Clause 16 - Extension of statutory search powers in
Crime (International Co-operation) Bill [Lords]
10:30 am
Mr James Paice (South East Cambridgeshire, Conservative)
I beg to move amendment No. 34, in
clause 16, page 10, line 16, after first 'investigation', insert
'of which he has personal knowledge'.
Mr Joe Benton (Bootle, Labour)
With this it will be convenient to discuss the following:
Amendment No. 35, in
clause 19, page 11, line 33, at end insert
'within such time as the Secretary of State may by order prescribe'.
Amendment No. 36, in
clause 19, page 11, line 33, at end insert—
'(1A) A constable who has seized evidence under or by virtue of sections 16, 17 or 18, shall make and retain a copy (or, where appropriate, a photograph or other representation) of that evidence in accordance with regulations which shall be made by the Secretary of State by order.'.
Amendment No. 133, in
clause 19, page 11, line 32, after 'sent', insert
'after a period of seven days'.
Mr James Paice (South East Cambridgeshire, Conservative)
The Conservatives have three disparate amendments in this group, which includes one tabled by the Liberal Democrats. In amendment No. 34, I return to a point that I raised in a previous sitting. There appears to be a discrepancy between the Bill and the explanatory notes in relation to obtaining the warrant for statutory search powers and whether the officer who seeks such a warrant knows what he or she is talking about.
As drafted, the Bill refers to the person making the application as a member of the international joint investigation team. Simply being a member of a team does not necessarily mean that every member is fully up to speed with the details of the case, and paragraph 61 on page 11 of the explanatory notes states:
''The constable making the application for the warrant or order would have personal knowledge of the joint investigation as he would in making such an application in a domestic investigation.''
Although it may seem pedantic, the amendment would put in the Bill precisely what the explanatory notes
lead us to expect would be the case: that anyone making an application for a warrant knows what they are talking about and has personal knowledge of the case rather than simply being part of a team, which could be a loose association. It may be difficult to define precisely who is a member of a team.
I am delighted to point out to the hon. Member for Somerton and Frome that the issue raised in amendment No. 35 was not debated in the other place, nor was the issue raised in amendment No. 36, before the hon. Gentleman rushes to assert his reason for tabling his amendment.
Clause 19, which refers to seized evidence, presumably the result of search powers, should include a time frame in which to comply with the request for assistance. Amendment No. 35 proposes that the time scale be laid down by the Secretary of State, and the hon. Gentleman's amendment proposes a period of seven days. It is a matter for debate; an element of discretion would be appropriate because seven days may not be enough time in some cases. The Secretary of State should have discretion, but he and the authorities need some discipline to deal with the matter within a reasonable period. Requiring the Secretary of State to lay down a time frame would make things clear and clarify the issue for the overseas authorities who seek information from this country. They would know the time they had to operate, how long they had to wait and when they could proceed to the next part of their proceedings.
Amendment No. 36 is important. It would require a replica or copy of the evidence obtained in this country to be made before it is passed to an authority from another country. The Minister will challenge me by asking why we need a copy in this country—the answer might be that I do not know—and I will tell him that it is because it is not possible to foresee the circumstances in which that information could be useful. We do not know whether subsequent investigations may hinge on that evidence. This country could commence a criminal investigation on the back of what has taken place in a court in another country. That happens, and the evidence may become useful at a later stage. It is important therefore that a copy, replica or representation should be made so that our authorities have a record of the evidence that has been handed over.
Lady Lady Hermon (North Down, UUP)
The hon. Gentleman has raised an important point. One example of its significance would be if evidence were requested by the Republic of Ireland in the ongoing investigations into the Omagh bombing, because there are persons who have not faced trial in the Republic but whom we believe to be connected with the bombing. If evidence left Northern Ireland under this legislation—properly, as I welcome co-operation between member states—I would hope that in pursuing those within Northern Ireland who are responsible and have never been brought to justice for the deaths of 31 people in Omagh, we would be able to avail ourselves of the evidence that had been sent to the Republic of Ireland.
Mr James Paice (South East Cambridgeshire, Conservative)
The hon. Lady has filled a gap in my knowledge and argument, and I am grateful to her. She gave a good example and clear answer to the question that I suggested that the Minister might ask.
Another point, on which the hon. Lady's intervention allowed me to refresh my mind, is about protecting our officers from accusations that they have tampered with evidence. The police have raised their concern about protecting British officers from misplaced accusations, which is relevant for several parts of the Bill, especially clause 82. If a copy, replica or representation of evidence is taken, it could help prevent or respond to accusations that the police in this country have tampered with evidence, collected incorrect evidence or failed to send it all. Although the three amendments are in some ways disparate, they are all important. However, amendment No. 36, which is about keeping a copy, is the most important.
Mr David Heath (Somerton and Frome, Liberal Democrat)
I thank the hon. Gentleman for tabling the interesting and novel amendments. They explore important areas, and I have some sympathy with each of the three. I shall speak briefly to those amendments before covering my own.
The hon. Gentleman is right that amendment No. 34 could be held to be pedantic. I have not had a chance to look at the Police and Criminal Evidence Act 1984, so I have not checked whether a similar requirement is written in law for domestic search warrants. He drew the analogy of practice in an English court, and it is a question that would not normally be asked by a magistrate or circuit judge who agreed to a search warrant. Irrespective of whether it is written into statute, it raises an important point and I hope that the Minister will respond appropriately.
The hon. Gentleman's point about keeping a record of evidence is serious, and I agree that amendment No. 36 is the most important of his group. One can envisage circumstances in which evidence requested and removed from the United Kingdom on this basis might have evidential value in future proceedings in the UK or in disciplinary hearings against officers who were accused of improperly discharging their duties. It would be entirely appropriate to have some sort of record, and I hope that the Minister will seriously consider the point. If he cannot accept the amendment, I hope that he will at least take advice on the value of the proposed procedure.
On the time frame, amendment No. 133, which is in my name and that of my hon. Friend the Member for Orkney and Shetland, and amendment No. 35 work in opposite directions. The time frame in one would mean that evidence could not be passed on before a certain time, while the time frame in the other would limit the length of time that the overseas authority could reasonably expect to wait before evidence was transmitted. Both amendments have their value.
My amendment was suggested by the Law Society and is intended to deal with one of its concerns, which I hope that the Minister will address. The society does not want to frustrate the principle or the reality of mutual recognition, or to impede the passing on of evidence. However, it is concerned about the position of legally privileged material, as set out in the Criminal
Justice and Police Act 2001 and in code B of the 1984 Act. The protections in those Acts reappear in clause 26, but if evidence is passed on before a reasonable time—it need only be a short time—there will be no opportunity to make an application in respect of legally privileged material. In other words, the safeguards will be rendered useless by the fact that the evidence has already been passed on. One could complain as much as one liked to the court that it was legally privileged, but that would have no effect once it had passed to another jurisdiction. The Law Society therefore suggests that there should be at least a short period to allow that process to take place and the safeguards to become a reality.
I think that the Minister understands the point, and it is not unreasonable. I leave it to him to decide whether seven days is an appropriate length of time. The purport of the comments by the hon. Member for South-East Cambridgeshire was that there should be an upper limit, although I do not know what would constitute a reasonable period—one could almost pluck a figure out of the air. However, it would be reasonable at least to give authorities guidance as to what would constitute a reasonable upper limit.
This is an interesting group of amendments, all of which have a purpose and all of which would make a significant difference to the operation of the Bill. The Minister would do well to take careful note of them.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
The purpose of the amendments is to impose greater safeguards on the acquisition and communication of evidence obtained in response to an overseas request. However, the Bill already provides sufficient safeguards.
Amendment No. 34 relates to subsection (2)(b) and to international joint investigation teams. Article 13 of the mutual legal assistance convention provides a framework for establishing such teams. Their purpose is to carry out joint investigations into crimes with cross-border elements, with a view to improving and speeding up the investigation of such crimes. Teams will be set up by two or more member states for a specific purpose and for specific investigations, which may be carried in any of the participating member states. All team members must act under the direction of the team leader, who must be provided by the competent authorities of the member state where the team carries out its investigation. If the investigation moves into another member state's territory, the team leader will change. Teams based in the UK and led by a senior UK customs officer, for instance, would be answerable, through him, to Her Majesty's Customs and Excise. Teams led by a senior UK police officer, while in the UK, would be answerable to their own chief of police.
Mr Nick Hawkins (Surrey Heath, Conservative)
When I read in the response from the Attorney-General in another place what the Minister has just read out about the fact that, when a cross-border investigation is taking place, the team leader will change as soon the investigation moves to another state, I was slightly puzzled. It seemed to me that it would be more sensible, as long as officers from the state that it had just moved into were still involved, if
the team leader remained the same throughout. Otherwise, the situation is a recipe for confusion. Will the Minister reflect on that? I realise that he cannot change the practice now, but will he at least talk to his officials about whether it might be talked about with our European partners? Knowing a little about investigations, I submit that the system would surely work better if the team leader stayed the same throughout.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
I am not sure that I agree with the hon. Gentleman. The point that I am making on the amendment is that the team will not be loosely defined, as the hon. Member for South-East Cambridgeshire suggested. The members have to be seconded to the team, and there has to be an agreement to set up the team. The composition of the team is as set out in the original agreement. I am not sure that the hon. Member for Surrey Heath would want that for which he asks. Is he seriously suggesting that a joint investigation team should carry on its operations in this country with a Dutchman or German in charge? I would probably be much more comfortable with that than the hon. Gentleman would be, but that is the purport of what he says. It is not what the convention says, and I am not certain that it would be acceptable.
When an operation took place in our country, we would require that the person leading the team was a senior police officer or a customs officer, and of course they would need other members in order to be able to co-operate with foreign jurisdictions, establish lines of communication and cut out the bureaucracy that would otherwise be imposed. I shall reflect on what the hon. Gentleman says, but I hope that he will, too, because he would have many more concerns about what he asks for than I would.
Lady Lady Hermon (North Down, UUP)
I am grateful to the Minister for taking yet another intervention. I have mentioned this point to him privately, and it concerns me greatly. In the operation of a joint investigation team, with the best will in the world, sometimes things go wrong. Could the Minister confirm that if something goes wrong in Northern Ireland, the complaint will go to the police ombudsman—who does a terrific job against a lot of opposition and who takes a lot of unjust criticism—and that if something goes wrong elsewhere in the United Kingdom, the complaint will go to the Police Complaints Commission?
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
The accountability that the hon. Lady talks about is the reason why the joint team needs to be led by a person covered by the jurisdiction in which it operates. Only if it is led by a British police officer operating in the UK can that team be accountable through that senior person, who is in charge of the team and leading the team for that duration. If it is led by a foreign police officer or foreign customs officer, the lines of accountability would become blurred and difficult.
Lady Lady Hermon (North Down, UUP)
I have to press the Minister a little further, because I was bitterly disappointed by the written reply of 19 May from the Minister of State, Northern Ireland Office. I asked whether any consultations had taken place with the Police Ombudsman for Northern Ireland. Her reply was:
''No consultations have taken place with the Police Ombudsman in relation to the Crime (International Co-operation) Bill.''—[Official Report, 19 May 2003; Vol. 405, c. 591W.]
That was a very disappointing response. I expected there to be consultation.
There might be a joint investigation team with officers from the Garda Siochana. Sensitivities are involved, which must be recognised by the UK Government. If there is a joint investigation team, the ombudsman—or the Police Complaints Authority, elsewhere in the UK—must have jurisdiction to investigate complaints against such officers. That is important.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
I understand that point. When we were drawing up the legislation, we consulted the Northern Ireland Office. It has been involved, and it is happy with the current drafting, but it is difficult for the Home Office to become involved in matters such as the people it chose and how it came to that conclusion. Those are matters for Northern Ireland, but the hon. Lady is seeking to draw me into them. I do not know what consultations took place or whom the Northern Ireland Office chose to consult on the framing of the legislation before it returned to us.
Lady Lady Hermon (North Down, UUP)
I am grateful to the Minister for giving way again: I promise not to interrupt him for at least another five minutes.
I wish to put it on the record that I have no criticism to make of the Home Office. It has worked hard with representatives from my party—on the Criminal Justice Bill, for example—and the Minister has tried to co-operate with my colleagues and I. The difficulty is with the Northern Ireland Office.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
I fear that the hon. Lady is drawing me into something that she is more familiar with than I am, and that this is an axe that she has chosen to grind—I do not use that phrase in a derogatory way—for some time. I do not understand every aspect of the matter, so I hope that she will forgive me if I do not seek to go into it any further.
Mr David Heath (Somerton and Frome, Liberal Democrat)
I shall move the Minister away from Northern Ireland, which may come as a relief to him.
As we are considering amendments to clause 19 and the position of the international joint investigation teams, I hope that it will not be out of order for me to ask this: how will the evidence that is obtained under a warrant by a member of a joint investigation team get to the traditional authorities in the country in question, given that clause 19(3) appears to delete references to the international joint investigation team from the arrangements for transmitting evidence to the judicial authorities?
Mr Joe Benton (Bootle, Labour)
Order. As we are not yet debating clause 19, it might be more appropriate if that question were debated when we do so.
Mr David Heath (Somerton and Frome, Liberal Democrat)
Thank you, Mr. Benton. I am happy to raise it then.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
I will comply with that. However, if the hon. Gentleman reflects on this matter, perhaps he will recognise that a request from a joint investigation team should go back to the joint investigation team. It is for that team to continue its investigation: it is not
obliged to transmit such things to a requesting authority, as it is effectively the requesting authority itself. We can discuss that when we deal with clause 19.
I shall continue dealing with the amendments that we are discussing. On amendment No. 34, subsection (2)(b) enables constables acting as members of international joint investigation teams to apply for search warrants or production orders under the Police and Criminal Evidence Act 1984. That implements article 13(7) of the mutual legal assistance convention, which provides that members of a team should be able to request their own authorities to take such measures as they would be able to request in a domestic investigation. A UK member of a team who is a police officer would be able to apply for a search warrant or a production order for evidence in the UK in relation to an overseas investigation, without a formal request from abroad. Such a request would not be necessary—to go on to the point that the hon. Gentleman was just making—as the police officer would be able to apply for such a warrant or production order on the basis of his own knowledge of the investigation. The usual domestic safeguards set out in PACE would apply to such applications.
Amendment No. 34 seeks to ensure that the constable has personal knowledge of the investigation in question. That is unnecessary, because the constable applying for a search warrant or production order in these circumstances must be a member of the joint investigation team, and the warrant on the order must be sought for the purposes of that investigation. Officers in joint investigation teams will clearly have personal knowledge of the joint investigation, just as they would if seeking a search warrant as part of a domestic investigation.
Amendment No. 35 would impose a time limit for the transmission of seized evidence to the requesting authority, which is to be set by the Secretary of State in an order. Amendment No. 133 would delay the transmission of evidence with the effect that evidence must be held for seven days before it can be transmitted. Both amendments present problems. The imposition of a deadline would be restrictive. The UK is under no obligation to return evidence within a specific period and current legislation does not set time limits. It is a matter of good practice that evidence will generally be returned as soon as possible. Transmission will usually be immediate, but that does not mean that a specified time limit would be of benefit.
There may sometimes be good reason not to return evidence immediately. For example, a request might involve multiple searches, in which case it may be practical to wait until all the evidence has been obtained and consolidated rather than sending a stream of different items back separately. Alternatively, there might be an application for a judicial review, which needs to be resolved before the evidence is transmitted. Other cases will be straightforward and involve a single production order, and it should be possible to send the evidence
back straight away. In such cases, retaining the evidence would cause unnecessary delays.
Amendment No. 36 would impose a mandatory requirement to keep a copy of all evidence obtained in response to a mutual legal assistance request. I can tell the hon. Member for North Down (Lady Hermon) that the police are free to make such a copy if they want to and believe that it will assist them, or they need to because they want the safeguards that the hon. Member for South-East Cambridgeshire mentioned. If a particular investigation was subsequently started in this country, we would be able to request evidence required for our own investigation to be returned under the same jurisdiction that we provided the evidence in the first place. To move from that to a requirement in statute to keep a copy of every item of evidence required is quite different.
The hon. Member for Somerton and Frome asked whether there was a problem with legally privileged material, whether an application could be made and whether there was a potential problem with the immediate transmission. I shall reflect on whether there is a real problem and return to him later. I understand his point, and we would not want to delay straightforward pieces of legislation; I am sure that the hon. Gentleman would not want us to sit on information for seven days without good reason. However, there might be practical problems if people wanted to make a challenge, and we had denied them that opportunity. I shall check the procedures to see whether I can satisfy the hon. Gentleman.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
My hon. Friend may be able to help me.
Mr Stephen Hesford (Wirral West, Labour)
It is possible—anything is possible.
I am listening to the Minister with interest. If we help a foreign jurisdiction collect evidence, and we send the evidence to that jurisdiction under these procedures, is there any duty on it to look after the evidence and treat it properly? My hon. Friend has just made the reasonable point that if we started an investigation, we could request the evidence back. However, if the evidence has been destroyed, lost or mishandled, we will not be able to get it back. Is there at least an expectation or duty to look after the evidence?
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
I do not believe that any duty is imposed by the treaties, but there are, obviously, procedures and requirements within each jurisdiction for maintaining and keeping records, and for looking after evidence that is being used in a court case. They might differ from ours; they might not be as extensive as ours and we might not be able to help with subsequent requests for return of evidence that has been supplied to us. I accept my hon. Friend's point, but the only way round that would be for us to keep copies of every single thing that we send in every case and to be prepared to retain them for long enough to cover all eventualities.
Mr David Heath (Somerton and Frome, Liberal Democrat)
First, I thank the Minister for agreeing to consider my earlier point. I am not trying to be a barrack-room lawyer or to pose difficulties, but I wonder whether police really have the power to make copies and to retain material that they have seized under warrant for the specific purposes of an offence under another jurisdiction, which does not relate to investigation of an offence under British jurisdiction and is not clearly of value in investigative or judicial procedures. Might they not fall foul of data protection legislation in such circumstances? I do not know the answer, and I am not trying to be clever, I just wonder whether that is an issue.
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
The hon. Gentleman might not be trying to be clever, but he seems to want to have his cake and eat it. Let us keep everything by statute—
Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)
Absolutely. I am told that the police can keep information gathered in response to a request from a foreign jurisdiction if they believe that it is appropriate to do so. If the situation is different, I shall clarify it.
Mr James Paice (South East Cambridgeshire, Conservative)
I am grateful to hon. Members who have participated in the debate and to the Minister for his reply. The issue of making and retaining copies or replicas seems, by common consent, to be the most significant. I understand what the Minister says, but I am not convinced about the ability to do so, if it exists, and I share the doubts of some hon. Members about whether there are constraints in the way of the police. I seem to recall that the copying of some evidence is not permitted, but I might be wrong. It is a big issue.
The Minister seems to be saying that if I had used the word ''may'' instead of ''shall'' make and retain a copy, he would have said that it is not necessary because they already can. He seems to be taking issue with the obligation represented by the word ''shall''. I recognise that that might be seen as sometimes onerous. However, as I said in my opening remarks, one cannot always predict events. It is all very well saying to the police that they can if they want to, but they might not know what is coming either. As the hon. Member for Wirral, West (Stephen Hesford) said earlier, one cannot be certain that one will get the material back, whatever the intention might be. I hope that the Minister will revisit the issue. It is important, and we shall want to return to it.
Of the earlier amendments, amendment No. 35 concerns the time scale. The hon. Member for Somerton and Frome read into it that I was working in an opposite direction to his. I was merely leaving the Secretary of State with the flexibility to set minima and maxima. I am reluctant to admit it, but I am probably persuaded by the Minister's argument that there are so many variables that the object would be difficult to achieve, so we shall pass on that.
On the question whether the officer has personal knowledge, I do not see why that should not be in the Bill if it is current practice and if it is described in the explanatory notes. Nevertheless, I recognise the Minister's argument, especially when he referred to
the team being a discrete team, not a loose association. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 ordered to stand part of the Bill.
Clause 17 ordered to stand part of the Bill.