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The same considerations read across to the new provisions to search for and seize property. If an officer believes that an application for reconsideration is to be made, then the powers should be available to him to prevent the possible dissipation of illegally obtained assets, which is what happened in the past. In the light of this explanation, I hope that the amendment will be withdrawn.

Baroness Neville-Jones: Will the Minister explain why, if the officer believes that an application is to be made, he cannot find out? I am unhappy about him acting on the basis of a belief rather than on a fact that he ought to be able to establish.

Lord West of Spithead: My Lords, he needs to take action at that time, rather than going back and discovering what is going on, because there is the problem that the property will be dissipated.

Lord Lyell of Markyate: If the officer suspects that the assets may be dissipated but has no idea whether a prosecutor is going to make an application, is he entitled under this section to seize the assets?

Lord West of Spithead: I shall take note of that and get more detailed advice. I could talk through what I think is the case, but I would like to be absolutely sure of the situation.

Baroness Neville-Jones: My Lords, it would be helpful to have clarification on this point because, on the face of it, the circumstances that my noble and learned friend alluded to could arise. For the time being, I beg leave to withdraw the amendment.

Amendment 152Q withdrawn.

Amendments 152R and 152S not moved.

Amendment 152SA had been withdrawn from the Marshalled List.

Amendment 152SB

Moved by Baroness Neville-Jones

152SB: Clause 53, page 39, line 36, at end insert "provided the defendant's employment, business or vocation is not a criminal activity or related to criminal activity"

Baroness Neville-Jones: My Lords, this is another probing amendment. The powers to seize property under Section 47C are limited and exclude cash or exempt property. Exempt property is defined as,



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Exempt property also includes items such as clothing, bedding, and other items to satisfy basic domestic needs. If the individual's employment, business or vocation is a criminal activity, and that criminal activity is dependent on that equipment, is it exempt? I beg to move.

Lord West of Spithead: Under the Proceeds of Crime Act, there are currently no provisions allowing the seizure of property of a suspect to prevent its dissipation or devaluation in advance of the confiscation order. Clause 53 creates such powers. This was debated extensively in the other place and is now in a much improved state with further safeguards. I am not going to pretend these powers are minor or technical, and they need to be used in a proportionate, effective and focused manner. Section 47C introduces the term "exempt property". Under this section, property exempt from seizure includes property necessary for the defendant's personal use in his employment, business or a vocation. Amendment 152SB adds a further clarification that exempt property does not include property needed for employment, business or a vocation that is a criminal activity or related to criminal activity. While I fully agree with the spirit of the amendment, I suggest that it is unnecessary. The definition of "exempt property" is not new, and the one used in the Bill is an exact copy of the one used in insolvency and bailiff legislation: for example, in Section 283(2) of the Insolvency Act 1986. The same issues arise in that legislation as in the Proceeds of Crime Act: namely, that the seizure of property is necessary, but not to the extent that it prevents the individual making a living. It is implicit that the references to employment, business and vocation relate only to what is lawful. To introduce further criteria here would cast doubt elsewhere in the statute book.

We also expect seizing officers and the courts to take the common-sense view that only lawful businesses should continue to operate. Indeed, this could be included in the code of practice, which sets out how these powers are to be exercised. Also, if the defendant has a complaint, he can seek redress through applying for a variation of the detention, whether this is authorised by a restraint order or a new magistrates' detention order.

I hope that I have explained the issue in more detail and, in the light of that, I ask the noble Baroness to withdraw her amendment.

4.45 pm

Baroness Neville-Jones: No doubt the guidance which the Minister has mentioned will also be published, and, on that basis, I beg leave to withdraw the amendment.

Amendment 152SB withdrawn.

Amendment 152T

Moved by Baroness Neville-Jones

152T: Clause 53, page 40, line 2, leave out from "47G" to ", and" in line 3

Baroness Neville-Jones: My Lords, in moving Amendment 152T, I will also speak to Amendments 152U and 152X. Again, these are probing amendments, and they relate to seizure. The exercise of property

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seizure powers under Section 47C is allowed only where there is "appropriate approval", which is defined in Section 47G as,

I will come back to the level of judicial approval that should be required in our debates on later amendments. My concern here is that the Government's legislation will permit these powers to be exercised when,

What circumstances are the Government referring to, or envisaging, in which approval would not be sought from a judicial figure?

I am also not clear whether, if judicial approval is not sought, the appropriate officer is none the less always required to seek the approval of someone who is called, and defined as, a "senior officer". Will the Minister confirm that? If there are also circumstances in which it would not be practicable to obtain approval even from a senior officer-I have to say that I find that hard to believe-will the Minister give your Lordships' House examples of the sorts of circumstances in which that could arise?

Although amendments have not been tabled to Sections 195C to F, which can be found on page 60 of the Bill and which include such powers to search a property, the same considerations certainly apply here. I beg to move.

Lord West of Spithead: My Lords, these amendments would require an officer to obtain appropriate approval in all circumstances before they could use the new powers to search for and seize property.

These powers are modelled on the existing search powers under the recovery of cash in summary proceedings provisions in Chapter 3 of Part 5 of the Proceeds of Crime Act. These have been in successful operation since the end of 2002. Under those provisions, as well as under the provisions in this Bill, an officer should obtain the approval of a justice of the peace before conducting a search. If that is not practicable, he must obtain the approval of a senior officer-that is, an inspector or above. If that is not practicable, he can use the powers without such prior approval.

A situation might arise in which an officer needs to act immediately to be able to search for and seize property. He might, for example, be searching premises for some other purpose and need to exercise these powers. In these circumstances it may be possible to get senior officer approval, say, by phone, but he cannot practically go off to court. The moment would have passed and the property may have gone. However, there is an expectation that appropriate approval should be obtained in cases.

In addition, significant safeguards are attached to the operation of the search and seizure powers. If property is seized, court authority is required for its continued detention beyond 48 hours. If property is not seized following the exercise of the new search powers, or if seized property is not detained for more than 48 hours and judicial approval was not obtained, the officer will be required to report to the appointed

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person why he believes that the powers were exercisable and why it was not practical to obtain judicial approval. The appointed person is an independent ombudsman appointed under the Act to oversee the operation of the powers in the circumstances that I have outlined. There will therefore be independent oversight of the operation of these powers in all cases.

A code of practice will provide guidance on the exercising of these powers. This is yet to be drafted, but it will be subject to a public consultation and will be debated in this House and the other place before it or these powers come into force. The draft skeleton of the code is set out in Annexe B of the Government's reply to the 10th and 15th reports from the Joint Committee on Human Rights. I hope that that explanation answers the probing points and, in the light of that, I hope that the amendment will be withdrawn.

Baroness Neville-Jones: Perhaps I may press the Minister a little further on seeking approval from the senior officer. Did the Minister say that, irrespective of whether he was able to obtain the approval of a judicial officer-a justice of the peace-an officer who was going to conduct such a search and investigation would be required and expected to get the agreement of a senior officer?

Lord West of Spithead: He will be expected, either by phone or something like that, to get an approval from an inspector. However, if he absolutely cannot get it, he can exercise his discretion, but he has a code of practice that will guide how he should behave in those circumstances.

Baroness Neville-Jones: It is hard to believe that in a telephonic age it is not possible to ring up and get agreement from a senior officer. It is very important that these powers do not appear to be exercised erroneously or arbitrarily. I appreciate the fact that there will be a code of practice, but some safeguards in law would be extremely helpful. I shall read this debate again in Hansard and I should like to consider what view to take. In the mean time, I beg leave to withdraw the amendment.

Amendment 152T withdrawn.

Amendment 152U not moved.

Amendments 152V and 152W had been withdrawn from the Marshalled List.

Amendment 152X not moved.

Amendment 152Y

Moved by Baroness Neville-Jones

152Y: Clause 53, page 41, line 34, leave out from first "of" to end of line 35 and insert "the Crown Court"

Baroness Neville-Jones: The Minister may have got on to the issue that I wish to raise now in his previous answer. The amendments in this group would require judicial authorisation for the use of powers in this part of the Bill to be provided by a Crown Court rather than a JP or a magistrates' court. Similar amendments were considered in the other place. These powers are

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sufficiently serious and the legal issues sufficiently complex that in our view the level of judicial oversight should be higher.

In response to similar amendments in the other place, the then Minister of State for Security, Counter-Terrorism, Crime and Policing emphasised the procedural safeguards that would be set out in the codes of practice, but at that time those codes were not available. Can the Minister now confirm the position, because it is very hard to assess the validity of these assurances without seeing them?

If, when we have seen the draft codes of practice, we accept that they provide for sufficient procedural safeguards, will the Minister confirm how the JPs will become familiar with these complex provisions? It has been suggested that a single justice of the peace would, and could, be properly equipped to hear detention order applications. Are the Government still considering that option? I beg to move.

Lord West of Spithead: These amendments relate to the new powers of seizure and detention that we are seeking to introduce into the Proceeds of Crime Act 2002. The powers will prevent the dissipation of or reduction in the value of property that may then be used in settling a future confiscation order. These are important additions, as they will add to the effective enforcement of confiscation orders once they are made. This is an important point: orders must be not only made but enforced. I do not pretend that they are minor powers, as the noble Baroness said, and in recognition of this, your Lordships will note that many safeguards are attached to them to ensure their proportionate and focused use.

One of the safeguards is that of various stages of judicial oversight. These amendments address that issue. They are concerned with the appropriate courts for authorising use of the search and seizure powers, making an order for further detention of the seized property and dealing with appeals. The new provisions in the Bill are modelled on the cash search, seizure, detention and forfeiture provisions in POCA. We are not therefore breaking new ground here by giving the magistrates' court jurisdiction to provide authorisation for the use of search powers or to conduct detention order hearings.

Similar issues that occur in the cash proceedings are likely to be raised under these new powers. It is also relevant that the magistrates' court is the enforcement authority for the purposes of confiscation orders under Section 35 of POCA. Issues relating to property and other matters that arise from confiscation orders have been before the magistrates' court since the enforcement powers under Section 35 were commenced in 2003. We believe that magistrates' courts are properly equipped to deal with the search and seizure powers and detention order cases.

Under Section 290 of POCA, a JP provides prior approval for the use of the powers to search for cash. In circumstances where it is not practicable to obtain this, a senior officer can provide the prior approval. We base the appropriate approval provision in these new powers on that established and successful precedent. It is also of note that, if no judicial approval was

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obtained for the use of the powers and if no property is seized or any seized property is not detained for more than 48 hours, an officer must send a report to the independent person I talked about in my previous response. The report to the appointed person must detail why the officer believed that the powers were exercisable and why it was not practicable to obtain the approval of a JP. In cases where property is retained for more than 48 hours, it will be subject to judicial oversight by way of an application to a court for its continued detention.

Due to the immediacy of some situations where an officer wants to use the powers to search for and seize property, it may be that a senior officer is available at the scene or is easily contactable. It would be fatal to the use of the powers if during an actual operation an officer had to obtain JP approval for their use. The immediacy of the moment would be lost and the property possibly dissipated. The alternative of a senior officer providing approval still provides for oversight. It is important to note that, if senior officer prior approval has been obtained but property is not seized or not detained for more than 48 hours, a report has to be made, as I have outlined.

As regards detention hearings in those cases where property is subject to a restraint order, the further detention of that property after its initial seizure has to be authorised by the Crown Court. Cases that involve property of higher value or are complex are more likely to be subject to a restraint order. The use of restraint orders is increasing; their number has risen from 1,356 in 2007-08 to an estimated 1,664 in 2008-09. It is unlikely that a Crown Court restraint order would be sought in lower-value and simpler cases where smaller items of personal property may have been seized. In those cases, the application to further detain the property is made to the magistrates' court. We do not consider that it would be an appropriate use of the Crown Court's time to deal with such lower-order cases given the other business pressures that it continually faces. There is, however, an express right of appeal to the Crown Court against a decision of the magistrates' court not to grant an application to vary or discharge a detention order.

I remain convinced that the Government's proposals in this respect are reasonable and proportionate and ask that the amendment be withdrawn.

Lord Lyell of Markyate: When the officer decides to seize something and says, "I am taking this", what does he do? Does he write down on a document that he has taken something and give that document to the person from whom he has taken it? How does it work in practice? One is a little worried because, while I well understand that this could be a useful power, it could also be an oppressive power. Whatever the hurry, a practical way of indicating the formality of the proceedings is probably necessary. Could the Minister say a word about that?

5 pm

Lord West of Spithead: My Lords, the noble and learned Lord asks a good question. I do not know the precise detail or exactly what form is filled out. According to the code of practice, we have to provide the defendant

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with a listed description of the seized property, set out the conditions for retention and provide forms for applying for a retention order. Other matters, such as letting the person know where the property is stored, have to be taken into account when filling out the form. There is a whole raft of requirements laid out in the procedure. I am afraid that I do not know them off the top of my head, but they are all laid out there.

Lord Lyell of Markyate: I am grateful.

Baroness Neville-Jones: My Lords, I mentioned in my first intervention that at the time of the discussion in the other place the draft of the code was not available, but the Minister now has it in front of him. Is this now available to be seen by the House? It would be very helpful to see it before I take a final view on the amendment.

Lord West of Spithead: My Lords, it is available. I shall ensure that the noble Baroness receives a copy.

Baroness Neville-Jones: My Lords, for the time being, I beg leave to withdraw the amendment.

Amendment 152Y withdrawn.

Amendments 152Z to 152AC not moved.

Amendment 152ACA had been withdrawn from the Marshalled List.

Amendment 152ACB

Moved by Baroness Neville-Jones

152ACB: Clause 53, page 42, line 22, at end insert-

"( ) The Secretary of State must produce guidance on the qualifications required by a person appointed under subsection (4)."

Baroness Neville-Jones: My Lords, this is a probing amendment. When an appropriate officer exercises powers to seize or search property without judicial approval, that officer is required to provide a written report to an "appointed person". This written report must detail the particulars of the circumstances that led the officer to believe that the powers were exercisable and it was not practical to obtain judicial approval. We have already spoken about some of the sensitive issues involved. Having received these reports, the appointed person is required to provide the Secretary of State with an annual report on the exercise of the powers, including recommendations on how the system operates. What kind of individual would the Government expect to be appointed to this role? What would his or her qualifications and experience have to be? This individual will clearly emerge as an important person in the system, both helping to ensure that it operates properly and guiding its operations.

I am unhappy that the Bill sets up a relatively lax regime for approving the use of search and seizure powers and then puts in place, in order to make it look good, an initial layer of bureaucracy to assess its functioning, but ex post facto. In many respects we would be much better off if we had a watertight regime in the first place. I beg to move.


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