enabling us to re-level the playing field. That is how I feel about the matter.
Q 95James Brokenshire: On a couple of specifics, there are certain changes to confiscation orders, but how often have magistrates refused confiscation orders in practice? Do you have any experience of that? There is some suggestion that there have been problems, but it would be useful to get a feel for the nature of them.
Mick Creedon: I have no data. Perhaps Tristram from the Metropolitan police has examples as a practitioner.
Tristram Hicks: Refusing confiscation orders is relatively unusual. The issue is getting evidence of assets being seized to the magistrates so that they can make the orders. I think that refusal is the exception.
Q 96James Brokenshire: To broaden the point slightly, there was some debate and consideration at the time of the Assets Recovery Agency of the interrelationship between some of the powers granted to it and the application of human rights. That was used as mitigation for some of the problems in advancing and enforcing claims. Is that still a relevant consideration or has the case law sorted itself out? Is this what you were seeking to remedy in these provisions?
Paul Evans: The human rights aspects that were tested in a variety of cases, including the case of Walsh, have been settled. However, nothing is ever really settled. That issue is not causing us delay or trouble regarding the challenges made on these grounds in litigation that is before court or about to go to court. Therefore, it is not addressed in these clauses. However, the complexity that we face with civil litigation based on criminal lifestyle can often create a burden in a case that takes significant time and effort to resolve. If we are to be fair in trying to produce this litigation—civil recovery is essentially litigation, not accusation—we need to be thorough and fair. For that reason, some of these cases are enormously complex with vast amounts of documented material. It is that, rather than anything in the Human Rights Act 1998, that sometimes causes delay and leads to complexity.
Q 97James Brokenshire: Has that been your experience as well, Mr. Hicks, in the context of the Metropolitan police’s use and application? What have been the challenges before the courts? Are those legislative or have they been to do with intelligence and the evidence?
Tristram Hicks: The problem with confiscation orders being enforced is primarily the absence of assets that are available for confiscation at the point of enforcement. Successful confiscation enforcement is a product of cash and assets being seized or restrained at the very earliest part of the process, because as soon as a criminal is alerted to the risk of their assets being taken away, they can quickly dissipate those assets and move cash and property. Some of the difficulties that we have had over the years have been to do with our inability to seize and restrain effectively at the beginning of the process. Part of that is about skills and experience, but a lot of it is to do with our inability to seize and retain assets for the purposes of confiscation enforcement.
Q 98Mr. Ruffley: A question on civil recovery for you, Mr. Evans. I understand that a cash forfeiture order has to be granted by a magistrate, whether it is contested or not, and that SOCA believes that to be quite bureaucratic and time consuming. In what proportion of cases in which there is a cash forfeiture order in play will the alleged offender get lawyered up and waste time? Is it a high proportion? Is if half of them?
Paul Evans: I do not have the exact figure.
Mr. Ruffley: In rough terms.
Paul Evans: The problem is a slightly different one. Many cases—for the police service, rather than for SOCA, for different reasons to do with the nature of the casework—proceed to uncontested forfeiture. In those cases, we believe that if the respondent is put on notice that we intend to proceed with a forfeiture hearing and does not respond, there should be no need for a hearing about the criminal nature of the cash. The experience of colleagues is significant. A significant amount of court time is taken up with cases that do not end up with an argument, and that is the point that we are trying to address in the Bill.
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