Policing and Crime Bill

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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.
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.
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.
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Prepared 28 January 2009