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Lord Rooker moved Amendment No. 57:
- Page 22, line 7, leave out paragraph (b).
On Question, amendment agreed to.
Clause 33, as amended, agreed to.
Clause 34 [Appeal to House of Lords]:
Lord Rooker moved Amendment No. 58:
- Page 23, line 20, leave out paragraph (b).
On Question, amendment agreed to.
Clause 34, as amended, agreed to.
Clause 41 [Conditions for exercise of powers]:
Baroness Buscombe moved Amendment No. 59:
- Page 27, line 12, leave out "Crown" and insert "High"
The noble Baroness said: The amendment seeks to ensure that unusually complex cases can still be heard in the High Court.
The removal of the High Court jurisdiction over restraint orders could, on one view, be seen as welcome. It would bring, as we believe that the Government intend, all confiscation and restraint matters into a single forum: that is, the criminal courts. It would end the anomaly of having to apply for civil legal aid in the context of criminal proceedings when one is faced with a restraint order for which criminal legal aid has been granted.
However, proprietary rights can be extremely complex, often involving several parties and a number of different jurisdictions. Previously restraint orders were considered sufficiently complex to require the expertise of the High Court jurisdiction and High Court judges more used to dealing with these matters.
We are of the view that the Crown Court may not be a suitable jurisdiction, particularly for some complex cases. Bringing the matter within the jurisdiction of the Crown Court should at the very least trigger a very high degree of training of Crown Court judges to deal with such matters. Alternatively, the Crown Court judge should be allowed to refer complex matters to the High Court or at least ensure—the amendment does not reflect this—that only High Court judges sitting in the Crown Court deal with restraint orders. This would be similar to the current provisions relating to the changing of the Crown Court trial venues which can be dealt with only in front of a High Court judge.
As the Bill is drafted, a complex matter could come before a newly qualified recorder who is required to deal with sophisticated financial orders which until now have been dealt with only by experienced High Court judges. I very much support what Mr Dominic Grieve, Member for Beaconsfield, said in another place when he sought reassurance from the Lord Chancellor's Department on the training programme envisaged and the resources available.
We are concerned that, as drafted, the proposal risks specialist work being spread too thinly. In that case there will be bad decisions by inexperienced judges leading to a plethora of appeals. We suggest, also, that there may be a reluctance by police prosecutors to expose themselves to legal areas with which they are unfamiliar. In addition, it could lead to inconsistency of decisions around the country, resulting from local areas following their own practice. The result stemming from that is adverse decisions preventing
deployment of the jurisdiction in that area. The proposal is inconsistent with the "centre of excellence" theory proposed by the Bill in relation to training investigators to remove the restraint and receivership work to local areas and Crown Court judges.A further consideration is that there are no practice rules for the Crown Courts for civil proceedings. Even if there were rules, redrafted and created, it is completely contrary to the practice and experience of the Crown Court to administer a highly complex civil jurisdiction, produce detailed orders, keep a court file in the same sense as a civil court and allow inspection by parties of the court file. There are no qualified lawyers assisting Crown Court judges. That could have an adverse impact on Crown Court time and on its carrying out what it is supposed to do, which is to try criminal cases. Specialist civil work is heavy on preparation time and on time to prepare reserved judgments. To be effective I respectfully suggest that the work must be done by specialists.
At present there is no evidence that the High Court administers the work badly or inefficiently. Nor is there evidence of it having too much work to cope with. We believe that the contrary is true. In short, we are concerned that this proposal is counter-productive. I look forward to the Minister's response. I beg to move.
Lord Bassam of Brighton: An identical amendment was tabled and debated in another place on 29th November last year. On that occasion, we made clear that this fundamental change to the legislation is needed to ensure that confiscation is converted from an incidental disposal into one that is routinely used in criminal cases. Transferring restraint proceedings to the Crown Court was a specific recommendation of the report of the Performance and Innovation Unit on which the Bill is substantially based.
We remain of the view that the transfer of restraint from the High Court to the Crown Court is fully justified. Our starting point is the number of restraint orders currently made. As the PIU report pointed out, there were only 252 orders made in 1997 and 247 in 1998. Throughout Part 2 of the Bill the Government's aim is to increase the use of confiscation as a tool against acquisitive crime. Effective and early restraint is a critical element of that process. The ease and speed with which cash and assets can be concealed and transferred to the safety of foreign jurisdictions requires that assets must be frozen to prevent that happening.
The Government consider the transfer of the restraint function to the Crown Court to be unavoidable given the anticipated rapid growth in asset recovery proceedings in general. In our view, the Administrative Court would simply not be able to cope with the heavier workload. I remind the Committee that the Crown Office of the High Court is the only forum currently authorised to hear such cases. It numbers just 20 judges, who sit mainly in London and deal with a huge range of work and not just
restraint proceedings. It is vital that restraint orders are available routinely and at local level to support the greater number of confiscation cases that we envisage.In short, as a recently retired High Court judge put it in response to the consultation exercise on the published draft clauses for the Bill earlier this year,
- "transferring the jurisdiction from the High Court to the Crown Court is likely to be beneficial".
I remind the Committee that the Crown Court has been dealing with complex property issues for many years by virtue of its existing involvement in post-trial confiscation proceedings. Those proceedings can be extremely complex, but we have never heard it suggested that the Crown Court is unable to cope with them. In addition, as the PIU report pointed out, the increasing throughput of restraint cases will help to build up the Crown Court's expertise in that area. For those reasons I strongly oppose the amendment and invite the noble Baroness to withdraw it.
Baroness Buscombe: I thank the Minister for his response. I make no apology for the amendment being identical to one tabled in another place. We were not happy with the response in another place so we tabled it again in your Lordships' House.
We believe that this proposal is not practical and we do not believe that it will work for all the reasons that I suggested. It would be otiose of me to repeat them, but we shall consider carefully whether to return to the matter at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rooker moved Amendment No. 60:
- Page 27, line 36, leave out from first "the" to end of line 37 and insert "relevant amount (as defined in that section)"
On Question, amendment agreed to.
Lord Rooker moved Amendment No. 61:
- Page 27, line 44, leave out from first "the" to end of line 45 and insert "relevant amount (as defined in that section)"
On Question, amendment agreed to.
Baroness Buscombe moved Amendment No. 62:
- Page 28, line 14, at end insert—
The noble Baroness said: The purpose of this amendment is to prevent property and funds of a suspect and third parties being frozen pre-charge for unnecessarily long periods. Allowing restraint orders
In that case is it being suggested that property may be restrained for the whole of that period? Clause 41(2) states that a restraint order may be made if,
It should also be noted that Clauses 48 to 53 deal with receivers. Again, the Bill distinguishes between management receivers appointed in relation to restraint orders and enforcement receivers who are appointed once a confiscation order has been made. These are appointed in the Crown Court and this highlights the necessity for a high degree of training for Crown Court judges. Many judges will have had no experience at all of these areas and the potential for miscarriages of justice is alarming. I beg to move.
Lord Goodhart: This group of amendments includes three amendments in our name. The first is Amendment No. 64. It is intended to achieve the same purpose as the amendment of the noble Baroness. We are agreed that we are concerned about this issue. We propose a slightly different solution, which is that when a restraint order is made it should be made for a period not exceeding 12 months. There would be power to make a further restraint order before the end of the 12 months. The purpose is to ensure that any restraint order is reviewed at yearly intervals.
It is quite clear that it would be wholly wrong for a restraint order to be imposed and then left while the prosecution dillies and dallies over the investigation or indeed the trial itself. That has been recognised by the Government in Clause 43(7), where it is stated that if,
We believe that the most effective way of ensuring that that result is achieved is by requiring any order to be reviewed by the court at intervals of not more than a year. That will clearly encourage the prosecution to keep moving and to make sure that it is not at risk of
"( ) any period of investigation exceeding 12 months will be presumed to constitute undue delay unless otherwise shown. A restraint order can be made for a maximum of 6 months and must be reviewed unless extended by written consent"
"a criminal investigation has been started in England and Wales with regard to an offence, and there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct".
One hopes that a court will be rigorous in requiring a high standard of information from the investigating agency, not the prosecuting body, since no charges will have been brought before making an order. However, experience suggests that this will not be the case and that a court will impose a restraint order, albeit on flimsy information impacting on someone's personal life; for example, an innocent third party trader whose stock is frozen during an investigation leading to him becoming bankrupt to an enormous extent and for many years, when theoretically no charges may be brought at all. Indeed, there may be Article 8 considerations in this regard.
9.15 p.m.
"an investigation was started or an application was to be made, the court must discharge the order if within a reasonable time proceedings for the offence are not started or the application is not made".
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