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Lord Thomas of Gresford: In rising to support the noble Lord, perhaps I may also speak to Amendment No. 2. Since Committee stage follows closely on Second Reading and yesterday I said all that I wanted to say in relation to the difficulties that a magistrates' court will face in dealing with these problems, I shall not repeat myself. It is probable that those who drafted this legislation had in mind confiscation orders in drugs legislation where applications are made to magistrates' courts for the recovery of assets. That matter was considered by the Runciman report in 1994 which followed an independent inquiry into the Misuse of Drugs Act 1971. Paragraph 53 of that report states:
- XAt present, except where a receiver is appointed by the High Court, the magistrates' courts are responsible for recovering the assets named in a confiscation order. They may find themselves called upon to enforce an order in an amount of several million pounds with a default term of up to 10 years. These are amounts and sentences wholly inconsistent with the maximum penalties that a magistrates' court can impose on conviction, and we doubt whether they are the appropriate jurisdiction for the task. We therefore recommend that the responsibility for enforcement should lie with the Crown Court not with the magistrates' courts".
Under the Bill this is a civil procedure which involves difficult areas of law. I believe that to require the High Court to intervene is to put it a little high. I do not believe that these are issues which should take up the valuable time of the High Court judiciary; instead, they should occupy the valuable time of the circuit judge of the county court who has complete expertise
in civil matters and should be able to resolve these questions. That is why I have tabled Amendment No. 2.
Lord Renton: I rise to support Amendment No. 1 and with it Amendment No. 16. I agree with the noble Lord, Lord Thomas of Gresford, that it would be better to give jurisdiction to the county court than the magistrates' court. But here we are breaking new ground in law in a very important and complex field. I would have thought that it was essentially a matter for the High Court. To allow the magistrates' court to decide the matter would be unusual. Magistrates' courts very rarely deal with civil matters. Although they deal with licences for intoxicating liquor, which can be described as civil proceedings, they are quite simple matters. To allow magistrates' courts to deal with civil proceedings in a new, complex and vital area of the kind referred to in the Bill, especially forfeiture of terrorist cash, would be unusual. I do not believe that it would have the confidence of the public. I am sure that my noble friends are right to suggest that the High Court should have jurisdiction.
The Earl of Mar and Kellie: The noble Lord, Lord Kingsland, said that he would not move Amendment No. 3, but I should like to speak to it since my name appears next to the amendment. This is one of a number of amendments proposed by the Law Society of Scotland which I believe will help to ensure that this emergency legislation is both Scots law-proof and devolution-proof. Amendment No. 3 is intended to probe why the code of practice needs to be modified when the Terrorism Act 2000, of which it is part, passed into law so recently.
Lord Elton: Like my noble friend Lord Kingsland, I struggle to keep up with developments. I apologise if I have misunderstood the position, but I should like to ask the noble Lord who is to reply for clarification. Is it not the case that the Proceeds of Crime Bill is a government measure and there proceedings equivalent to those with which we are now concerned—terrorist cash—will take place in the High Court? What is the reason for dealing with terrorist cash, which may be as large or even greater, in a very much lower court with normally far less discretion? Even if the reason is the need for expedition, I believe that the Committee will hesitate before giving to magistrates a complex procedure which may have very considerable financial impact and may finish up in the wrong place.
Baroness Carnegy of Lour: At Second Reading yesterday I asked the Government to give an assurance that they would be in constant touch with the Scottish Executive on the drafting of the Bill. This matter is an example of what I spoke about yesterday. If on examination, or by persuasion, the Government accepted that the High Court was the suitable venue, the question would arise whether in Scotland the right place was the sheriff court, as the Attorney-General readily appreciates.
In all these matters, when one is considering in this Bill which court is the right forum for decisions to be made, very careful attention should be paid to the drafting so there is no confusion in haste in reading across to the Scots system. If I spot it when the Committee comes to it I shall ask about the job which has been given to the Procurator-fiscal in Scotland. I do not quite understand the position. However, I believe that what I have said arises in relation to Amendment No. 1. If I can have that assurance I shall not continually refer to it, which may be rather tiresome. However, it is an extremely important matter. All the reasons given by previous speakers as to whether jurisdiction should be in the High Court or Crown Court apply equally to whether the sheriff court is the right place.
Viscount Bledisloe: In considering this matter I have looked at some of the matters that the court may have to decide in Part 5 of Schedule 1 to the Bill: property earmarked as terrorist property; tracing property; mixing property and chasing profits. All of those appear to me to be matters of singular legal complexity. Tracing and mixing property are normally matters dealt with in the Chancery Division because mere common lawyers cannot understand them. I should like to ask the Minister whether there is any special definition of Xmagistrates' court" for this purpose. Does it mean only a particular stipendiary magistrates' court or any magistrates' court? If it means any ordinary magistrates' court, surely there is a second problem in that very seldom can magistrates sit for several consecutive days to try these kinds of matters. To try to solve the questions we have been looking at on a series of single days, with adjournments in between before the court can be reconstituted, is asking the impossible of eminent, worthy laymen used to deciding simple questions of fact.
I do not have any great thoughts as between the High Court and the county court, but, unless the Minister can come up with a convincing answer, one or other of these amendments has to be right.
Lord Rooker: In replying for the first time today, I wish to thank noble Lords and the authorities of the House for the speed with which they have managed to marshal the amendments for the convenience of our debate. I realise the pressure that everyone has been under.
I shall take advice in regard to the noble Viscount's final question. The issues he raised are probably more relevant to the debate on Schedule 1, starting with Amendment No. 5, and I shall deal with them at the appropriate time.
In moving the amendment, the noble Lord, Lord Kingsland, made a case, but, throughout the Bill, the onus is on the Government to give evidence as to why we want to make changes. The cash forfeiture scheme in respect of terrorism is, as the Committee will appreciate, built on a similar scheme in respect of cash related to drugs. That scheme has been in force for a decade and proceedings in relation to drugs-related
cash have always been held in magistrates' courts. I have no evidence—and none has been adduced today—that there have been any problems in this respect. The procedure has been heavily used—there is no question of a one-off, isolated case—and noble Lords have not adduced any evidence of problems that I should take into account. The issues are fairly straightforward and, therefore, can be placed before a magistrates' court.If we moved the proceedings to the High Court, in particular, it would undermine the proposed scheme. It would increase expenditure enormously and might cause problems in meeting the important 48-hour deadline. There are some changes in the process of this scheme compared to other schemes, in terms of legal services and so on, but, if the amendment were agreed to, the 48-hour deadline for the first detention hearing would be seriously undermined.
The noble Lord, Lord Renton, said that we were breaking new ground. We are not. The procedure under the Drug Trafficking Act is well used in magistrates' courts. The Terrorism Act 2000 contains cash forfeiture procedures, which also take place in magistrates' courts. So far as concerns the Proceeds of Crime Bill, that is currently passing through another place. At the moment, it contains some 450 clauses, so I am not going to pre-judge what it may be like when it reaches your Lordships' House. That is not a reason for not answering the question, but the issue is covered in another Bill in another place and it will be several months before that Bill arrives here. Unless noble Lords can make out a case, based on evidence, that the present system has not worked in magistrates' courts, I ask the Committee to reject the amendment.
The noble Earl, Lord Mar and Kellie, referred to Amendment No. 3 and to the issue of the modified code of practice under Clause 1(5). The Home Secretary has made drafts of the modified code available and it has been placed in the Libraries of both Houses today. Members will therefore have an opportunity to see the draft code and to comment upon it. The amendment was brought forward because of a concern that the code would not be available before enactment. Quite clearly, that amendment is now unnecessary given the fact that the code is now available in the Libraries of both Houses.
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