Clause 38
Policing and Crime Bill
10:45 am
James Brokenshire (Shadow Minister, Home Affairs; Hornchurch, Conservative)
We come to an issue to which the Minister has alluded: appropriate judicial oversight. The principal point with regard to the significant powers set out in the Bill is which is the right court to consider the hearings for extending the period of seizure. There are two factors to consider. First, there is the seriousness of the power and, therefore, the seniority of the court that should decide—a relevant factor in its own right. Secondly, there is the complex nature of the issues at stake, and I think that complex areas of law are likely to arise when the powers envisaged in the Bill are used.
On the point about seriousness, cases involving other existing powers for which a court authorisation is required are currently heard by the Crown court, so we believe that that precedent should be adhered to in this context. I am sure that the Minister will pray in aid the need for speed, the availability of judges and the fact that at times it might be necessary to use the powers set out in the Bill quickly, but I see those as administrative requirements that do not get to the basis of the seriousness of the powers or determine the type of court required to provide the necessary judicial oversight.
If the Government want to make that power available, they must do so on the basis of appropriate judicial oversight, and if they need to organise arrangements so that Crown court judges are available at short notice, that is what they should do, in conjunction with the Ministry of Justice, to reflect the nature of the powers under consideration. Liberty, in its briefing note to the Committee, states that
“under the current provisions in relation to restraint orders (which are less intrusive than this proposed measure) such orders must be approved by the Crown Court. No reason is given as to why, at the very least, the Crown Court is not involved in providing judicial oversight.”
The Crown court is the more appropriate court, given the serious interference with the right to privacy and property that the provisions introduce.
With regard to the issue of complexity, the Bar Council makes some equally important observations that question whether Crown court judges are suitably qualified to address the detailed points of law on trust issues and distinctions between legal and equitable interests in particular assets. There are several quite technical legal issues involved in that regard, and the Bar Council has highlighted the judgment in the Court of Appeal case of the Serious Fraud Office v. Lexi Holdings. It stated that
“there can be little doubt that the issues which arose in this case concerning beneficial interests, equitable charges and tracing were far from straightforward. They are not part of the daily work of most Crown Court judges, and indeed this constitution of the Court of Appeal Criminal Division was deliberately arranged so as to ensure that appropriate expertise in matters normally falling within the jurisdiction of the Chancery Division was available.”
I think that the Bar Council used that example to demonstrate the challenges, complexities and issues that might arise in the use of that particular power, so without in any way wanting to question or undermine the advice that would be given to the Justices of the Peace on the exercise of their powers, I think that the issues are by their nature extremely complicated.
In that case, the Court of Appeal suggested that, because of the focus and nature of the activities that Crown court judges would undertake, some of the distinct issues of trust, such as ownership rights and the nature of ownership and of particular assets, were not part and parcel of the daily work of those courts. Indeed, if that argument is made about Crown court judges, I am sure that the argument can by extension be made with regard to magistrates courts.
It was difficult to envisage how those powers could be used effectively with that level of oversight, given the highly complex areas of law beyond which a lay magistrate might be expected to make a determination, even with the appropriate legal support that I have mentioned. Because we think that judicial oversight at that level is appropriate for the type of powers envisaged in the Government’s proposals, we consider the measure to be inappropriate. I urge the Government to reconsider their stance and consider carefully what would be suitable judicial oversight to ensure that these powers are used effectively, proportionately and appropriately. We believe the most appropriate way forward is to have that higher level of oversight, based on the precedent for what is envisaged in these provisions.