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Lord Bassam of Brighton: The noble Baroness is right in her understanding and interpretation of what we are trying to achieve in the clause. As the noble Baroness has explained, under the common law of Scotland,
- "forgery itself is not a crime and only becomes so when a false instrument is uttered as genuine".
Section 5 of the Forgery and Counterfeiting Act 1981 does not apply to Scotland. That is what we are trying to put right in Clause 89, in the sense that it ensures that there is commonality. There has been substantial consultation and the Scottish Executive are entirely happy with what we are trying to achieve. We are at one in our intentions.
I believe that I can answer the question by picking up especially on the last point made by the noble Baroness. It would be an offence for a person to have,
- "in his custody or under his control . . . anything which is, and which he knows . . . to be, a counterfeited or falsified . . . monetary instrument".
I turn to the detail of the amendment. If we were to remove the phrase, "or believes to be", it would introduce a hurdle for the prosecution that would be difficult to discharge other than in relation to a person who could be shown to have made the forgery or to have been present when it was made. We could not accept the amendment for that reason. It would limit the scope of the offence, which we do not want to do. As I said, we are at one in our intentions on this offence, which is why we have inserted the clause.
Baroness Carnegy of Lour: The anxiety that has been expressed relates to the question of how the situation that I described can be an offence. If I have a £10 note in Scotland and believe it to be forged, I may be
interested to have it in my possession and have no intention of doing anything with it. It turns out that it was not forged at all, so I have not been in possession of a forged document but simply believed that I was. I had no intention of doing anything with it, so how can that be an offence? That is the question that was put to me, which I do not believe the Minister to have answered.
Lord Monson: Would that situation not be covered by the phrase, "without lawful excuse"? One would have an excuse in the circumstances described by the noble Baroness, because the person was not planning to do anything with the note.
Lord Bassam of Brighton: The key to the question is whether the document is "uttered as genuine"—not only whether it is believed to be counterfeited but whether it is put to some use as genuine when it is not. I suspect that the noble Baroness would have a perfect defence, but I am not a lawyer and I am prepared to be wrong when providing an explanation.
Baroness Carnegy of Lour: I am not a lawyer either. We are discussing subsection (2)(a), not subsection (1). The person has a document,
- "which he knows or believes to be . . . counterfeited or falsified".
Lord Bassam of Brighton: It probably goes back to the point about not having, "lawful authority or excuse". That is the important aspect for the noble Baroness to focus on. My guess is that, in the circumstance that she described, no offence would have been committed. Having the belief and putting to use the note would create the offence. We are happy to examine whether we have got the wording right, but I believe that that is the explanation.
Baroness Carnegy of Lour: I will consider what the Minister said and talk with the Law Society of Scotland. It is an interesting point. If the clause describes something that could not be an offence, it should be reworded. I understand what the Government are trying to do. I shall consider what the Minister has said and, if necessary, bring the matter back on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin moved Amendment No. 156A:
- After Clause 89, insert the following new clause—
The noble Lord said: This amendment will introduce the mutual recognition of orders freezing terrorist property. The Bill already implements the
Freezing of assets is a difficult area, even more so when it comes to international mutual recognition of freezing orders. But it would be a useful addition to the anti-terrorism tool kit, which is why we have tabled these amendments. I wrote to the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, setting out why we thought that it was important for the Bill to introduce the aspects of the framework decision relating to the freezing of terrorist property, as it forms a key part of the post-11th September EU anti-terrorism roadmap.
The Terrorism Act 2000 already provides for the freezing of terrorist assets in a way that is compatible with the framework decision. Schedule 4 to the 2000 Act provides for restraint orders, which carry out the same function as freezing orders, to secure property, with a view to its later confiscation. These orders specifically apply to property that is supplied for, or is intended to be used for, terrorism, that represents the proceeds of terrorism or that has been used to pay someone for committing a terrorist act. This amendment provides for domestic orders under the Terrorism Act, freezing terrorist property in another member state to be sent to that other member state for enforcement, and for overseas freezing orders made by another member state but relating to terrorist property here to be enforced in relation to that property by our courts.
The amendment makes separate provision for sending orders to another EU state, and for registering and enforcing incoming orders sent from the rest of the EU.
So far as outgoing orders are concerned, new paragraphs 11B and 11C, which will be inserted into Schedule 4 to the 2000 Act, allow a court, when making a restraint order under that schedule, to sign the certificate required by the framework decision, allowing the order to be transmitted overseas for enforcement. These paragraphs do not extend the powers of the court to make such orders—those powers will remain as set out in the Terrorism Act.
The Court will be able to sign the certificate if any of the terrorist property to which the order relates is situated elsewhere in the EU, and there is a good arguable case that that property is either likely to be used for the purposes of a listed offence, or the proceeds of the commission of such an offence. Once the certificate has been signed, it, together with the order to which it relates, would be sent to the Secretary of State for forwarding to the state where the property in question is believed to be located. The requested state would be required to execute the order on the basis of mutual recognition, under the terms set out in the framework decision.
The Terrorism Act 2000 allows the enforcement of incoming orders to restrain terrorist assets to be dealt with by Order in Council. However, we propose to deal with the main provisions for incoming orders in
The proposed procedure for executing incoming requests will work similarly to the procedure already set out in Clauses 20 to 25 of the Bill for the execution of evidence-freezing orders, though there are some differences that reflect the distinction between the freezing of assets and that of evidence.
We intend incoming freezing orders to be dealt with in the High Court. I shall introduce an amendment on Report to make that clear. The High Court will exercise limited discretion over the execution of incoming freezing orders, although, as paragraph 11G(4) provides, it will be able to refuse to give effect to an overseas order where to do so would be incompatible with ECHR rights.
The amendments are necessary and justified in order to take effective action against those who plan, perpetrate or support, whether financially or otherwise, terrorist acts. I stated earlier that the provisions are restricted to terrorist assets. Asset freezing has proved to be an effective weapon in destabilising terrorist organisations and preventing groups from profiting from terrorist activity. The introduction of the measures will provide us with another tool to use against terrorists, so I commend the amendments to the Committee. I beg to move.
Lord Renton: The Minister is fully justified in asking us to accept the new schedule. I do not suggest any major change, but if we read paragraph 11A(3)(a), we find that a listed offence in the schedule means,
I wondered what was a prescribed offence in that context. Sub-paragraph (6) states:
I mention the matter not merely to help to clear my own mind, if I may dare say so, but to help us all to understand those rather unusual provisions. We must accept the schedule, but I wonder whether between now and Report the drafting could be improved if we amalgamated sub-paragraphs (3), (4) and (6). The provision could then be more easily understood and come to the mind more directly.
"FREEZING OF TERRORIST PROPERTY
Schedule (Terrorist property: freezing orders) is to have effect."
5 p.m.
"an offence described in a prescribed provision of the relevant Framework Decision".
The word "prescribed" is not one to which we are accustomed in such a context in English law, but I do not complain about that. But sub-paragraph (b) states that,
"a prescribed offence or an offence of a prescribed description",
is also a listed offence.
"In this paragraph, 'prescribed' means prescribed by an order made by the Secretary of State".
Incidentally, that gives the Secretary of State considerable power, but perhaps that is a power that we could not prevent him having.
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