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In another place similar amendments were tabled and the Government provided assurances about the training and monitoring of accredited financial investigators. However, there still remains the question of how appropriate it is to grant such significant powers to people who are not warranted police officers, officers of the Serious Organised Crime Agency or from Her Majesty's Revenue and Customs, and accredited financial investigators are simply defined by order of the Secretary of State. It would be very helpful if the Minister would confirm who is considered to be an accredited financial investigator and what plans, if any, the Government have to extend that definition. It is very important that we know the type of individual who is going to be doing this kind of job.
There is also the question of how these investigators are to work alongside law enforcement officers. In their 2006 consultation document, New Powers against Organised and Financial Crime, the Government said:
"Financial investigators are becoming more independent from police in their work and therefore to give them the full range of powers would be beneficial".
My question to the Minister is: how can support staff be independent from the investigations and the law enforcement officers that they should be assisting?
Finally, can the Minister confirm who is classed as,
I am unclear about that. I beg to move.
Lord West of Spithead: My Lords, these amendments address the new provisions being added to the Proceeds of Crime Act 2002 and seek to prevent accredited financial investigators having access to the powers conferred upon them.
I know that this is a probing amendment and it may help if I first provide some background. Accredited financial investigators are investigators who have been trained and accredited under Section 3 of the Proceeds of Crime Act by the National Policing Improvement Agency. They are not a new phenomenon. They were established under the 2002 Act and have been carrying out a very important role for more than six years. As new powers are introduced, so they are made available to accredited financial investigators where appropriate; that is all we are doing in the Bill.
Accredited financial investigators were a very important policy leap forward under the 2002 Act. Previously, public authorities which wanted to undertake financial investigations-for example, the Serious Fraud Office and the Department for Work and Pensions-had to rely on warranted constables and Customs officers to conduct their investigations. That is not always the most efficient way to operate. The introduction of accredited financial investigators has allowed these public authorities to conduct their own investigations, making better use of the time and expertise of their staff and freeing up fully warranted police and Customs officers for all the many duties that they have to carry out.
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Investigators operating specifically under the Proceeds of Crime Act within SOCA and the Serious Fraud Office are all accredited financial investigators. These amendments would restrict the ability of those front-line important law enforcement organisations to play an effective role in ensuring that criminals do not profit from their crimes.
It is important to note that the police have many financial investigators who are not warranted officers because that frees up warranted officers to do all the other things that the police need to do. Of the 1,011 accredited financial investigators, 53 per cent are non-warranted members of staff of the police. Anyone, whether warranted or not, must receive full training by the NPIA on the use of these powers before they are allowed to use them. Even if someone has been trained by the NPIA, an accredited financial investigator only has access to the powers in the Act if they are a member of staff of a body listed under an order made by the Secretary of State. That order lists approximately 20 public bodies. I could send the noble Baroness a list of those if that would help.
The continued use of these powers is monitored strictly in accordance with the statutory authority vested in the NPIA. This monitoring takes the form of monthly activities and work-based evidence submissions via the NPIA's financial investigation professional register. Any incorrect use will result in the withdrawal of accredited status. We believe that it is entirely right that as accredited financial investigators who are trained and closely monitored, as I have just explained, they should also have access to the new powers, as they do to the current ones. For their organisations to have to rely on constables and officers of HM Revenue and Customs would be a retrograde step in financial investigation and asset recovery.
That would introduce a differential and I repeat that these officers are not second-class investigators. The NPIA assures us that their professionalism in financial investigation at least matches if not betters that of the warranted police and HM Revenue and Customs officers involved. We are determined to stop criminals profiting from crimes and to reduce harm by maximising the effectiveness of asset recovery for the benefit of the community. It is important that these financial investigators have access to the full array of powers.
Amendments 152A, 152B, 152C and 152D seek to prevent accredited financial investigators who act as receivers from deducting their expenses from recovered sums. An accredited financial investigator, as indeed anyone appointed by the court, can already act as a receiver. The amendments would therefore simply deprive these investigators of the ability to claim their expenses from the amounts that they recover, in contrast to the ability of all the other public officials listed in the new Section 55(8) to do so now. I do not believe there is justification for that. The rationale behind this provision is to encourage the use of in-house receivers. This applies equally to accredited financial investigators as it does to others.
Amendment 152G seeks to remove,
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from the definition of appropriate officer for the purposes of new Section 41A of the Proceeds of Crime Act 2002. New Section 41A as a whole provides for the Crown Court to authorise the retention under the terms of a restraint order when that property has been seized by an appropriate officer. The reason that,
is included is that, although such a person is not involved in confiscation investigations, they perform civil recovery investigations under the 2002 Act. They may therefore have had property produced to them while conducting a civil recovery investigation but that has been superseded by a criminal and confiscation investigation.
If a restraint order has been made at the start of the later criminal confiscation investigation, property held as a result of the now defunct civil recovery investigation can continue to be retained so that it can be used ultimately to satisfy any confiscation order that is made. In the light of this explanation, I hope that the amendment will be withdrawn.
Baroness Neville-Jones: I thank the Minister for that full reply. My interest centres on the nature of the individuals to whom these quite extensive powers are being given and their relationship with warranted officers. My two points were: who are these people and, in the light of the language about independence, what is their relationship with the police?
In talking about the training that these people get, could the Minister say what kind of people are employed to do this? Can he give the House some idea of the sort of individuals who are being given this considerable responsibility? What qualifications do they have in their background beyond the training that they receive?
Lord West of Spithead: The best that I can do is to say that these are people such as prosecutors, officers or members of staff of SOCA who have been designated by the DG of SOCA. I do not know off the top of my head what exact qualifications or what level of passes in certain things they have to have before they can be designated. I will get back to the noble Baroness in writing on that.
Baroness Neville-Jones: I thank the Minister. It would certainly be helpful to have in writing some clarification on that point. I will trust what he will tell me, and I beg leave to withdraw the amendment.
Amendments 152B to 152D not moved.
152E: After Clause 49, insert the following new Clause-
"Confiscation orders by magistrates' courts
The Secretary of State shall, within 12 months of this Act being passed, lay an order before Parliament to bring section 97 of the Serious Organised Crime and Police Act 2005 (c. 15) (confiscation orders by magistrates' courts) into effect."
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Lord Bradshaw: My Lords, first, I have connections with a number of police forces. They are not professional connections, and I am not advocating anything on their behalf.
In preparation for discussion of the then Serious Organised Crime and Police Bill, I took advice from a number of people, including an accredited financial investigator who is working for a police force and is head of that department and who appears to be a well qualified financier. I also took advice from an assistant chief constable. I asked them how the new legislation was working. They said, "Reasonably well, but it could be improved". I asked them how it could be improved, and they said that the real problem was that a lot of small criminals who are stealing things and the like come before the magistrates' court and either plead guilty or are found guilty, but the magistrates are not in a position to make a confiscation order if one is asked for either by the police, who may not be there, or by a representative of the Crown Prosecution Service, who may be there. They went on to say that in order to get a confiscation order it is necessary to proceed to a higher court. They then said that the judges and other people who make the lists in the higher court do not like dealing with confiscation orders for what they regard as trivial amounts of less than £10,000.
I raised this matter with the Minister and the noble Lord, Lord Brett, when we had an opportunity for pre-legislative scrutiny, and I must say that there was a lot of shaking of heads on the other side of the table and what I would regard as squirming about by officials. I got no answer, and I was somewhat surprised the next day to find a message saying that the amendment is unnecessary because the powers already exist. I said, "Could you please show me, because I am assured by the police that they do not have the powers?". They said that the problem was that they were in a schedule. When I asked where the schedule was, they said, "It has not been published". When I asked why it had not been published they said, "Because of the need for training". Honestly, you do not need much training if you are an advocate in a magistrates' court to be able to make a simple order for confiscation.
This is a serious matter because, first, it calls into question whether the Home Office is doing its job properly in publishing schedules in a timely manner. Secondly, what is the purpose of pre-legislative scrutiny if we do not get answers? If I am wrong, please tell me, because I will point out to the police officers where these powers are and where they have been hidden. In the mean time, I hope that the Minister has some authoritative answer for me. I beg to move.
4.30 pm
Lord West of Spithead: I recognise that the power to lay an order under Section 97 of the Serious Organised Crime and Police Act 2005 has been in force for four years, but that no order has been laid. There is a little mea culpa here. The noble Lord, Lord Bradshaw, is absolutely right: this has been difficult for a number of reasons. The order would make provision to allow magistrates' courts to make confiscation orders under the Proceeds of Crime Act 2002. Currently, only the Crown Court has the power to make confiscation
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I realise that having order-making powers that remain unused appears to have wasted this House's time. That is not very clever, but there are reasons. The House scrutinised them in debate. However, that is not the case in relation to Section 97. It is government policy that asset recovery should be an integral part of criminal justice and we are constantly considering options to achieve this.
Work has started on drafting an order under Section 97. Separately and importantly, we developed the Asset Recovery Action Plan-a consultation document launched in May 2007, which set out a range of new powers and proposals to ensure that criminals would not profit from crime. Many of these proposals are now included in this Bill.
Also contained in that plan was a proposal to create a new, so-called, criminal benefits order, partly because of the problem we were having in getting the order used in magistrates' courts. We envisaged it as being limited to the benefit from the criminality for which the defendant had been convicted, and it would therefore not require a full financial investigation. It was contemplated that such an order may be made by a magistrate up to a value of £10,000-which made it similar to the last order we were discussing. However, the viability of this possible alternative option to the Section 97 order has not been settled.
In the mean time, I can confirm that the option of an order under Section 97 is being progressed-we are now able to move this forward-and that necessary action is being taken. We will aim to ensure, if possible, that the deadline for laying any order is within the spirit of this amendment. Unfortunately, however, I am not in a position at this stage to make that firm commitment although that is what we are moving towards. I cannot make that commitment within these timescales, but with the undertaking that we are moving towards that, I hope that the noble Lord feels that he can withdraw his amendment.
Lord Bradshaw: I thank the Minister for his reply and for his honesty and frankness in giving it. I will study very carefully what he said and will consult again with the people who advised me. In the mean time, I beg leave to withdraw the amendment.
Clause 50 : Power to retain seized property: England and Wales
Amendments 152F and 152G not moved.
Amendments 152H to 152HB had been withdrawn from the Marshalled List.
Clause 52 : Power to retain seized property: Northern Ireland
Amendments 152J and 152K not moved.
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Clause 53 : Search and seizure of property: England and Wales
Baroness Neville-Jones: My Lords, the amendment concerns the use of search and seizure powers in circumstances where potentially no one has been charged with any offence. It would ensure that the power was used only in circumstances where it was appropriate to do so. In the other place, the then Minister of State for Security, Counter-Terrorism, Crime and Policing, accepted that,
- "the powers are potentially invasive and intrusive and that the police and others must exercise restraint and caution when using them".-[Official Report, Commons, Policing and Crime Committee, 12/2/09; col. 453.]
However, at the same time, he expressed a doubt about needing to include a requirement in statute for law enforcement agencies to act in a way compatible with the European Convention on Human Rights on the grounds that they are automatically required to do so and that including such a provision would risk casting doubt on other pieces of legislation where such a requirement was not expressly included.
At the same time, the Minister undertook to review the proportionality test and that is the subject of my question. What is the Government's position on this proportionality issue? I beg to move.
Lord West of Spithead: My Lords, this amendment provides that an officer's power to seize property under the new Proceeds of Crime Act must be exercised proportionately. I absolutely understand the reasoning behind the amendment and fully support the spirit of it. However, I suggest that it is unnecessary. With regard to the powers of the appropriate officer, police officers, for example, have a duty to act with appropriate discretion. The police are a public authority for the purposes of the Human Rights Act and so must act compatibly with individuals' human rights. Their powers must be used proportionately; they can be judged on that basis; they are trained to act on that basis.
In addition, the powers of seizure must be exercised with prior judicial or senior officer authority unless that is not reasonably practicable. That is another level of oversight to ensure proportionality. We are also introducing a detailed code of practice and other safeguards to ensure that the powers are exercised proportionately in compliance with the ECHR. That code of practice will give guidance on proportionality in relation to the exercise of the powers.
In conclusion, with those caveats-I think that this was a probing amendment-the amendment is important, but I have covered the points raised. I hope that I have been able to demonstrate that we are already covering those real issues of proportionality. On that basis, I hope that the amendment will be withdrawn.
Baroness Neville-Jones: Will that guidance be published?
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Lord West of Spithead: As I understand it, it will be published, and I will let the noble Baroness have a copy of it.
Baroness Neville-Jones: On that basis, I beg leave to withdraw the amendment.
Amendment 152P had been withdrawn from the Marshalled List.
Baroness Neville-Jones: My Lords, I shall speak also to Amendments 152R and 152S. These are probing amendments which address what seems to us to be a pre-emptive power currently in the Bill. The conditions for the exercise of powers to seize property under Section 47C are various, and include the fact that an application by the prosecutor has been made and not concluded. However, they also allow an appropriate officer to exercise the powers if he "believes" that such an application should be made. That is my difficulty. Can the Minister tell us why that is-why he has to have a ground only of "belief"? What would constitute such a belief when such an application was made? What if the officer is wrong and an application is not actually made? We on these Benches consider that those powers must be exercised only when an application by a prosecutor has been made. I beg to move.
Lord West of Spithead: My Lords, as the noble Baroness said, the amendments would remove the proviso,
from the conditions for exercising the new Act.
Under the provisions of the Proceeds of Crime Act, if fresh information comes to light, it is possible to return to the making or varying of a confiscation order. That is entirely right. For instance, if a drug trafficker had successfully hidden assets at the time a confiscation order is made, if the assets are subsequently discovered, they should, in the appropriate circumstances, be available for confiscation. The provisions also cover absconded criminals, as they, too, should not escape the reach of confiscation. In cases which are returned to, and likewise with absconders, there is the potential for the assets to be dissipated. Indeed, this is historically what has happened, which is why the police have been so much behind the various measures. As assets may have already been hidden for many years, the risk is real.
Accordingly, under the existing restraint order provisions in POCA, property can be frozen by court order. If an application is made for reconsideration, this could put a defendant on notice that his assets are in danger of confiscation proceedings, and so he could hide them again. This would defeat the purpose of reopening a case. Accordingly, the restraint provisions
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