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Baroness Buscombe moved Amendment No. 4:
- Page 2, line 24, at end insert—
The noble Baroness said: Amendment No. 4 is grouped with Amendment No. 5, but I shall speak only to Amendment No. 4. The purpose of the amendment is to clarify the specific functions of the asset recovery agency.
Part 1 of the Bill—Clauses 1 to 5—deals with the establishment of the asset recovery agency. The establishment of the agency is intended as a measure to rationalise and to co-ordinate the recovery of assets tainted by criminality through confiscation, civil recovery, the exercise of revenue functions and the training of financial investigators.
Clauses 1 to 5 are silent as to the specific functions of the director of the asset recovery agency. Those functions are, as is said in the Explanatory Notes, to be found in other provisions of the legislation. However, it is noteworthy that the director of the agency is generally referred to only in conjunction with the existing powers of prosecutors and, in certain circumstances, the courts, to initiate, to process and to enforce confiscation proceedings. The exception is in relation to the provisions relating to civil forfeiture.
Clause 3, which sets out the duties of the director to set up accreditation and training programmes, is to be commended. Asset recovery and confiscation are complicated areas and the current arrangements have
Lord Rooker: In view of the brevity of the noble Baroness I shall not use my extensive notes. The noble Baroness is right that the director's functions are not laid out in one specific part of the Bill, but they are covered. Perhaps I can give a brief rundown of them. The director's functions will be, as set out in Parts 2 and 4, to initiate and pursue confiscation proceedings against convicted defendants in England, Wales and Northern Ireland; in Part 5 to recover the proceeds of crime by bringing civil recovery proceedings in England, Wales and Northern Ireland; in Part 6 to exercise revenue functions in the United Kingdom where there is a reasonable suspicion of the presence of the proceeds of crime; in Part 8 to carry out criminal confiscation and civil recovery investigations; in Part 11 to assist overseas public authorities to identify and recover the proceeds of crime (where an Order in Council is made under Part 11 to confer such functions on the director); in Clause 3 to provide training and to set up a system for the accreditation of financial investigators; in Clause 4(2) and Clause 432 to co-operate with other law enforcement agencies; and in Clause 5 to provide advice and assistance to the Secretary of State.
I hope that that brief summary will reinforce the fact that the functions of the director are in the Bill, but they are set out in the relevant parts, bearing in mind the functions deployed. It would be otiose to restate them all in one place in the Bill.
Baroness Buscombe: I thank the Minister for his response. I am sorry that he did not respond positively to what we believe is a helpful suggestion. It would be nice to have the functions of the asset recovery agency up front so that anyone considering the Bill, when it is an Act, will have them in a nutshell. I entirely understand what the Minister has said. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rooker moved Amendment No. 6:
The noble Lord said: In moving this amendment I shall speak also to Amendment No. 7. This amendment clarifies that the director can provide different classes of accreditation for different purposes to financial investigators. We want to make it explicit that Clause 3 does not provide only for a single general training and accreditation scheme for financial
Parts 2, 4 and 8 of the Bill provide investigators with access to powers to restrain property and certain investigation powers. Access to those powers will be partly governed by the director. He will be able to accredit civilian investigators whom he considers, against established criteria, suitable to use the relevant powers in the Bill. He may accredit investigators to use only the powers under Parts 2 and 4, to use only the powers under Part 8 or to use all the powers given to financial investigators under the Bill.
The investigation powers for which accreditation may be granted are production orders; search warrants; customer information orders (circulars to banks requiring them to report any account held by a person under investigation); and account monitoring orders (orders requiring a bank or other financial institution to provide transaction information on a suspect account for a specified period). The latter two are new powers. The customer information order will require the authorisation of a senior officer before an application can be made. We envisage that there will be a separate form of accreditation for those who are to authorise applications. That is because the skills necessary to authorise applications are different from those necessary to make an application.
In summary, the amendment simply clarifies that civilian personnel will be able to be accredited to use the restraint powers, investigation powers or both. In addition, they may also be accredited to fulfil the role given to senior officers of authorising the use of such powers. I beg to move.
On Question, amendment agreed to.
Lord Rooker moved Amendment No. 7:
On Question, amendment agreed to.
Clause 3, as amended, agreed to.
Clause 5 [Advice and assistance]:
Lord Kingsland moved Amendment No. 8:
The noble Lord said: The purpose of this amendment is to clarify the ARA's status and function in relation to the other investigative and prosecuting agencies.
To us at any rate, it is far from clear how the ARA's investigative functions and its functions in confiscation proceedings, will relate to those currently being exercised by the confiscation units of other prosecuting agencies. For example, Part 2 of the Bill, which deals with confiscation, makes clear that the director, the prosecutor or the court may initiate and maintain such proceedings.
In these circumstances one wonders whether there will be turf wars and, more importantly, how it will be decided which agency carries out the proceedings and enforces any judgment. For example, what happens if the prosecutor wishes to move to confiscation but the ARA does not? What about the reverse position?
Again, Part 10 of the Bill relates to the disclosure of information from the director and specifically refers to the disclosure of information to a prosecutor in the exercise of his or her functions under Parts 2 to 4 of the Bill. Will the ARA carry out investigations and pass on information to the prosecutor? If this is so, what are the implications for the existing confiscation and financial investigation units in the prosecuting agencies?
In general, one would wish for greater detail in relation to the actual functions of the ARA and its relationship with existing prosecuting agencies—in the exercise of their main functions in restraint and confiscation proceedings in particular and, to a lesser extent, in civil asset recovery proceedings. I beg to move.
Lord Rooker: As regards the points which the noble Lord, Lord Kingsland, has raised, it may be worth saying at the outset that the Bill provides that the director will share the confiscation functions of the law enforcement and prosecuting authorities in England, Wales and Northern Ireland. That will allow those authorities to ask the director to handle the financial investigation and confiscation aspects while they concentrate on the criminal investigation and proceedings.
Clearly, there are issues as to how the shared order will work in practice and that is recognised. It will be a key element in the memorandum of understanding drawn up between the agency and the enforcement and prosecuting authorities. That memorandum will serve to prevent turf wars because, with a new organisation, one has to be very careful to guard against such events being generated almost by accident.
The director will receive most of his cases from the law enforcement and prosecution authorities in the first place. He will need to keep in close contact during his investigations. As I have said, we envisage that there will be a memorandum of understanding. Guidance will be issued. It is intended to help the director. It will be for him to decide how to best exercise his functions.
I am not sure what the noble Lord, Lord Kingsland, said as regards doubts about the functions of the assets recovery agency. There is no question but that will be a formidable operation. Looking at the Bill and the
As regards England, Wales and Northern Ireland, decisions will have to be made as to when a case should be referred to the director for possible civil recovery action because the possibility of taking forward a criminal prosecution has been ruled out.
We have made clear that decisions by law enforcement agencies as to whether or not to continue with a criminal investigation or to prosecute will be taken without reference to the possibility that civil recovery or taxation might subsequently be taken by the agency. Decisions will be taken in accordance with the normal evidential and public interest tests. We believe that that is the right approach because it will be a matter for the director to decide which of the cases referred to him by law enforcement authorities should be taken forward by him in the light of his objectives and resources.
I can confirm that the existing agencies are already considering which cases might be referred to the director once the agency has been established. But a considerable amount of detailed work, including that involved in preparing the memorandum of understanding, will have to await the appointment of the director. In the light of my comments I hope that noble Lords will appreciate that we do not see a need for the type of arrangements envisaged in the amendment. We actively oppose any role for the Secretary of State in taking what should be operational decisions.
"( ) The specific functions of the Agency are to trace and investigate ownership of property where there is a reasonable belief that possession of property is unlawful due to its being derived from criminal activity."
4.15 p.m.
Page 2, line 25, leave out subsection (2).
Page 2, line 31, at end insert—
"(3A) A person may be accredited—
(a) in relation to this Act;
(b) in relation to particular provisions of this Act.
(3B) But the accreditation may be limited to specified purposes.
(3C) A reference in this Act to an accredited financial investigator is to be construed accordingly."
Page 3, line 11, at end insert—
"( ) Where there is dispute between the agencies as to the appropriate means of proceeding, the dispute shall be referred to the Secretary of State, or alternatively will be decided by a code to be drawn up by the Secretary of State prior to implementation."
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