James
Brokenshire: I will compile my comments to amendments 153,
155, 172, 192 and 210, which all cover the same point, but one that is
reflected in different parts of the Bill. The current provisions
provide for the continuing detention of seized assets where a restraint
order has been recalled or varied and detention is no longer applied.
In the case of amendment 153, and as reflected in the other similar
amendments that I referred to, and notwithstanding the decision of
judicial authorities, the assets can continue to be detained until the
time when there is no further possibility of an appeal or a review of
the court’s decision. I question how that can be appropriate,
proportionate or reasonable. It is not even a requirement that the
relevant authorities have to intend to appeal or seek a review. As I
read it, they can simply hold on to the assets until whatever time
they see
fit. I
question the need for such a measure, particularly if a legal authority
has taken the view that the order should no longer apply. Why then
should the assets be, or seemingly be, retained until the right of
appeal has lapsed? It almost seems to allow authorities to invoke the
power simply at will, if they do not like a decision that has been
reached. That does not seem to be right, and I cannot see how it can be
compatible with convention rights. It is a serious issue, and one of
the points that we have reached where the boundaries that are being
pushed are starting to reach the edge of acceptability. The judicial
authorities would have reached a conclusion at that point, which may
well be subject to appeal, but it seems fundamentally wrong that the
local authority can sit on the assets, notwithstanding that a court has
effectively said that they no longer need to be detained. Why is that
appropriate or necessary? Why should we accept the
amendments?
Mr.
Coaker: I hesitate to say that we disagree with the hon.
Gentleman, but we believe that the amendment is appropriate,
proportionate and reasonable. Every piece of legislation conforms to
the Human Rights Act 1998, and the assets will have to be released if
it is not proportionate to detain them. We are trying to close a
loophole, meaning that we can detain the property while an appeal has
been applied for or is pending. What we are trying to prevent all along
is a case that if a restraint order was overturned and an appeal was
made, a person in that case might, in that gap, get rid of the assets
and the various goods that they have, to try to circumvent a subsequent
confiscation order.
There is a
point of difference between us: I believe that the clause is
proportionate, while the hon. Member for Hornchurch believes that it is
not. I think that it is, because there have been far too many occasions
when the appeal process has been used as a way of circumventing the due
process of law. In the end, if an appeal is successful, the defendant
will be able to get their goods back. It is merely detaining them until
such time as we can ensure that, should a confiscation order be made,
those goods can be used towards the settlement of that
order. Amendment
150 agreed to.
James
Brokenshire: I beg to move amendment 93, in
clause 33, page 25, line 30, leave
out subsection
(5).
The
Chairman: With this it will be convenient to discuss the
following:
Amendment 97,
in
clause 36, page 27, line 18, at
end insert ‘and that use of such
power is
proportionate’. Amendment
98, in
clause 36, page 27, line 25, leave
out ‘the person has benefited’ and insert
‘the arrested person has benefited
financially’. Amendment
99, in
clause 36, page 28, line 8, leave
out ‘or the officer believes that
such an application is to be
made’. Amendment
100, in
clause 36, page 28, line 14, leave
out ‘or the officer believes that
such an application is to be
made’. Amendment
101, in
clause 36, page 28, line 22, leave
out ‘or the officer believes that
such an application is to be
made’. Amendment
102, in
clause 36, page 28, line 39, leave
out ‘by the defendant’ and insert
‘by the person arrested in the case of a
situation satisfying the first or second condition referred to in
Clause 47B or the defendant in any other
case’. Amendment
103, in
clause 36, page 29, line 13, leave
out ‘unless, in the circumstances,
it is not practicable to obtain that approval before exercising the
power’. Amendment
104, in
clause 36, page 29, line 34, leave
out ‘unless, in the circumstances,
it is not practicable to obtain that approval before exercising the
power’. Amendment
105, in
clause 36, page 29, line 40, leave
out ‘a person’ and insert
‘the person arrested in the case of a
situation satisfying the first or second condition referred to in
Clause 47B or the defendant in any other
case’.
Amendment 106,
in
clause 36, page 30, line 14, leave
out ‘a person’ and insert
‘the person arrested in the case of a
situation satisfying the first or second condition referred to in
Clause 47B or the defendant in any other
case’. Amendment
107, in
clause 36, page 30, line 36, leave
out from ‘47G’ to end of line
37. Government
amendment
178 4.15
pm
James
Brokenshire: The group gathers a number of different of
amendments to clause 33 and subsequent clauses. Amendment 93 would
delete subsection (5) of the proposed new section 41A of the Proceeds
of Crime Act 2002, which provides the powers in secondary legislation
to expand the list of relevant seizure powers to which the new
restraint order will apply. Given the nature of this proposed new
power, it seems inappropriate for its potential scope to be expanded,
rather than pursued into primary legislation. In any event, such new
powers would presumably be created by future primary legislation
anyway, so why is this provision needed? If not, what additional powers
under existing statutes does the Minister have in mind, to which this
may apply?
Remaining
amendments relate to new search and seizure powers in clause 36 in
circumstances where potentially no one has been charged with any
offence. Amendment 97 would ensure that the power was used only in
circumstances where it was proportionate to do so. This is quite a
blunt instrument in terms of how the clause is drafted. That may be
appropriate in cases of serious criminality, where significant assets
have been accrued because of such activity, but it is equally easy to
see that it could be open to misuse.
Amendment 98
is designed to make clear that for the trigger permitting the use of
the search and seizure powers to be operable in circumstances where
someone has been arrested but not charged, there must be reasonable
belief that the arrested person has benefited financially from the
suspected illegal conduct. It clarifies who may be subject to the
seizure powers. Are they be applied broadly, to virtually anyone, even
though they may be completely innocent and unaware that the assets that
they hold may have been financed by funds obtained directly, or
indirectly, through criminal activity? How far down the chain do the
Government intend to
go? As
the Bar Council points out in its briefing note, it must be remembered
that property that is detained under part 2 of the Proceeds of Crime
Act, need not form or be alleged to be proceeds of crime, and the
person from whom it is taken need not even be suspected of any crime,
let alone charged or convicted. For example, property could be taken
from the innocent recipient of a gift. Again, the need for
proportionality and reasonableness is relevant in this context, as well
as taking account of convention rights.
Amendments 99
to 101 would require the qualification that an appropriate officer can
exercise search and seizure powers where he believes that certain
applications by the prosecutor have been made. They either have or they
have not. It is interesting to note that the officer’s belief
does not even have to be a reasonable one. There is seemingly no
obligation to check. This seems unacceptable
and unreasonable—it does not seem too much of a hardship or a
time constraint for the relevant application to have been
made. Amendments
103, 104 and 107 would make a similar point by stating that approval
under proposed new section 47G should have been received. Suggesting
that the power should be capable of being exercised in circumstances
where it is said to be impracticable to obtain such approval seems to
drive a coach and horses through the protections. In whose judgment
would it be impracticable? Again, it is easy to see where this
provision might be misapplied.
Amendment 105
is particularly important, as it relates to powers to search
individuals. As the clause is currently drawn, it grants a general
power of search of anyone beyond even existing rights of search under
the Police and Criminal Evidence Act. Can the Minister explain the
reason behind the measure, as it seems difficult to understand why that
would be appropriate.
Amendment 102
would clarify the language around the use of the word
“defendant” in proposed new section 47C, given that there
will be no defendant if someone has simply been arrested. Amendments
105 and 106 make a similar point in different
contexts.
Mr.
Coaker: I accept the hon. Gentleman’s desire for
proportionality and oversight with respect to all of the various powers
that we are discussing—particularly in clauses 33 and 36. I also
understand that in his amendments about necessity and proportionality
that is what he trying to do. Having spent a long time helping
officials and others in law enforcement put this Bill together, we too
have been trying to do that. We all want to get more proceeds of crime
from criminals to ensure that more of the ill-gotten gains are not
enjoyed by people who break the law and do not conform to the
rules.
The hon.
Gentleman will have read the Bill carefully and knows that all the way
through there is judicial oversight and the power to vary or discharge
an order, and an appeal to the Crown court is available if people feel
that a magistrate’s decision, for example, is inappropriate. I
have argued all along for the need for that judicial oversight, which
the Bill allows for. That relates to search and seizure powers, because
obviously if we do not have powers of search and seizure we will have
no property to detain, and in clause 33 that is exactly what we have
tried to
do.
James
Brokenshire: I accept what the Minister has said, but he
will recognise that the scope and ambit of the provisions do not
necessarily touch only those people who have undertaken criminal
activity, but extend to those who might be completely oblivious to the
fact that they are in receipt or possession of assets that are caught
within the regime he has set out. Indeed, search powers might equally
be applied to them—a point to which I have alluded. He talks
about judicial oversight, but essentially that would take place after
the event, which is why my amendment would make it clearer from the
outset to anyone seeking to use the powers ab initio, regardless of
what appeal right or judicial oversight might arise thereafter, that
they should have regard to that initial action rather than what might
happen after the event.
Mr.
Coaker: The search powers are based on those used in cash
search and seizure. We know that criminal conduct is required on the
part of the person, but the property is the key concern to which the
provision relates, rather than the individual, who will be dealt with
through due process of the law. We are trying to stop significant
amounts of property being dispersed before the confiscation order is
made, and we have to address that as a public policy
issue.
James
Brokenshire: I accept
that.
Mr.
Coaker: I know that the hon. Gentleman does, and as I said
at the beginning of the debate, the difference between us is our view
of how to do that proportionately. That is why we have built in the
judicial oversight and not tried to extend the existing search and
seizure powers. No general power of entry is given to anyone dealing
with this and, as I have said, we believe that that is
proportionate. Amendment
97 deals with the issue of proportionality and the exercise by officers
of the new seizure powers. I agree with the hon. Gentleman that the
powers are potentially invasive and intrusive and that the police and
others must exercise restraint and caution when using them—that
is a given. When giving evidence to the Committee, Mr.
Creedon, the chief constable of Derbyshire, gave assurances on behalf
of ACPO that the powers would be used in a proportionate way and only
when necessary. He
said: “human
rights underpin what we do...Human rights are fundamentally
important.”——[Official Report, Policing
and Crime Public Bill Committee, 27 January 2009; c. 74,
Q117.] Similar
assurances were given by Paul Evans, a director of the Serious
Organised Crime Agency.
That said, we
would not, as a matter of course, put into statute a requirement on law
enforcement agencies to act in a way that was compatible with the
European convention on human rights because they are automatically
required to do so. Were we to include some express provision on
proportionality in clause 36, there is a risk that that might cast
doubt on whether law enforcement needed to ensure proportionality in
the use of other powers granted by the Proceeds of Crime Act 2002 and
other legislation. For example, there is nothing specific in the Police
and Criminal Evidence Act 1984 to require the police to exercise their
search and seizure powers proportionately. Rather, that is a general
requirement.
As I have
pointed out, there are numerous safeguards in clause 36 to ensure that
the powers are used proportionately, including the preconditions set
out before the search and seizure powers can be exercised in proposed
new section 47B, which require a person to have been arrested, to be
already subject to criminal proceedings, or to be subject to an
application for a confiscation order or reconsideration of an existing
order. Threshold tests for the seizure power, which vary according to
the stage in the procedure at which it is proposed to seize the
property, are also found in proposed new section
47B.
James
Brokenshire: I was going to raise this point in the stand
part debate, but I shall make it now to save time. The Minister
explained why the powers were necessary. However, the Bar
Council’s briefing notes on this part of the Bill set out
various other powers that may be applicable. They say:
“In
other words, the need for a new power of detention of property is
debatable in the first place, so it should only be invoked where at
least a real degree of necessity is
demonstrated.” That
comes back to my point about necessity. The Bar Council clearly feels
that there is a debatable point. In the context of our debate, I am
asking the Minister to reflect on the matter, given that such views are
being espoused by not just me, but people who have more knowledge than
I could possibly
have.
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