Q
99Mr.
Ruffley: So you would not expect the clause that we are
talking about to be particularly contentious and believe that it is
just common sense because the orders are not contested in many
cases. Paul
Evans:
Indeed.
Q
100Mr.
Ruffley: So it is just tidying up and should not be
particularly controversial from our point of view as scrutineers of
legislation. Paul
Evans: I would hope not in a case where there is no
contention. Mick
Creedon: On the volume, in respect of policing, you
might be aware that this started off, in cash terms, with a
£10,000 threshold. That became £5,000 and then
£1,000, and—lo and behold—the world did not end.
We all envisaged problems that that would cause us, with lots of cash
being returned, but that is not the
case. In
police terms, this afternoon I checked the numbers relating to the
growth in volume. In the year 2005-06, there were about 800 cash
forfeiture orders. In 2006-07 there were 1,150, last year there were
2,200, and this year, on profile, there will be more than 4,000. There
has been a massive growth. The process is bureaucratic. You have to go
to court every three months and consider whether to use your financial
investigator, your in-house lawyer, or outsourcing, as some forces do.
The process becomes bureaucratic and
costly. It makes
common sense to move forward cases where an order is uncontested as
quickly as possible. A lot of forces would find that a cost saving, as
would the courts. It might surprise you to learn that there are
occasions when an individual wants to keep as clear as possible of
large amounts of cash found on or near them and wants to deny any
knowledge of it, because that could be clear evidence of a
money-laundering offence that they have been
committing. Paul
Evans: At the moment, we are turning up with a
lawyer, a financial investigator and evidence only for the court to
find that there is no one on the other side. Some criminals would
prefer to walk away from the money, rather than face an embarrassing
revelation of how they obtained it.
Q
101Mr.
Ruffley: Chief Constable, in your view, what is the single
most important change that the clauses will bring about in relation to
the proceeds of crime, and what will make the biggest difference for
your
officers? Mick
Creedon: For policing, I think that clauses 33 and 36
are the most important. Clause 33 deals with the power to retain seized
property and clause 36, which sets out the paralleled and mirrored
power, gives the power to seize and search property. The other clauses
vary in importance, but they are not quite as important for us. Clauses
33 and 36 give the police the chance, as early in the process as
possible, to stop those most organised criminals from doing everything
that they can do to lose, dissipate, hide or devalue the
asset—we obviously requested those powers to apply at the arrest
stage, rather than the charge stage, because there is sometimes a long
time lag between
them.
Q
102Mr.
Ruffley: It is very useful if the practitioners tell us
what is most important to them, so I will pay extra attention to those
two clauses. Do you anticipate more litigation from suspects as a
result of those new
powers? Mick
Creedon: We have to, because we will be seizing and
retaining property, and not under the existing PACE powers, which
relate to other criminal investigations, but under the power of a
future confiscation order. I have looked at the
proposals—obviously we work with the Home Office—and I
think that scrutiny and judicial oversight should bring some
independence. The other aspect that I really need to stress is that
this will be used proportionately. It will be used not by every PC and
motorway cop, but by trained financial investigators who know what they
are doing. Clearly, the other safeguards relate to the nature of
property that cannot be taken so that you cannot undermine
someone’s lifestyle or business by taking things that will stop
that. There is a risk of it, of course, but that is the case with huge
amounts of
legislation.
Q
103James
Brokenshire: Let us move on to the topic of extradition,
because obviously there are additional provisions on extradition in the
Bill, in many ways relating to the new Schengen information system and
the European arrest warrant. Just as background, what
has been the effect of the application of the European arrest warrant on
requests made to this country and citizens who are extradited? What
sort of numbers are we talking about, and what sort of cases have they
generally been applied to?
Allan
Gibson: I will answer that, and Murray will help me
out if I get it wrong. There has been very fast growth in the use of
the European arrest warrant, and it has caused a problem because the
system that we have for managing it in England and Wales has been based
on one force—my own Metropolitan police—and we were never
resourced for that. In the past, this was seen as a specialist activity
requiring specialist skills and knowledge of foreign jurisdictions and
so forth, so our approach was that a small number of people undertook
it nationally. As things have taken off with Schengen I and the early
notification of the European arrest warrants, the numbers have grown
from 246 in 2006 to 435 in 2007 and 527 in 2008, and that is just from
the European arrest warrants. The numbers are projected to keep growing
to about 1,700 in 2010, when Schengen II will come online.
The difference
between Schengen I and Schengen II is that we currently get paper
notification coming through SOCA, and therefore we have to put the
system on to the police national computer. However, in 2010,
information will be put on to the Schengen system, which will be bolted
on to the police national database, so it will be put on in the country
of origin. There are a whole load of people currently on the Schengen
system, to which we are not connected. That will come on line, as will
the circulation of wanted
people. The
situation has created overstretch in the Metropolitan police. We simply
cannot manage this exponential growth. Through the Association of Chief
Police Officers, we have put colleagues in the other 42 police forces
on notice that they are going to have to manage this. SOCA will notify
them of people sought who are residing in their force area and they
will be responsible for making the arrest. That will cause some
difficulties because of the ways in which the court and the transport
system out of the country operate. The only court in the country that
deals with extradition is the City of Westminster. Part of the
provisions allows electronic connection between the City of Westminster
and other parts of the country, although City of Westminster will
remain the only court. The main exit ports are Heathrow and Gatwick. We
have a special arrangement with Poland. A military flight is used to
take the Polish, who are the greatest users of the European arrest
warrant, out of the country on a monthly
basis. There
will be problems with how forces around the country get their people to
the airport, get them airside and hand them over to law enforcement
agents of a foreign jurisdiction. This is where we are: rapid take-off,
planned and continued exponential growth, and having to change the way
we do business. But it is not just the police that will have to change;
other parts of the criminal justice system will have to change to
accommodate this growth.
Paul
Evans: Would it be helpful if I explained
SOCA’s role in some of this? It is twofold. We act as the
administrative authority that certifies the incoming request, so
experienced officers check the fine print and detail of each and every
one of these EAWs—the growth is exponential—to check that
they are in order. Having collated any further intelligence on the
subject of the
warrant, we would then pass it out to a police force to action. It is
our responsibility to manage the court process of the extradition,
appointing CPS prosecutors and the like. We act in support of the front
end and I think we are all coping with some sense of just how big this
problem could be and what new arrangements would be required. For
example, in SOCA, we anticipate that the growth in business is
sufficient for us to consider moving out of central London to the
north-west and with significant extra numbers, not only to fulfil our
requirement to move people out of the south-east, but also because the
labour markets will be more amenable to us employing folk in the
north-west. The business case is of that order as we consider moving a
chunk of
work.
Q
104James
Brokenshire: In terms of the information that you hold on
this request and the statements that you have made about exponential
growth, to what extent do these requests relate, first, to other
European nationals in this country whose home country is seeking
extradition to get them back to face charges and, secondly, to British
citizens sought in other jurisdictions? Thirdly, of that number, how
many are subject to claims or potential prosecution for offences that
would not be prosecutable here? Obviously, there is concern that the
European arrest warrant is used in certain cases to charge and arrest
someone in this country when there is not an offence here, thus
breaking the normal rules on extradition that something has to be
chargeable in both
countries. Murray
Duffin: Before I answer that, let me say that the
figures Mr. Gibson was citing were actual arrests. We have
far more requests than arrests. Every request has a resource
implication because there needs to be research to find out whether a
person is in the country. The number of requests is about double the
number of arrests.
Moving on to
your question, very few of our requests relate to British nationals.
The vast majority—95 per cent. or more—relate to foreign
nationals who are in England and Wales, which is our area of business,
with the offence having been committed in their home country or another
foreign country.
On dual
criminality, the only case I can think of that we have dealt with in
which the offence is not an offence in the UK is a high-profile
holocaust denial case, which I am sure you are aware
of.
Q
105Paul
Holmes: I shall go back to the initial line of questioning
because most of the controversy from outside groups that have written
to us about the proposals is centred on the confiscation of property
and cash in the gap between arrest and charge, and in gaps between
making arrests. How big a problem is it that large amounts of goods
that you think are the result of criminal activity disappear, or are
significantly reduced, before you can seize that property?
Mick
Creedon: From a policing point of view, you have to
recognise that one benefit that we have already seen is the ability to
mainstream activity, so we are getting into low amounts and low-value
orders at times, but equally into very high-value orders. A high-value
order has two elements, the first of which, as we described earlier, is
the ability to hunt down and realise assets. The
second is that a case can easily take two and a half to three years to
go from the start, and intelligence gathering, through to prosecution
and the final confiscation order. We have a lot of experience of assets
going in that
time. We
are getting better at the restraining procedure, but restraining still
allows a person to have access to the assets and to use them. There are
two elements. First, the person who is under investigation and who will
potentially be charged is still able to drive around in their BMW and
have a lavish lifestyle. Secondly, it is very difficult for us to have
any oversight, control or knowledge of how assets are being dissipated,
including—the experienced guys at the Met, particularly
Tristram, know about this—by being moved abroad. While it is
easier to have arrangements with some jurisdictions, it is very
difficult with others.
I could not
quantify how many confiscation orders would be affected by that issue.
However, when we did the consultation, in which we consulted each of
the 43 forces in England and Wales, through a chief officer,
this was a commonly raised issue—hence it went to the Home
Office. The original thinking was that this should happen post-charge,
but we have requested post-arrest because of the difficulty
involved. Paul
Evans: I would add that in the world of serious and
organised crime, it would be unusual for us to investigate any
organised criminal who had not developed a strategy for the protection
of wealth in the event of arrest or investigation. This is meant to
deal with the low-order end of that
problem. Mick
Creedon: ACPO, working alongside SOCA, has done an
awful lot in recent years to try to understand the depth and size of
organised criminal enterprises across the UK. As we get better at that
and share understanding, one thing that comes out, unsurprisingly, is
the enormity of criminal wealth. That does not mean that we are going
to move straight to a position in which we can seize it and go for
confiscation, but that opens our eyes and makes us think about how we
can best take action to secure it. As Paul started off by saying,
regarding tiers of people’s motivation, to go through the
process of getting the confiscation order, but then not to be able to
get to the asset is, frankly, a failure of justice. The
criminal’s biggest worry is not the sentence, but their assets
being taken from them, and they will get more and more sophisticated at
hiding assets from
us.
Q
106Paul
Holmes: Are you talking primarily about cash, about
high-value items such as jewellery, or about
property? Mick
Creedon: It is a combination of all those
things—vehicles are a common one, but it can also be high-value
items. Properties are more difficult, and clearly they can be
transferred to different people. The bit not to underestimate is when a
criminal who knows that an investigation is going on, thinks, “I
know what profit I’ve made, but I may as well just decimate that
in the period between my arrest and my final confiscation order,
because it’s going to be taken off me anyway.” So, when
the confiscation order is made, the value that is quite rightly there
is realised down
here. Paul
Evans: Let me put it another way: there is serious
public interest in us being able to finish the game. It is not a game
of two halves, you have to get to
the final whistle and that is the moment when the asset is transferred
into Crown hands. Many of the points in the Bill and the discussions
here and with Home Office officials, who have been very supportive, are
about doing what it says on the tin—confiscating. I can make a
lot of effort with my officers, doing all of the preparatory work, the
arrest, the restraint, the financial investigation, the court hearing
and the confiscation hearing, but unless I get the money, I might as
well not have bothered. That is the point and that is what we are
trying to
address.
Q
107Paul
Holmes: I think, Mick, that in an earlier answer on this
topic you said that you have to recognise property and assets that are
essential to what might be a legitimate business. How do you draw the
distinction? Mick
Creedon: One of my roles in ACPO is working with the
service on best practice and guidance. We have worked with the National
Police Improvement Agency on clear guidance. Obviously, there has
always been a power under PACE to seize property subject to, say, a
money laundering investigation or whatever else the offence may be. We
have tried to be very clear about what you should and should not take.
Clearly, there are things that people need for their lifestyle, which
are proper for them to retain. That is where this power will help. Out
of it, as you are aware, there will be codes of practice and guidance.
Therefore, what people need to lead a normal lifestyle will be very
clear, but, frankly, the 58-in plasma screen TV may not be what you
need for that ordinary lifestyle. There has to be a degree of common
sense and we will see where the level settles. The ability to have a
real life or run a business will be protected by scrutiny, judicial
oversight and, I hope, codes of practice and
guidance.
|
