Paul
Holmes: I have listened carefully to the Minister’s
reassurances, but I wish to press him further. In view of what the
police have said—presumably in light of their operational
experience—why do we need to ratchet this down to the
magistrates court? What specific problems have the police encountered
over the past five or six years? Has there been a lack of immediate
access to the Crown court, or has the Crown court not agreed enough
with the police? What has led the police to recommend this change to
the Government, when the Bar Council, for example, is alarmed at the
implications of moving from the Crown court to a lower
tier?
Mr.
Coaker: As I have said, we have taken the advice of the
police. The provision replicates similar powers in the 2002 Act,
particularly with regard to suspect cash. These are judgments that
people make. The magistrates court provides immediacy and speed of
action and the police or other law enforcement bodies can therefore act
speedily to ensure that assets are not dissipated. Given the
safeguards, particularly the appeal to the Crown court, this response
is appropriate and proportionate and I therefore ask the hon. Member
for Hornchurch to consider withdrawing the
amendment.
James
Brokenshire: The Minister’s response to our
arguments about the appropriate level of judicial oversight is neither
compelling nor persuasive. He talked about wrestling with his
conscience over whether the inspector level was the appropriate officer
level, and we may perhaps wish to come back to that. In essence, he
said that we should take great assurance from and rely on the code of
practice, but one of the problems is that the Government’s
assurance always seems to be based on something that is not published,
or is not available when we are considering significant and substantive
powers sought in a Bill. It is difficult for members of the Committee
to accept the Government’s assurance when we have not seen the
document and do not know what is in it.
We come back
to same issues, for example regarding the code of practice on
licensing, and I am sure that we will come to them regarding DNA
evidence—the Government have tabled amendments on that as well.
We just do not know the context. The Government believe that, because
of the code of practice, the magistrates court is a more suitable
route, but how can they say that with such
assurance—notwithstanding what the Bill might say about what the
code of practice may include—when we have not seen the code? We
can properly assess whether what we are mandating is appropriate only
when we have seen that detail.
James
Brokenshire: I will give way to the Minister, although I
think I know what point he will
make.
Mr.
Coaker: This is precisely why we sometimes try to lay out
in great detail the process of drawing up a code of practice. Bills
often state that a code of practice will be published in due course,
and I have therefore gone out of my way, with the officials, to ensure
that there are various stages to that process, which will, in the end,
be a matter for Parliament to decide. Also, this is a similar
practice to that found in other codes of practice—in the Police
and Criminal Evidence Act 1984, for example. However, I have tried to
respond to the points that the hon. Gentleman has made in the way that
the Bill was drawn up.
James
Brokenshire: I am grateful to the Minister for going out
of his way, to use his phrase. However, I still do not think that that
is sufficient. Whatever may go into a code of practice or guidance on
the way in which these powers can be utilised, that code of practice
cannot get to the root of complicated and fundamental points of law and
the judgments that will have to be reached on those points of
law.
As the
Minister will know, in the past I have, sadly, been a lawyer and
practised law. I can therefore tell him that issues of equity, legal
interest and tracing claims of ownership are very technical issues,
which are quite challenging. That is the fundamental point that the Bar
Council is seeking to make in the matters that it highlights. When the
Minister talked about the various groups and organisations that he had
consulted when he was determining that this level of judicial oversight
was correct, it was interesting that they all seemed to focus on the
enforcement side. There did not seem to have been any consultation
with, for example, the Magistrates Association or with the judiciary
themselves. Indeed, the Bar Council has made its views very clear,
through the note that it provided to this Committee.
If the police
and the Serious Organised Crime Agency are saying that they require
scrutiny to be at this level, perhaps because of certain practical
issues such as the availability of judges or other associated issues,
that should be considered. However, I do not think that the Minister
has said that. He has said that he has consulted those agencies and
they have advised him that they believe that this is the most
appropriate level of scrutiny to be applied, but without necessarily
giving back-up information or justification for that.
The point was
made that the Crown court is used as the appropriate level of judicial
scrutiny for restraint orders, which, it is argued, are less intrusive
than the types of orders that we are contemplating here. Therefore,
although I understand that the Minister has said that he believes that
this level of scrutiny is appropriate in the circumstances, I do not
think that he has made his case sufficiently strongly to persuade us.
That is why I want to divide the Committee on amendment 108.
Question
put, That the amendment be
made. The
Committee divided: Ayes 6, Noes
7.
Division
No.
6] Blackman-Woods,
Dr.
Roberta Question
accordingly
negatived.
Mr.
Coaker: I beg to move amendment 261, in
clause 36, page 32, line 29, leave
out subsection (2) and
insert— ‘(2) The property
may be detained initially for a period of 48
hours. (2A) But it must be
released if within that period the appropriate
officer— (a) ceases to
be satisfied as mentioned in section 47B(1),
or (b) ceases to have
reasonable grounds for the suspicion mentioned in section
47C(1).’.
The
Chairman: With this, it will be convenient to
discuss the following: amendment 113, in clause 36,
page 32, line 29, leave out subsection (2)
and insert— ‘(2) Provided
that any of the conditions referred to in section 47B continue to be
satisfied, the property may be detained initially for a period of 48
hours’. Government
amendments 263 and
264.
Mr.
Coaker: After the Division, may I restore harmony and also
reassure the hon. Member for Hornchurch that I have not abandoned my
style and approach by saying that, with respect to this particular
group of amendments, I see a lot of merit in amendment 113? It raises
some important issues. However, I would just like to go through the
Government amendments, which I believe address the point that the hon.
Gentleman has made in amendment 113. It is important to put this on the
record. I
confirm that our policy intention is that property may be detained
under proposed new section 47J only for as long as the appropriate
officer is satisfied that all conditions under proposed new section 47B
continue to be met and he or she continues to have reasonable grounds
for suspecting that the property might be dissipated. If the officer is
not satisfied on either count, I accept that the property must be
released. Government amendment 261 deals with that important point. I
am grateful to the hon. Members for Hornchurch and for Bury St. Edmunds
for identifying the gap in the
provisions. 11.15
am
Government
amendments 261, 263 and 264 will add to the new sections of the 2002
Act proposed in clauses 36 to 38. Those provide powers to search and
seize property that might otherwise not satisfy a confiscation order or
might be diminished in value. We tabled the amendments in response to
amendments tabled by the Opposition and we are grateful for their
assistance in pointing out the issue. We had taken the point to be
implicit, but in response to amendment 113, we are making it
explicit. The
Government amendments will add a further safeguard to the operation of
the powers, which I think will be welcomed by the Committee. If an
officer seizes property, he may detain it for 48 hours before obtaining
judicial approval for its continued detention. The amendments clarify
that the proposed new section 47B preconditions to exercise the power,
and the suspicion of dissipation mentioned in proposed new section
47C(1), must still exist for the continued detention of the property
during the 48 hours. That will place a much stronger obligation on the
seizing officer to continually consider the grounds on which he
operates the powers and the reasons for which the property was
seized.
I will take
this opportunity to signal to the Committee that I will table a further
amendment on Report. In our 12 February sitting, we a had a
constructive debate on the need for the police and others to use
seizure and detention powers with care and discretion. We all accept
that seizing someone’s property is a serious matter. I undertook
to consider further the matter of proportionality in the use of powers
to detain seized property, and I have done so. I see some
merit—a lot of merit, if I am honest—in inserting an
explicit obligation for the detaining officer to release property when
they are no longer satisfied that the conditions for its detention are
met. Necessity and proportionality will be an ongoing consideration,
but as a strong indication of the importance that I attach to the
proportionate use of the powers, I will place such an obligation
clearly in the
Bill. I
know that I disagreed with Opposition Members on the last point, but I
hope that I have given them and those who read our debates some
reassurance that we are continually considering how these necessary
powers can be used proportionately, as they are a significant extension
of
powers.
James
Brokenshire: As the Minister said, Government amendment
261 addresses the issue we raised in tabling amendment 113, but in a
slightly different way. Clearly, our point has been taken on board. We
welcome that and the Minister’s preparedness to accept our
points on the operation of clause 36. I also note his comments on
proportionality, which we debated before the recess. We look forward to
seeing his amendment on Report to address the need for these powers to
be used in a reasonable
way. We
are grateful to the Minister for listening to our points and for
tabling the amendments. Government amendments 263 and 264 will make the
same changes as amendment 261 in subsequent provisions. On that basis,
we accept the Government amendments that will implement our
proposal. Amendment
261 agreed
to. Amendments
made: 164, in
clause 36, page 32, line 41, at
end insert— ‘(3) If such an
application is made within that period and the application is refused,
the property may be detained until there is no further possibility of
an appeal against— (a)
the decision to refuse the application,
or (b) any decision made on an
appeal against that
decision.’. Amendment
165, in clause 36, page 32, line 41
, at end insert— ‘(4)
In subsection (2) the reference to the period mentioned in section 47J
includes that period as extended by any order under section
47M.’. Amendment
166, in
clause 36, page 33, line 7, at
end insert— ‘(3) If such an
application is made within that period and the application is refused,
the property may be detained until there is no further possibility of
an appeal against— (a)
the decision to refuse the application,
or (b) any decision made on an
appeal against that decision.’.—(Mr.
Coaker.)
James
Brokenshire: I beg to move amendment 114, in
clause 36, page 33, line 15, leave
out ‘ A magistrates’ court’ and insert ‘The
Crown Court’.
The
Chairman: With this it will be convenient to discuss the
following: Amendment 115, in clause 36,
page 33, line 27, at end insert
‘provided that the Court shall only
extend the period of detention under Clause 47J by such period as it
considers reasonable and
proportionate’. Amendment
116, in
clause 36, page 33, line 36, leave
out subsection
(5). Amendment
117, in
clause 36, page 33, line 40, at
end insert— ‘47MA Right of
third parties to make
representations (1) The Crown
Court must, on an application by a person, give the person an
opportunity to make representations in proceedings before making an
order under section 47M if it considers that the making of the order
would be likely to have a significant adverse effect on that
person. (2) The Crown Court
must, on an application by a person, give the person an opportunity to
make representations in proceedings before it about the variation of an
order under section 47M if it considers
that— (a) the variation
of the order; or (b) a decision
not to vary it; would be likely
to have a significant adverse effect on that
person. (3) The Crown Court
must, on an application by a person, give the person an opportunity to
make representations in proceedings before it about the discharge of an
order under section 47M if it considers
that— (a) the discharge
of the order; or (b) a decision
not to discharge it; would be
likely to have a significant adverse effect on that
person. (4) The Court of Appeal
when considering an appeal in relation to an order under section 47M
must, on an application by a person, give the person an opportunity to
make representations in the proceedings if that person were given an
opportunity to make representations in the proceedings which are the
subject of the
appeal.’. Amendment
118, in
clause 36, page 34, line 21, leave
out ‘magistrates’ court’ and insert ‘Crown
Court’. Amendment
119, in
clause 36, page 34, line 23, leave
out ‘Crown Court’ and insert ‘Court of
Appeal’. Amendment
120, in
clause 36, page 34, line 25, leave
out ‘Crown Court’ and insert ‘Court of
Appeal’. Amendment
121, in
clause 36, page 34, line 26, leave
out ‘magistrates’ court’s’ and insert
‘Crown
Court’s’. Amendment
122, in
clause 36, page 34, line 29, leave
out subsection
(3).
| 
