 House of Commons |
Session 2008 - 09 Publications on the internet Public Bill Committee Debates Policing and Crime Bill |
Policing and Crime Bill |
The Committee consisted of the following Members:Chris
Shaw, Andrew Kennon, Committee
Clerks † attended the
Committee Public Bill CommitteeTuesday 24 February 2009(Morning)[Hugh Bayley in the Chair]Policing and Crime BillWritten evidence to be reported to the HousePC 62 Dr. John
Davies PC 63 Oxford
City Council PC 64
David Morris PC 65
Maggie O’Neil and Jane
Pitcher PC 66 Arun
District Council PC 67
Sexual Freedom
Coalition 10.30
am
The
Minister for Security, Counter-Terrorism, Crime and Policing
(Mr. Vernon Coaker): I beg to
move, That
the Order of the Committee of 27 January be amended as
follows— (a)
in paragraph (1)(h), after “9.00 am” insert “and
1.00
pm”. (b)
in paragraph (4) leave out “10.25 am” and insert
“4.00
pm”. Good
morning to you, Mr. Bayley, and to the Committee. I hope
that everyone had a reasonable
recess. I
want to put on record my thanks to the hon. Member for West Chelmsford,
the Opposition Front Bench and the Liberal Front Bench for their
co-operation on the programming and running of the Committee. It would
be remiss, given our experiences on such Committees, not to put that on
record. Question
put and agreed
to.
Clause 36Search
and seizure of property: England and
Wales
‘property held
by the person’
and insert
‘realisable
property’.
The
Chairman: With this it will be convenient to discuss
Government amendments 157 to 162, 167 to 171, 173 to 177, 179 to 181,
186 to 190, 205 to 209 and
334.
Mr.
Coaker: Amendments 156 to 162, 167 to 171, 173 to 177, 179
to 181, 186 to 190 and 205 to 209 will be to clauses 36 to 38, which
relate to confiscation under the
Proceeds of Crime Act 2002. I explained the policy that the amendments
address at an earlier sitting so I will be reasonably
brief. The
amendments will expand the new powers of search and seizure of property
to include other persons holding gifts made by suspects as well as
property held by the suspect. Such property, known as tainted gifts, is
already included in the confiscation provisions of the 2002 Act. The
goal is to prevent a defendant from disposing of their property to
avoid confiscation. Law enforcement officers requested the extension of
the powers to other persons holding tainted gifts to close a
potentially fatal loophole whereby a suspect merely giving property to
family members and friends could undermine the viability of the new
powers. Amendment
173 will repeal the existing seizure power in the confiscation
provisions. Section 45 of the 2002 Act and the equivalent provisions
for Scotland and Northern Ireland provide that property subject to a
restraint order may be seized only to prevent its removal from the
country. Clauses 36 to 38 provide for more extensive search and seizure
powers, which will subsume the existing powers. Their continued
existence is therefore not justified and they will be
repealed. Amendments
168 to 171, 187 to 190 and 206 to 209 are minor guiding amendments. The
new powers provide for continued detention once the property has been
seized. Initially, an officer may detain seized property for 48 hours.
If there is no restraint order or if the officer decides not to apply
for one, he must apply for a detention order from the magistrates
court. Amendments
169 to 171, 188 to 190 and 207 to 209 provide that any person affected
by a detention order can apply for the discharge or variation of it.
They may also appeal against any decision made on the order. The
persons affected could be the defendant, a third party or the law
enforcement officer who applied for the detention order. I know that
the hon. Member for Hornchurch, in some of the amendments that he has
tabled, is concerned by the level of judicial oversight, rather than
the principle behind the Bill. The hon. Member for Chesterfield is also
concerned about that, and we will discuss that with other amendments. I
just wanted to highlight that particular section as I will mention it
in regard to the ability to vary orders, to appeal against orders and
so on, but that is a debate for later
amendments. Government
amendments 168, 187 and 206 explicitly provide that a magistrates court
cannot advise the continued extension of what is known and defined in
the Bill as “exempt property”. “Exempt
property” is defined in new section 47C(4) and includes items
necessary for a person’s personal use in his or her business
location or employment. It also includes:
“clothing,
bedding, furniture, household equipment, provisions or other things as
are necessary for satisfying the basic domestic needs of the defendant
and the defendant’s
family.” Upon
seizure, the officer can seize any property held by the defendant, or
by the recipient of a tainted gift from the defendant, except cash and
exempt property. Exempt property therefore, should not be seized, but
it is an important additional safeguard that the court takes account of
this issue. There is another protection to ensure that the seizure
powers are being used proportionately and correctly. It is obviously
important that seizure is not used to deprive a person of their
ability to live. There are similar exemptions in respect to bailiffs and
insolvency law. So, there are established precedents that we have tried
to use with respect to this particular measure. The same amendment is
made for the three UK jurisdictions, which is why we get triple the
number.
Government
amendment 344, which is consequential to the Proceeds of Crime Act
2002, merely makes repeals to the Act consequential and necessary due
to the other amendments that I have spoken to in this
group.
James
Brokenshire (Hornchurch) (Con): I am grateful to the
Minister for that explanation of the tranche of Government amendments
in this group. I hear what he says about judicial oversight and,
clearly, that is an issue that we will debate in further detail in
other parts of the
Bill. My
principal question for the Minister in respect to this group of
amendments regards the extension of the ambit of the search and seizure
powers by the creation of the new concept of “realisable
property”. Can he explain how that definition has been arrived
at, and how broad it is intended to be? I hear what he has said about
the arguments that have been put to him, by police and other law
enforcement agencies, on the need to extend those powers and on the way
this has been drawn up, but I would like to understand more clearly how
broad the definition of “realisable property” is, because
it seems to be very wide in its ambit. Does this provision extend the
law significantly, and how will the new clause be applied? What is the
actual basis of this provision, and how broad is the definition of
“realisable property”, as envisaged by the Government
amendments and their practical
application?
Mr.
Coaker: Let us re-establish what we are trying to do. We
are trying to prevent somebody who a law enforcement
officer—essentially a police constable—believes is trying
to get rid of property to avoid that property being restrained or
detained, so that it can be realised in the future when the
confiscation order is made.
“Realisable
property” is not a new concept; it is included in the Proceeds
of Crime Act. The easier way to define “realisable
property” is to look at what it is not realisable property, and
at what the court would say could not be used for recovering the
proceeds of crime. We have therefore tried to define exempt property
and say which things cannot, by any stretch of the imagination, be
considered to be realisable property. So we are doing it the other way
round. Although the concept of “realisable property” is
readily understood and has been used by the courts for a number of
years, we are coming at it from the other direction by saying what sort
of property cannot be used. We have therefore tried to define exempt
property. One
of the problems of creating a list is that, as soon as it is completed,
something will arise that is not on it. We shall see this later with
some of the other amendments that the hon. Gentleman has tabled. The
amendment relating to gangs, for example, tries to define
“gang-related” activity. We have tried to tell the courts
what exempt property is—namely, the things that we expect the
court not to treat as realisable property. We then leave it to the
court to determine what it means. Our approach has
been to look at this completely the other way around from the hon.
Gentleman’s point of view. I hope that that explanation helps
him.
Amendment
156 agreed to.
Amendments
made: 157, in
clause 36, page 27, line 35, leave
out
‘property held
by the person’
and insert
‘realisable
property’. 158,
in
clause 36, page 27, line 42, leave
out
‘property held
by the defendant’
and insert
‘realisable
property’. 159,
in
clause 36, page 28, line 4, leave
out
‘property held
by the defendant’
and insert
‘realisable
property’. 160,
in
clause 36, page 28, line 36, at
end insert— ‘(12) In
relation to the first or second condition section 77(9) has effect as
if proceedings for the offence had been started against the defendant
when the investigation was started.’.—(Mr.
Coaker.)
Mr.
Burns: On a point of order, Mr. Bayley. I am
sorry to interrupt, but would it be convenient for you and the
Committee if these amendments were grouped together and taken in one
fell
swoop?
The
Chairman: Thank you, Mr. Burns. If the
Committee is happy I shall ask the Minister to move the two remaining
amendments formally and then the rest can be dealt
with. Amendments
made: 161, in
clause 36, page 28, line 39, leave
out
‘free property
held by the defendant’
and insert
‘realisable
property’. 162,
in
clause 36, page 29, line 10, at
end insert— ‘(4A) In
relation to realisable property which is free property held by the
recipient of a tainted gift, references in subsection (4) to the
defendant are to be read as references to the recipient of that
gift.’.—(Mr.
Coaker.) 163,
in
clause 36, page 30, line 34, at
end insert— ‘(4A) An officer
exercising a power under subsection (4) may detain the vehicle for so
long as is necessary for its
exercise.’.—(Mr.
Coaker.)
10.45
am
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