James
Brokenshire: I beg to move amendment 108, in
clause 36, page 30, line 42, leave
out from ‘a’ to end of line 43 and insert ‘the
Crown
Court’.
The
Chairman: With this it will be convenient to
discuss the following: amendment 109, in
clause 36, page 30, line 44, leave
out from beginning to end of line 10 on page
31. Amendment
110, in
clause 36, page 31, line 15, leave
out ‘a justice of the peace’ and insert ‘the Crown
Court’. Amendment
111, in
clause 36, page 31, line 21, leave
out ‘a justice of the peace’ and insert ‘the Crown
Court’. Amendment
112, in
clause 36, page 31, line 27, leave
out ‘a justice of the peace’ and insert ‘the Crown
Court’. Amendment
123, in
clause 36, page 34, line 37, leave
out paragraph
(b).
James
Brokenshire: We come to an issue to which the Minister has
alluded: appropriate judicial oversight. The principal point with
regard to the significant powers set out in the Bill is which is the
right court to consider the hearings for extending the period of
seizure. There are two factors to consider. First, there is the
seriousness of the power and, therefore, the seniority of the court
that should decide—a relevant factor in its own right. Secondly,
there is the complex nature of the issues at stake, and I think that
complex areas of law are likely to arise when the powers envisaged in
the Bill are
used. On
the point about seriousness, cases involving other existing powers for
which a court authorisation is required are currently heard by the
Crown court, so we believe that that precedent should be adhered to in
this context. I am sure that the Minister will pray in aid the need for
speed, the availability of judges and the fact that at times it might
be necessary to use the powers set out in the Bill quickly, but I see
those as administrative requirements that do not get to the basis of
the seriousness of the powers or determine the type of court required
to provide the necessary judicial oversight.
If the
Government want to make that power available, they must do so on the
basis of appropriate judicial oversight, and if they need to organise
arrangements so that Crown court judges are available at short notice,
that is what they should do, in conjunction with the Ministry of
Justice, to reflect the nature of the powers under consideration.
Liberty, in its briefing note to the Committee, states
that “under
the current provisions in relation to restraint orders (which are less
intrusive than this proposed measure) such orders must be approved by
the Crown Court. No reason is given as to why, at the very least, the
Crown Court is not involved in providing judicial
oversight.”
The Crown court is the
more appropriate court, given the serious interference with the right
to privacy and property that the provisions
introduce. With
regard to the issue of complexity, the Bar Council makes some equally
important observations that question whether Crown court judges are
suitably qualified to address the detailed points of law on trust
issues and distinctions between legal and equitable interests
in particular assets. There are several quite technical legal issues
involved in that regard, and the Bar Council has highlighted the
judgment in the Court of Appeal case of the Serious Fraud Office
v. Lexi Holdings. It stated
that “there
can be little doubt that the issues which arose in this case concerning
beneficial interests, equitable charges and tracing were far from
straightforward. They are not part of the daily work of most Crown
Court judges, and indeed this constitution of the Court of Appeal
Criminal Division was deliberately arranged so as to ensure that
appropriate expertise in matters normally falling within the
jurisdiction of the Chancery Division was available.”
I think that the Bar
Council used that example to demonstrate the challenges, complexities
and issues that might arise in the use of that particular power, so
without in any way wanting to question or undermine the advice that
would be given to the Justices of the Peace on the exercise of their
powers, I think that the issues are by their nature extremely
complicated.
In that case,
the Court of Appeal suggested that, because of the focus and nature of
the activities that Crown court judges would undertake, some of the
distinct issues of trust, such as ownership rights and the nature of
ownership and of particular assets, were not part and parcel of the
daily work of those courts. Indeed, if that argument is made about
Crown court judges, I am sure that the argument can by extension be
made with regard to magistrates courts.
It was
difficult to envisage how those powers could be used effectively with
that level of oversight, given the highly complex areas of law beyond
which a lay magistrate might be expected to make a determination, even
with the appropriate legal support that I have mentioned. Because we
think that judicial oversight at that level is appropriate for the type
of powers envisaged in the Government’s proposals, we consider
the measure to be inappropriate. I urge the Government to reconsider
their stance and consider carefully what would be suitable judicial
oversight to ensure that these powers are used effectively,
proportionately and appropriately. We believe the most appropriate way
forward is to have that higher level of oversight, based on the
precedent for what is envisaged in these
provisions. Paul
Holmes (Chesterfield) (LD): These amendments get to the
core of the debate on clause 36. It is not the principle of what we are
seeking to achieve that is at stake but the mechanism and detail of how
we do it. In essence, clause 36 and related clauses extend the power to
search and seize property before conviction, before proceedings have
commenced and on the suspicion of reasonable cause by the police
officers involved. During the Committee’s evidence sessions,
both Liberty and the Bar Council, for example, expressed concerns about
that power.
When Paul
Evans, the director of intervention at the Serious Organised Crime
Agency, gave evidence on 27 January, he argued that these
changes were largely technical, backed up by the experience of policing
in this area since 2002, but the Bar Council argued that they were
substantial, and not technical, changes. Martin Evans of the Bar
Council
said: “The
Bar Council has no objection to the principle that, in effect, personal
assets—cars, jewellery or household effects, and other such
things—could be detained under this power.”
However, he went on to
say that the Bar Council had particular concerns about moving to a
lower tier of oversight—from the Crown court to
magistrates: “The
proposal permits, on an application to the magistrates, the property to
be detained indefinitely. That is a concern because, as I said, it
introduces a lower tier.”——[Official
Report, Policing and Crime Public Bill Committee, 29 January 2009;
c. 86,
Q141.] Liberty
has said similar things. Collectively the argument is, what is the
evidence that the current restraint system is not working properly?
Paul Evans argued that the experience of the past five to six years
indicates the system is not working adequately and requires those
changes. What is the evidence that the current powers are not adequate?
Above all, why are we moving from Crown court supervision to the lower
tier of magistrate supervision? The Minister has not explained why we
are taking that step in the Bill, yet it is a fundamental one in the
eyes of organisations such as the Bar Council and Liberty.
Another
question arises from the code of practice. The Minister has reassured
us at various points that the Government and the police are not seeking
to infringe human rights. They have to take into account European
declarations on human rights. When Mick Creedon, chief constable of
Derbyshire, gave evidence, he said that, of course, human rights infuse
everything they do. Much of this is going to be wrapped up in
regulations in the code of practice, which we have not yet seen.
Liberty expressed concern that such a major step should be taken based
on regulations in a code of practice that is yet to be seen, rather
than on regulations in primary legislation.
At the crux
of these amendments is the question of why we should move from Crown
court supervision to a lower tier of magistrates. That raises related
questions regarding the evidence that we need to adopt these new
powers, as well as what is going to be in the code of practice and when
we are going to see it—it is not sufficient just to receive
reassurances from the
Minister.
Mr.
Coaker: The hon. Member for Chesterfield makes a
reasonable point, but he must understand—and I have said this on
a number of occasions—that if he were in my position or that of
the Home Secretary, he would have to wrestle with the fact that a
significant number of confiscation orders, which he knows can be passed
only by a Crown court, are unenforceable because the assets cannot be
got at. That is why he is not against the measure in principle.
Frankly, accepting that one can detain assets on arrest, and sometimes
in other circumstances, is a big step for the Government, the
Opposition and the Liberal
Democrats. The
public policy problem is about how we deal with the fact that
confiscation orders are unenforceable in many cases. The hon. Gentleman
says, “Where is the evidence?” The answer is that
confiscation orders involve large numbers of assets that we simply
cannot get at—for want of a better way to put it. That public
policy problem is part of the issue. The hon. Members for Hornchurch
and for Chesterfield accept that fact, so we have to do something about
it. Law enforcement, including the excellent chief constable of
Derbyshire, who is very close to the hon. Gentleman’s heart, and
the Serious Organised Crime Agency tell us that if we are to be
effective, quick and easy access to the courts is needed, which is why
we proposed the measure.
Let me take
the hon. Member for Chesterfield through the procedure. The police, or
an accredited financial investigator, decide that they are going to
search and seize property. Normally, they would seek prior approval,
and there is such provision in the Bill. Frankly—I may not be
supposed to say this—I was not sure if an inspector was a senior
enough police officer. I thought that there would be an amendment on
that because it was something that I had thought about. However, I am
reassured about the rank of inspector in every other aspect of prior
approval. In most circumstances, we would expect there to be prior
approval, but if that approval cannot be accessed, there would be 48
hours to hold the property, then the authorities would obviously have
to go to a Crown court for a restraint order. I expect the more serious
things to go to a Crown court, but a magistrates court will be
acceptable for a simple detention order. Therefore, there is judicial
oversight, but the hon. Gentleman is concerned about the level of that
oversight; I have been advised that the magistrates courts are
perfectly
capable. The
hon. Gentleman asked why we are doing this and what the problem with
restraint orders is. As the Bar Council said, the property remains in
the possession of the person concerned. The fundamental difference with
these proposals is that it does not stay with that person—the
property is searched, seized and detained. I hope that that answers the
specific point about why restraint orders alone are not sufficient. The
new power means that the Crown court can add detention of property to
the restraint order where appropriate, and nothing can be done with
restraint orders except by the Crown court. I imagine that it will deal
with more serious concerns and larger amounts of property and the
magistrates court will deal with other
property.
11
am After
48 hours, further approval is needed to detain the property. There are
significant safeguards, about which the hon. Members for Chesterfield
and for Hornchurch asked. If somebody acts without prior approval, they
will have to report to the appointed person. The Bill also offers
another important safeguard that has to be complied with, as the
Secretary of State must publish any report received by the appointed
person and lay a copy before Parliament, as is the case with other
powers under the Proceeds of Crime Act 2002.
As the hon.
Member for Chesterfield said, we have not yet seen the code of
practice, but because I was concerned about safeguards, the Bill
specifically states that the code will be published in draft—I
know that we have not seen it yet—and that the Secretary of
State
must “consider
any representations made about the
draft,” and “if
the Secretary of State thinks appropriate, modify the draft in the
light of any such
representations.” The
Secretary of State must also lay the draft before Parliament, which
must then approve the code of practice. Therefore, even though the code
of practice has not yet been seen or published, there is a significant
effort in the Bill to try to do some of the things suggested by the
hon. Gentleman to provide the reassurance that he thinks
necessary.
Paul
Holmes: I thank the Minister for that response. Will the
code of practice be seen before or after
Report?
Mr.
Coaker: It certainly will not be seen before Report. The
best reassurance that I can give the hon. Gentleman is that Members
will have a proper opportunity to look at the code of practice before
it is debated by
Parliament. The
code will set out how the powers should be exercised proportionately.
Before carrying out a seizure, there must be some estimate of the
person’s benefit from criminal conduct and of the value of any
property to be seized to ensure that only property up to the value of
the former is actually seized. There will also be guidelines on how to
assess the risk of dissipation, which is what we are all worried about.
The code will make clear that it should not be the default position
that any person being arrested for an acquisitive crime should have
their property seized. It will be important to assess the extent of the
person’s criminality and of their unexplained income. The code
will provide that particular care should be taken with low-level
offenders against whom a confiscation order is unlikely to be made. It
will also provide guidance on the definition of exempt property that
may not be seized. That point might be of interest to the hon. Member
for Hornchurch, because it relates to an earlier discussion. The code
will provide for a periodic review by a senior officer of the
continuing detention of property under a court order. I hope that that
informs the hon. Member for Chesterfield on what we expect the code of
practice to contain. Finally, I know that this will not specifically
answer the points made by the hon. Gentlemen, but a detention order is
subject to an appeal to the Crown court. If a detention order is made
in a magistrates court, a defendant can appeal to the Crown court if
they wish to object to the
order.
James
Brokenshire: If, as the Minister said, he wrestled with
the concept of whether the inspector was the appropriate level of
officer to use the power in the first place, how did he arrive at the
decision that a justice of the peace in a magistrates court was the
right level for the initial scrutiny? He will recognise that appeals to
the Crown court would be at a later stage. Our argument is that the
first line of defence should be the Crown
court.
Mr.
Coaker: I took advice from law enforcement officers. As we
heard, the member of the Association of Chief Police Officers who deals
with the issue said that he felt that the magistrates court was an
appropriate level of judicial scrutiny, as did the Serious and
Organised Crime Agency. In taking those organisations’ judgment
into account, I felt that that level was appropriate.
This is not
new; many of the Bill’s provisions replicate provisions in the
Proceeds of Crime Act 2002. Given the safeguards that I have mentioned,
I am satisfied that that is the appropriate level of judicial approval.
We recognise the seriousness of the powers—that is why there are
many safeguards. I take the point of the hon. Member for Hornchurch
that the initial decision is made in the magistrates court and that
although that decision is appealable to the Crown court, that is a
latter stage. However, that means that if the Crown court believes that
the magistrates court has acted disproportionately and unnecessarily,
it can vary or discharge the detention
order.
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