Ivory Bill

Supplementary written evidence from the British Art Market Federation (BAMF) (IVB14)

Briefing Note on powers and sanctions in the Ivory Bill

Concerns in regard to powers of entry search and seizure (clauses 14 to 24)

The Bill as currently drafted gives wide powers to the police and customs officers. In clauses 14, 15 and 16 these powers include stop and search persons, stop and search vehicles and to board and search vessels and aircraft. These are not untypical; they are replicated in other statutes, most notably the Police and Criminal Evidence Act 1984 ("PACE"). Other clauses confer powers on the police as regards the obtaining and execution of search warrants, and the seizure of "any item" found on the premises (an undefined and unrestricted term). Again, these are not untypical. Their exercise is governed by detailed codes of practice, breach of which can lead to the evidence becoming inadmissible at trial.

However, in a step which is unprecedented in legislation of this type and only found in cases where the safety of the public is threatened, clause 17 of the Bill empowers "an accredited civilian officer" ("ACO") to enter premises without warrant for the purpose of (a) promoting an understanding of the legislation or (b) to assess compliance. Further, once there, the ACO can search the premises if he has reasonable grounds there is evidence of an offence. This exceeds even the powers which the police have under PACE to enter and search premises without a warrant. Curiously, the Bill does not include the police in clause 17. The scope for abuse is obvious.

The Bill also gives the ACO freestanding powers to enter and search premises where they have reasonable grounds to believe that there is evidence of an offence. "Reasonable notice" must be given, but if the ACO is concerned about the disappearance of evidence, s/he will doubtless apply for a warrant.

The Explanatory Notes to the Bill (Paragraph 22) state that these powers are derived from and applied in line with the Police and Criminal Evidence Act 1984. There is no reason why, if the ACO or any representative of the Secretary of State believes that an offence has been committed, the police should not, as in other offences of this nature, be asked to investigate, as is the current practice. There appears to be no reason in policy for a change of this magnitude. The Secretary of State has not yet stated who these "accredited civilian officers" will be; there is no indication of even the minimum qualification or experience which the ACO must have. Yet they would be able to exercise the powers without needing to consider the protective framework of PACE and other existing legislation.

The position becomes even more serious in that it is open to an ACO to apply to a court for a search warrant, i.e. the ACO has exactly the same powers as the police, and can execute the warrant without the presence of the police. The ACO may also take onto the premises anyone who "is likely to be helpful to the search". This is unprecedented, even for the police. There is very little accountability in regard to applications for a search warrant. A police application requires the authorisation of a senior police officer. Accredited civilian officers can be authorised by a relatively junior Grade 7 ACO. As with police, they can decide not to provide a defendant with notice of the warrant application if there is reason to suspect that it may seriously prejudice the investigation (clause 19(6)). As it is assumed that this will be an argument in most warrant applications, the notice provision is little safeguard against civilian officers, who are subject to no oversight under PACE or other legislation, abusing these powers.

No reason is provided as to why accredited civilian officers need to have the search and seizure powers that the Bill gives to them. If an accredited civilian officer has information which means a search may be necessary, they could require the police or customs to obtain a warrant. If the accredited civilian officers have specific expertise which would assist with a search, the police are already able to have persons with a certain expertise accompanying them when serving their warrant.

Similar powers for an individual to turn up and demand entry were suggested in early drafts of the Financial Services and Markets Bill, but were deemed to be inappropriate and removed from the Bill at an early stage.

Amendment: clause 17 should be deleted, and references to accredited civilian officers applying for warrants and exercising powers in clauses 18-22 should be deleted. The powers in the bill should be reserved for the police and customs officers only, who are required to exercise them in accordance with existing legislation and codes of practice that protect the rights of persons under investigation or perhaps not even under investigation.

Civil sanctions

The civil sanctions regime envisaged by Schedule 1 creates concerns. Unlike all other statutes of the nature, and especially the Financial Services and Markets Act 2000, there is absolutely no fair process prior to the exercise of these powers. It is not clear who will be issuing these penalties on behalf of the Secretary of State. It might even be the investigators who have conducted the searches, completely contrary to established practice in ensuring that investigators and decision-makers are kept separate. So, if this exercise of the power is on the advice of the ACO referred to above, the ACO will be "investigator, judge and executioner".

While civil and criminal sanctions can run in parallel (and there are precedents for them doing so under the financial services regime for market abuse and insider dealing), it is important that proper processes apply to the civil sanctions.

The civil sanctions in the Bill are likely to require the higher criminal standard of proof (beyond reasonable doubt) because the activity leading to the penalty is criminal, but well-established principles in other legislation, both civil and criminal are missing. Nothing is said about defendants having access to the case against them and information that would undermine the Secretary of State’s decision that they would have in a criminal prosecution or any other civil penalty regime. A decision to issue civil sanctions will be made with relatively little transparency, "behind closed doors".

A defendant is entitled only to make written representations if he objects to a monetary penalty (Schedule 1, paragraph 2(3)). He has no right to make oral representations, in contrast to any other regime where civil penalties can be imposed. While appeal is possible, it is on very limited grounds (Schedule 1, paragraph 2(6)). There is a lack of clarity as to whether the reference to "unreasonable" in the grounds of appeal has its usual dictionary meaning or its more limited public law sense (a decision that no authority properly directing itself could have reached). The latter interpretation would be extremely restrictive.

The process set out in the Bill contrasts sharply with the financial services legislation under the Financial Services and Markets Act 2000, the tax avoidance legislation and other statutory regimes forbidding conduct akin to crime, e.g. market abuse, where an enforcement team investigating a person would issue a warning notice to that person, giving him the right to make oral and written representations to a committee that is independent of the enforcement team. The Committee then decides whether the enforcement case should proceed, independently of the investigators. If it does, the defendant is entitled to have full access to the information on which the proceedings are based. An appeal is possible by making a reference to a first tier tribunal which is completely independent. This is the first time the defendant can actually have the evidence to which he is entitled. The reality is that, as the appeal process is formal, few of those who are covered by the legislation will be able to afford lawyers, which is why fairness and better process need to be built into the earlier informal stage.

Amendment: The civil sanctions process in Schedule 1 needs to be amended to give persons being investigated better rights of access to the case against them, and better rights of representation and appeal, consistent with those available under the financial services civil sanctions regime.

June 2018

 

Prepared 19th June 2018