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Lord Renton: I hope that the noble and learned Lord the Attorney-General will consider the amendment sympathetically. Various types of freezing order are mentioned in the Bill, but, so far, only one has been defined.

Clause 10 refers to domestic freezing orders, and Clause 11 deals with the sending of freezing orders. Clause 12 refers to the,

Overseas freezing orders are dealt with at some length in Clause 20, and subsection 2 contains a definition of an overseas freezing order. But we are left wondering what are the other types of freezing order. The amendment is an attempt to provide an overall definition of any kind of freezing order, and it is a good attempt at drafting.

I do not think that the amendment goes quite far enough. It refers to,

    "the destruction, transformation, moving, transfer or disposal of property".

"Property" is not defined. Although it could be argued that a definition is unnecessary, it could mean the disposal of information of various kinds, especially with modern equipment, and information is not regarded as property. Therefore, the word "information" could well be added and would make the amendment more complete. For the reasons given by the noble Lord, to which I have tried to add, we need a definition in the Bill.

6.15 p.m.

Lord Goldsmith: It might be helpful if I start by indicating an answer to the question asked by the noble Lord, Lord Goodhart. He rightly drew attention to the fact that the framework decision deals with two kinds of freezing. It deals with arrangements for freezing assets—that is property—and for freezing material wanted as evidence. Those are two distinct concepts.

We believe that the freezing of evidence will facilitate international investigation. Therefore, we have taken the earliest opportunity to implement those new arrangements. That is the only part with which the Bill seeks to deal in the freezing context. Freezing of assets is a more complicated topic. It needs to take account of other developments. We already have new domestic, as well as international arrangements, in this

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area—the noble Lord drew attention to some of those—which were introduced by the Proceeds of Crime Act. The Government are keen to ensure that those are properly established before embarking on further steps at the international level.

In addition, the JHA Council is currently discussing a framework decision on the mutual recognition of confiscation orders. Asset freezing is a concept closely related to confiscation orders. To some extent it is an interdependent preliminary step to confiscation. We need to ensure that there is coherence and consistency of approach in the legislation adopted to implement both those instruments. That could not be resolved until the content of the confiscation instrument is settled. That is why the Bill does not attempt to deal with the freezing of property.

That being the case, it follows that the proposed amendment, which is lifted from the definition in Clause 2(c) of the framework decision, is necessarily too wide. The definition relates to property and evidence. There is another reason why it is too wide. The definition in Article 2(c) uses the concept "issuing state". An issuing state is defined in Article 2(a) of the framework decision with the important qualification of:

    "in the framework of criminal proceedings".

If one did not somehow include those words, this would be an extremely wide definition which would catch civil injunctions also. That is not what the Bill is designed to deal with.

For those reasons, this particular definition would be inappropriate. We take the view that the definitions of "domestic freezing order" in Clause 10(2) and "overseas freezing order" in Clause 20(2) are more than adequate. They are perfectly sufficient to identify what those two concepts deal with. I have listened attentively to the noble Lords, Lord Goodhart and Lord Renton. However, at present it is not obvious to me that there is any gap. Given what the Bill is trying to achieve and given that both domestic freezing orders and overseas freezing orders are defined, enough is dealt with. For that reason, the Government cannot accept the amendment and do not believe that any additional definition is required.

Lord Renton: Before the noble and learned Lord sits down, it is highly curious that various different kinds of freezing orders are mentioned in the Bill, but only one is defined. If the general reasons he has put forward are enough, one wonders why the overseas freezing order should require a definition. Expressio unius est exclusio alterius, if the Committee would forgive my saying that.

Lord Goldsmith: I can always forgive the noble Lord for speaking Latin, particularly in a legal context, although these days others take a different view.

I hope that it is helpful to say that at present I do not see where the gap is. We have two concepts in the Bill. First, the domestic freezing order, an order made in this country sent overseas, is defined in Section 10(2). That definition is picked up again in Clause 28(1). For

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example, although Clause 11 is headed "Sending freezing orders", the substantive provisions refer to a domestic freezing order which has been defined.

There is then the other sort of freezing order, the overseas freezing order. That is defined in Clause 20(2) and again picked up in Clause 28. There are provisions for dealing with overseas freezing orders. The noble Lord may want to consider further if there is a gap which I have missed, which I should be happy to deal with in correspondence. However, I hope that I have sufficiently answered his point.

Lord Goodhart: I am grateful to the noble Lord, Lord Renton, for his support. As regards the definition point, it is fair to say that this is a probing amendment, and I find acceptable the explanation given by the noble and learned Lord. As regards the making of a freezing order for the purposes of confiscation, I am happy that the noble and learned Lord was able to deal with that point today. I note with interest that we can expect further legislation to apply the concept of freezing orders to the process of confiscation in due course. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendment Nos. 74 to 76:

    Page 16, line 12, after "prescribed" insert "or of a description prescribed"

    Page 16, line 13, after "offence" insert "or a description of offences"

    Page 16, line 15, after "offence" insert "or offences"

On Question, amendments agreed to.

Clause 28, as amended, agreed to.

Clause 29: [Hearing witnesses abroad through television links]:

Baroness Anelay of St Johns moved Amendment No. 77:

    Page 16, line 35, at end insert—

"(1A) An order under subsection (1) shall be made by statutory instrument and may not be made unless a draft of the statutory instrument containing the order has been laid before and approved by a resolution of each House of Parliament."

The noble Baroness said: We now turn to the issues of hearing witnesses abroad through television links. Amendment No. 77, by way of general introduction, gives background to these matters. Currently, television links are covered by provisions in primary legislation. However, the amendment would allow the Secretary of State and Scottish Ministers power to extend it to other types of criminal proceedings by order.

Paragraph 85 of the Explanatory Notes does not give enough clarity. It states:

    "the clause makes provision . . . for the Secretary of State to extend this provision to other types of criminal proceedings in the future".

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It would be helpful to know what other types of proceedings may be covered and what kind of departure from current practice might happen in future. I beg to move.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): Clause 29 partially implements Article 10 of the Convention on Mutual Assistance in Criminal Matters (the MLAC) which provides for hearing witnesses via video link where it is either not possible nor desirable for the witness to travel to the state where his evidence is required. The clause deals with the circumstances where the UK requests evidence in that way.

Clause 29 permits the Secretary of State to expand by a negative resolution order the types of proceedings in which the UK may request that kind of evidence from overseas. The amendment would require such an order to be made by affirmative rather than negative resolution. The Government do not believe that that would be necessary as UK courts are already able to request that type of assistance from overseas in certain proceedings by virtue of Section 32 of the Criminal Justice Act 1988 and Section 273 of the Criminal Procedure (Scotland) Act 1995.

The types of proceedings covered presently include homicide, serious fraud cases and cases involving the evidence of children. The clause provides for those sections to apply to further types of proceedings. Clearly, there are many other potential criminal offences to which those types of proceedings could be applied. All I would say at this point is that there are no present plans by the Lord Chancellor's Department to do so.

I go further. Any decision to extend the types of cases in which that sort of assistance is provided would follow only after extensive consultation with all parties concerned and would reflect a consensus view across the criminal justice system. We believe, therefore, that Clause 29 provides a practical solution ensuring that Section 32 of the Criminal Justice Act and the corresponding Scottish provisions may be extended in future, but with the safeguard that that would be done only after the proper forms of consultation, which, I put on the record, were carried out.

The clause has general application and is not restricted to participating countries. That reflects the existing position under the Criminal Justice Act. We consider that those arrangements have particular benefit in relation to countries outside Europe, which may pose greater travel obstacles for witnesses. That sort of assistance is a useful tool in trials which deal with offences which take place in more than one state, and which are often those involving organised criminal gangs.

In the report of the Select Committee on Delegated Powers and Regulatory Reform on the Bill, no comment was made on the power. We understand, therefore, that it is satisfied that the level of scrutiny of

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the power is appropriate. I hope that what I have been able to say by way of explanation satisfies the concerns raised by the noble Baroness.

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