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Lord Goldsmith: First, I address Amendment No. 40 which proposes that dual criminality should be a requirement in relation to any request for evidence. The noble Baroness has already provided the answer to that point, as has the noble Lord, Lord Carlisle. I refer to the position under the 1990 Act. That Act does not require that the dual criminality requirement should be met, and neither does the provision we are discussing. I suggest to the Committee that it is absolutely right that it should not. To require a demonstration that the offence is an offence in this country would require an overseas authority investigating an offence under its own law to take on an unnecessary burden. By parity of reasoning we would not want overseas authorities to decline to deal with our requests on the ground that they were not sure that the matter about which we complained as a potential criminal offence was a criminal offence under their law as well.
The noble Lord, Lord Carlisle, asked why there is different provision in relation to fiscal offences. I suggest that the answer to that is that there is always different provision in relation to fiscal offences. They are regarded as of a particular character. I refer to traditional enforcement and assistance in regard to other countries' revenue laws. Those matters have always been treated in a special way. I anticipate—I shall be corrected if I am wrong—that that background has resulted in a different regime in relation to fiscal offences. The noble Lord may recall from his practice at the Bar special rules under which English courts do not recognise certain decisions in relation to fiscal matters, whereas they do in relation to other matters.
I turn to Amendment No. 41. The answer is the same. This is precisely the provision under the 1990 Act; namely, that a certificate should be conclusive. The territorial authority is not required to go behind the request and independently establish the facts of the case. I suggest that that was right in 1990 and remains right today. It would be impractical and undesirable to do otherwise. We would expect other countries to treat
our certificates with the same respect, in the event that a certificate is necessary at all. With that explanation, I invite the noble Baroness to withdraw the amendment.
Baroness Anelay of St Johns: I appreciate that reply which goes to the heart of the matter. There is a quid pro quo here. It is a matter of mutual recognition. We must be able to ensure that other countries are prepared to take action when we want them to do something on our behalf. I refer to the Minister's comments on the 1990 Act. We seek to test the waters to find out how that Act has operated so far and whether its operation may be changed slightly as a result of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [Nominating a court etc. to receive evidence]:
Baroness Carnegy of Lour had given notice of her intention to move Amendments Nos. 42 and 43:
- Page 9, line 17, leave out "Lord Advocate" and insert "Scottish Ministers"
- Page 9, line 21, leave out "Lord Advocate" and insert "Scottish Ministers"
The noble Baroness said: I should explain that on a previous occasion I explained to the Committee that I had been in discussion with the Law Society of Scotland about the position of the Lord Advocate as regards certain aspects of the Bill. I had further discussions yesterday and discovered that the society was in considerable doubt as to the case that it wanted me to make. Therefore, I agreed with the society and with my noble friends not to move the relevant amendments. However, if the society comes forward with further cogent arguments, I may have to remedy the matter on Report. In the meanwhile, I shall not move the amendments.
[Amendments Nos. 42 and 43 not moved.]
Lord Goldsmith: The noble Baroness has given warning.
Clause 16 [Extension of statutory search powers in England and Wales and Northern Ireland]:
Baroness Anelay of St Johns moved Amendment No. 44:
- Page 9, line 41, after "constable" insert "or customs officer"
The noble Baroness said: In moving Amendment No. 44, I wish to speak also to Amendments Nos. 45, 48 and 50 with which it is grouped. The whole purpose of this group is to test the statement at page 10 of the Government's Explanatory Notes about Article 13 of the convention.
The Explanatory Notes state at paragraph 58 on page 10, with reference to Clause 16:
- "Subsection (2)(b) provides that a search warrant or production order may be applied for and executed without an overseas request if the constable who makes the application is a member of an
- international joint investigation team (as defined by subsection (5)) . . . These provisions implement Article 13(7) of MLAC which contemplates investigative measures being undertaken without such a request by seconded members of a joint investigation team in relation to the team's investigations overseas".
Amendment No. 45 seeks to write into the Bill the relevant wording in the Explanatory Notes. Paragraph 58 of the Explanatory Notes states:
- "The constable making the application for the warrant or order would have personal knowledge of the joint investigation as he would in making such an application in a domestic investigation".
Amendment No. 48 would require that any evidence seized by a constable by virtue of the provisions in Clauses 16, 17 and 18 would have to be delivered to the court or authority which made the request for assistance within such time as the Secretary of State may by order prescribe. I am, of course, always wary of giving additional powers to the Secretary of State—he has enough—but this is a probing amendment designed to clarify the timescale within which the seized evidence will have to be delivered to the court or authority that made the request.
Amendment No. 50 is in similar vein. It seeks to prompt clarification from the Government on whether or not it will be standard practice to make and retain copies of the evidence obtained under Clauses 16, 17 and 18 before forwarding it to the relevant overseas authority. The evidence may be lost in transit, damaged or destroyed for some other reason. Do the Government plan that there should be a copy or photograph of the evidence as a back-up to cater for those eventualities? I beg to move.
Lord Goldsmith: I shall deal first with Amendment No. 44. The answer to the question raised by the noble Baroness, Lady Anelay, is to be found in Clause 27(1)(b). She asked about customs officers. Clause 27(1)(b) provides for a power under which customs officers can be granted any of the powers conferred on police officers under Clauses 13 to 26.
I turn to Amendment No. 45. It may help if I explain the purpose of Clause 16(2)(b). A framework for establishing international joint investigation teams was provided for in Article 13 of MLAC. The purpose of those teams is to carry out joint investigations into crimes with cross-border elements, with a view to improving and speeding up investigation of those crimes. Teams will be set up by two or more member states for a specific purpose, and investigations may be carried out in any of those member states. In practice, a joint investigation team will consist mainly of police and customs officers from the participating member states, but their examining magistrates, prosecutors and specialist advisers may also take part.
All members of the team must act under the direction of the team leader, who must be provided by the competent authorities of the participating member state where the team is carrying out its investigation. If the investigation moves into another participating member state, the team leader would change.
The subsection enables constables acting as members of international joint investigation teams to apply for search warrants or production orders under the Police and Criminal Evidence Act 1984. As the noble Baroness said, this implements Article 13(7) of MLAC, which provides that members of a team should be able to request their own authorities to take such measures as they would be able to request in a domestic investigation.
A UK member of a team who is a police officer would be able under the subsection to apply for a search warrant or production order for evidence in the UK in relation to an overseas investigation, without a formal request for the evidence from abroad. Such a request would be unnecessary as the police officer would be applying for the search warrant or production order on the basis of his own knowledge of the investigation. That is a long but, I hope, not unhelpful, explanation of joint investigation teams.
Amendment No. 45 is unnecessary because the constable applying for a search warrant must be a member of the international joint investigation team and will therefore have personal knowledge of the joint investigation, just as he would if he were a member of a domestic investigation team. I hope that that explanation helps the noble Baroness.
Amendment No. 48 would impose a time limit for the transmission of seized evidence to the requesting authority. We believe that that would be unnecessarily restrictive. We are under no obligation to return evidence within a specified time. Current legislation does not set time limits. No doubt it is a matter of good practice that evidence is generally returned as soon as possible, but that does not automatically mean that there will be a specified time limit. There may sometimes be good reason not to return evidence immediately; for example, if the request involves a number of searches, it may be practical to wait for all the evidence to be collected and consolidated before sending some of it back.
I turn finally to Amendment No. 50. We do not see any point in having a requirement that copies of all evidence sent abroad should be kept. That is of no practical benefit to the United Kingdom authorities. It does not happen at present and the Government do not see any need to change that practice. It is possible that the police will keep a record, but certainly we can see no practical benefit in a requirement to retain a copy of every single document provided to an overseas authority. Therefore, I invite the noble Baroness not to press that amendment.
5 p.m.
Lord Renton: I want to say a word about Amendment No. 48 to which the noble and learned Lord referred briefly. The kind of proceedings that we must envisage are entirely new situations so far as concerns this country. The interesting point about the Bill is that it creates new situations which the Government and our legal authorities will sometimes have difficulty in enforcing. I believe that the expression,
- "within such times as the Secretary of State may by order prescribe",
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