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Lord West of Spithead: My Lords, the Home Office makes appointments in line with the Office of the Commissioner for Public Appointments regulations,
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Baroness Neville-Jones: Given the regime that we have, a so-called appointed person is necessary. On the face of it, that sounds like an appropriate individual. I beg leave to withdraw the amendment.
Amendment 152ACC had been withdrawn from the Marshalled List.
Amendment 152AE had been withdrawn from the Marshalled List.
152AF: Clause 53, page 44, line 44, at end insert-
"47MA Right of third parties to make representations
(1) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before making an order under section 47M if it considers that the making of the order would be likely to have a significant adverse effect on that person.
(2) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the variation of an order under section 47M if it considers that-
(a) the variation of the order; or
(b) a decision not to vary it;
would be likely to have a significant adverse effect on that person.
(3) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the discharge of an order under section 47M if it considers that-
(a) the discharge of the order; or
(b) a decision not to discharge it;
would be likely to have a significant adverse effect on that person.
(4) The Court of Appeal when considering an appeal in relation to an order under section 47M must, on an application by a person, give the person an opportunity to make representations in the proceedings if that person were given an opportunity to make representations in the proceedings which are the subject of the appeal."
Baroness Neville-Jones: My Lords, the Bill already provides that a person affected by a detention order can apply for the discharge or variation of that order, or appeal against any decision made on the order. The amendment would also give third parties with an
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Lord West of Spithead: My Lords, the amendment relates to the ability of third parties to be heard at an application, variation or discharge of a detention order or an appeal. This is a detention order made by a magistrates' court following the seizure and initial administrative detention of property under the new powers that we are seeking to introduce in relation to the Proceeds of Crime Act 2002.
In the other place, the then Home Office Minister Vernon Coaker made it clear that we need to take account of third-party interests in detained property. We have looked again at this issue in consultation with the Ministry of Justice and I assure the House that our commitment to the interests of third parties can be met without the need for provision in the Bill.
We can meet the commitment by amendments to the criminal procedure rules. The rules already provide for giving notice to third parties in other proceedings under the Proceeds of Crime Act 2002, so that those third parties can take part if they wish. The Criminal Procedure Rules Committee will be asked to amend the criminal procedure rules to give such third-party rights under these new powers, and we are confident that the committee will do so willingly. That will enable a third party to turn up in court and argue his case.
With regard to the second and third limbs of the amendments, which look at third-party interests in applications to vary or discharge a detention order, there is already specific provision in the Bill on these matters. I refer in particular to new Section 47N(2)(b) of the Proceeds of Crime Act 2002, as set out in Clause 53. Equally, new Section 47O provides a right of appeal to any person affected by an order against a decision of a magistrates' court on an application to vary or discharge an order.
I know that this was a probing amendment, and I hope that that explanation will allow the noble Baroness to withdraw her amendment.
Baroness Neville-Jones: My Lords, I thank the Minister for his reply and I beg leave to withdraw the amendment.
Amendments 152AG to 152AK not moved.
Amendment 152AKZA had been withdrawn from the Marshalled List.
152AKZB: Clause 53, page 46, leave out lines 22 and 23 and insert-
"( ) An appropriate officer must keep under constant review the detention condition and release the property if that condition is no longer met."
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Baroness Neville-Jones: My Lords, this is a probing amendment. It would replace the existing requirement that sees property being released if at any time the appropriate officer "decides" that the detention condition is no longer met. It would instead require that the officer kept under constant review whether the detention condition was no longer met and release the property if it was not. In effect, I am saying that it would be good to have a procedure, not simply a requirement that could be exercised on no particular basis by the existing officer. I beg to move.
Lord West of Spithead: My Lords, Amendment 152 Alpha Kiwi Zulu Bravo-these amendments are getting rather long, aren't they?-essentially introduces an explicit provision that the detention of property must be constantly reviewed and that the property must be released if the detention provision is no longer met.
Your Lordships will note that there are already a number of safeguards that accompany these new powers in recognition of the need to ensure their focused and proportionate use. The conditions for exercising the seizure power are set out in new Sections 47 Bravo and 47 Charlie(1). These require that an individual has been arrested, or proceedings have begun against him, and there is reasonable cause to believe that he has benefited from the offence. The officer must also have reasonable grounds to suspect that the property may be made unavailable for satisfying a confiscation order or that the value of that property may be diminished.
In the other place, in recognition of the constructive debates on the powers, we introduced an amendment to place an explicit duty on an appropriate officer to release detained property if the conditions and reasons for its initial seizure no longer existed. This duty is set out in new Section 47R(2). I am satisfied that an explicit power to release property if it no longer meets the detention condition provides an implicit duty that the position must be reviewed regularly.
In addition, we will ensure that a duty to review detention is included in the code of practice that has to be introduced under new Section 47S. We have already made such a commitment in the government reply to the 10th and 15th reports from the Joint Committee on Human Rights of Session 2008-09.
Annexe B of that document sets out a draft skeleton for the code of practice. Significantly, a passage in it addresses the point, stating:
"Ongoing consideration of the validity of the detention and duty to release if detention conditions no longer met. A senior officer undertaking a formal review of continued detention every three months".
Your Lordships will note that the quote I have just given is not in full, grammatical English. That was not because I read it incorrectly, but because the skeleton code was drafted with bullet points rather than with full sentences. Your Lordships will have the opportunity to scrutinise the code of practice before the powers come into force. The order bringing the code into force is subject to an affirmative resolution of both Houses.
In conclusion, I suggest that the provision that we have introduced, together with the requirement in the code of practice for a senior officer to conduct a review of the detention condition every three months, amounts to a strong and sufficient safeguard and certainly meets the spirit of the amendment.
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I fully appreciate the concerns expressed about controlling the new power of search, seizure and detention-indeed, I share them-but I am satisfied that there are sufficient safeguards and that the points raised by the noble Baroness are already addressed. In the light of my explanation, I hope that she can withdraw her amendment.
Baroness Neville-Jones: My Lords, in light of the assurance that the codes contain an explicit process and provision for regular review, I beg leave to withdraw the amendment.
Amendment 152AKZC had been withdrawn from the Marshalled List.
Clause 62 : Detention of seized cash
Baroness Neville-Jones: My Lords, this is a very short, probing amendment. The Government have not explained in any of their notes why the period for which a court may authorise the further detention of seized cash is being increased from three to six months. It would be very helpful if the Minister could give an explanation. I beg to move.
Lord West of Spithead: My Lords, under the Proceeds of Crime Act 2002, the police, Revenue and Customs officers and accredited financial investigators have the powers to seize, detain and apply for the forfeiture of cash suspected of being the proceeds of, or funds intended for use in, crime. Forfeiture is subject to an order by a magistrates' court in England, Wales and Northern Ireland, or by the sheriff in Scotland.
These powers have been hugely successful, with the forfeiture of more than £100 million of seized cash in England, Wales and Northern Ireland in the past three years. I am sure that what we are hoping to enact now will make it even more successful. The number of cash forfeiture orders made by the magistrates' courts has increased significantly during recent years, from 765 orders in 2005-06 to 3,223 in 2008-09.
At present, when cash is seized, the seizing authority needs to get a magistrates' court or a sheriff to make a detention order, which then needs to be renewed every three months until, following the completion of the necessary investigations, an application is made for the cash to be forfeited. This process of renewing the detention order can be time-consuming for both law enforcement and the courts. Clause 62 extends the interim period during which cash can be detained from three to six months, which would result in fewer applications to the courts for continued detention, although parties will still have the right to apply at any time for the release of the detained cash. The maximum period of the detention of the cash, with recurring judicial detention orders, will remain at two years. The Government's proposals represent a fairly modest change
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After my explanation for the reasoning, I hope that the noble Baroness feels able to withdraw her amendment. After completing this debate, I apologise that I shall have to leave the Chamber because of other commitments, but people who are even better than me will be here to argue through the remainder of this Bill.
Baroness Neville-Jones: I thank the Minister for the reply. I beg leave to withdraw the amendment.
5.15 pm
Amendments 152AKAA and 152AKAB not moved.
152AKAC: After Clause 65, insert the following new Clause-
"Definition of European Framework List
The Secretary of State shall produce guidance on the definition of those offences listed in Schedule 2 to the Extradition Act 2003 (c. 41) (European framework list)."
Baroness Neville-Jones: Under the European arrest warrant, British citizens can be extradited for ill defined offences that might not even constitute a crime in the UK or in many other European countries. This has been a concern since 2002, when the Home Affairs Select Committee considered this issue. The Committee said:
"We have grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the member states of the EU makes it difficult for us to be ... confident ... that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute a criminal offence in the UK ... Our sense of unease is heightened when we look at the list of 32 offences specified by article 2.2 of the framework decision ... It is apparent that these offences are defined in generic terms and are probably better described as 'categories of offence'. As noted above, the UK Parliament has no power to amend them ... We asked the Home Office what information it has about how these offences are defined in other countries. The Home Office responded that it 'does not have detailed definitions of offences in the criminal justice systems of other EU member states'".
Amendment 152AKAC would require the Secretary of State to produce guidance on the definition of those offences listed in Schedule 2 to the Extradition Act 2003. I beg to move.
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The Attorney-General (Baroness Scotland of Asthal): My Lords, I hear what the noble Baroness says on Amendment 152AKAC, but that was listed together with Amendments 152AKAA and 152AKAB, and all of those issues require the judge to consider both the evidential standards and the EAW list of offences when considering forum. I am not sure what the noble Baroness feels that those amendments will do in relation to Amendment 152AKAC, because-if I may respectfully say so-both amendments conflate conceptually two separate issues. For example, conflating the dual criminality and the forum presupposes that an offence is punishable in the United Kingdom, which it may not be.
We do not believe that this amendment is necessary, and invite the noble Baroness not to continue with it. As she will know, the evidential requirements on our extradition partners vary, and to penalise our most trusted partners for meeting evidential requirements seems unhelpful at best and, some might say, even bizarre. I am not aware of judges seeking guidance on interpretation of the list offences, and we feel that the current system is more than adequate.
Baroness Neville-Jones: My Lords, these are complex issues and the noble and learned Baroness the Attorney-General has written to Members of your Lordships' House addressing some of them, including this one. The issue that lies between us is whether there is imbalance in the evidentiary standards and how that jurisdiction is decided in cross-border cases. At this stage, we will consider her letter carefully, but I think we shall return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.
Lord Thomas of Gresford: The noble Baroness has not moved Amendment 152AKAA, and I give notice that I may well return to that myself on Report.
Lord Lloyd of Berwick: I was not quite sure which amendment we were on. However, if we are on what has been called the forum amendment, at this stage I certainly found the arguments that the noble and learned Baroness the Attorney-General advanced in the memorandum completely convincing-particularly, the arguments on the second bullet point on its last page and the example that she gave in paragraph 21. In short, it seems to me that the question of whether to prosecute must be for the prosecuting authorities, and it follows that the question of where to prosecute must also be for them. Where there are two competing jurisdictions, it can only be resolved by agreement between the prosecuting authorities in the two different countries. I cannot see how it could conceivably be resolved by a judge in this country.
Clause 67 : Extradition to category 1 territory
152AKAD: Clause 67, page 81, line 33, at end insert-
"(4) When proceeding under this section the judge must consider whether the extradition is barred under section 11, 21 or 25.""
20 Oct 2009 : Column 604
Lord Thomas of Gresford: My Lords, this amendment and the ones grouped with it, which I put forward, are suggested to us by Justice. The proposed amendments to Clauses 67 to 69 deal with a gap in the application of the Extradition Act to circumstances where it is discovered that a person arrested has charges pending or is serving a sentence in the United Kingdom. The current power to defer exists only at the time of the extradition hearing, not before. We welcome the identification of this omission. However, we feel that bars to extradition should be addressed at the point when the request is made, not once the domestic matter has been resolved at some date in the future.
There are, of course, a number of bars to extradition: the requesting country may retain the death penalty or may be guilty of torture; there is a passage of time bar; the crime has already been tried in another country; the defendant suffers from a physical or mental condition through which it would be oppressive or unjust to extradite that person. Those issues should be determined at the time of the request and not left until the defendant is released from whatever period of custody or imprisonment he may be undergoing in this country, because for the whole of his time in prison he will wonder whether the bars that he wishes to put forward will be accepted by the court. If the requesting state wants to pursue the warrant when he is released, it should do so at that point when it can reissue its request to this country, and bars to extradition could be considered at that point.
Our amendment would obligate the judge or the Minister to consider bars or human rights implications at the requesting stage where the current and proposed legislation does not allow them to do so. I beg to move.
Baroness Scotland of Asthal: My Lords, I think I understand the basis on which the noble Lord makes his contention in relation to submissions, but I am afraid that I do not agree with him. In cases where a person who is the subject of an extradition request is serving a sentence in the United Kingdom, the Extradition Act allows a decision to be made about whether extradition should be deferred until the end of that domestic sentence.
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