Policing and Crime Bill

[back to previous text]

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,”
“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.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 25 February 2009