Clause 289 - Prior approval

Proceeds of Crime Bill – in a Public Bill Committee at 6:00 pm on 8 January 2002.

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Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 6:00, 8 January 2002

I beg to move amendment No. 452, in page 168, line 3, leave out from 'approval' to end of line 4.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

With this it will be convenient to discuss the following:

Amendment No. 408, in page 168, line 5, leave out from 'officer' to the end of line 6.

Amendment No. 409, in page 168, line 11, leave out subsections (4) to (9).

Government amendments Nos. 443 and 323.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The amendment relates to powers in respect of prior approval, which we touched on when we discussed clause 288. Then, the Minister explained that the powers in that clause could be exercised only with the prior approval of a judicial officer or, if that was not practicable, the approval of a senior officer. Failing that, there are certain other provisions relating to reports on the exercise of powers.

The amendment would require the appropriate approval to be given by no one other than a judicial officer. Thus amendment No. 452 would delete the words

''unless . . . it is not practicable to obtain that approval before exercising the power.''

Amendment No. 408 would restrict the power of giving approval to a judicial officer, and amendment No. 409 would delete the definition of a senior officer and the reference to the reporting procedure that would apply if approval were not given by a judicial officer.

I do not want to dwell on these issues because we have touched on them already, but we would do well to consider one point. If the searches are carried out in the planned way envisaged in the rules and guidelines, one would expect there to be no difficulty in obtaining the approval of a judicial officer, because the searches would be systematic, targeted and intelligence-led, rather than random. If that is the case, why should provision be made for an emergency procedure?

I ask that particularly because, as has already been said, in exercising pre-existing powers to search individuals or premises, the police or customs officers may come across money that they believe falls within the appropriate category. In those circumstances, one would expect them to be able to lay their hands on that money, at least temporarily, until they could obtain the necessary approval of a judicial officer, because the original intention in seizing the money was to investigate a crime. Therefore I question whether the power needs to be so widely drafted. If the Minister is right, there will not be many circumstances in which it is necessary to exercise the power where there is not ample opportunity for a judicial officer to give the appropriate authority.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The Opposition amendments would require judicial approval to be obtained before any search could be conducted under clause 288. The Bill establishes that a senior officer will be able to give that approval if it is not practicable to obtain judicial approval, and recognises that in some circumstances, it may not be practicable to obtain prior approval.

The mandatory requirement to obtain judicial approval would render unnecessary the provisions applying to approval by a senior officer and render obsolete the post of an appointed person and the related provisions. The two Government amendments are minor drafting amendments. As the Bill is drafted, there is a recognition that it will not always be possible for prior approval to be obtained from a judicial officer, or even from a senior officer, before a search is undertaken. There will be occasions on which the circumstances lead an officer to want to search for cash almost immediately. It is important that that officer should be able to conduct that search without prior judicial approval.

It is an unfortunate reality that organising and obtaining judicial approval is a time-consuming exercise. The Government recognise that the search provisions are a significant and intrusive power. The creation of the appointed person to oversee all unsuccessful searches that have been conducted without prior judicial approval is a safeguard to make such searches more transparent and subject to independent scrutiny. If, for example, a customs officer were in a hotel room to seize drugs and suspected that the person present was the seller of those drugs, he might want to search that person and the hotel room for connected cash.

The hon. Gentleman is asking us to encourage the forces of law and order—constables—to try to guess all the circumstances that might arise in any operation in which they are going to be involved, and to obtain prior judicial approval for those circumstances. I ask

him to accept that that is not reasonable. Either it will be ineffective, or in the course of an operation cash will be found that should be forfeited, but the seizure will not have been given prior approval, so the cash will go unseized, if the amendment is accepted. Alternatively, we shall burden both the police and the judicial authorities with countless prior approvals that subsequently prove not to be necessary.

We hope that, in the overwhelming majority of cases, the proposed structure will mean that prior judicial approval will be the route down which the constable or customs officer goes. However, we should not ask such officers to foresee every single opportunity and render them unable to seize cash when it has not been possible to obtain prior judicial authority. Will the hon. Member for Beaconsfield accept that that is the sensible way to create a balance between imposing over-burdensome procedure and allowing cash that should be forfeit to go unseized?

There is an obligation for the constable or customs officer to obtain prior judicial authority whenever it is practical to do so. He will have to justify the fact that he did not, either when the forfeiture gets to court within the two days—if he takes the matter straight to court—or, if the cash is forfeit and handed back, to the appointed person who is to report to Parliament. That should have the effect of discouraging searches that have not been given prior judicial authority, except those that are clearly justified.

Of the Government amendments, No. 443 is a minor drafting amendment. Subsection (4) makes provision as to who qualifies as a senior officer for the purposes of giving prior approval for searches under clause 288. In the case of customs, the clause currently provides that the commissioners are to designate a rank of customs officer equivalent to that of a senior police officer, subsequently defined as an officer of at least the rank of inspector. Although in the context the commissioners could only meaningfully be the commissioners of Customs and Excise, the amendment will ensure that there is no room for doubt on that point. It will also ensure consistency with clause 294, where the full title is already used.

Amendment No. 323 is another minor drafting amendment. Subsection (6) of clause 289 in certain circumstances requires the officer or constable who carries out a search without prior judicial approval to give a written report to the appointed person. Amendment No. 323 will put it beyond doubt that the officer referred to is a customs officer. I commend the Government amendments to the Committee.

I ask the hon. Gentleman to consider his amendments and to accept that they would mean on the one hand the inability to act, and on the other the imposition of unnecessary burdens with regard to prior judicial approval. For those reasons I ask him to withdraw his amendment.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I have noted down beside the three Conservative amendments, ''No'', ''Yes'' and ''Partly''.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The hon. Gentleman seems to have encapsulated in one sentence the whole history of his party's approach to matters in Parliament.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I shall not favour the Committee with my views on what the hon. Gentleman thinks about my party, fun though that might be. Amendment No. 452 would be unduly and unworkably restrictive in requiring the involvement of a higher judicial authority in every instance. However, I am not persuaded that it would be either necessary or desirable to involve senior officers of the police or Customs and Excise, as the Government appear to wish to do in relation to subsection (2). I am aware that that practice has been prevalent south of the border as a result of the Police and Criminal Evidence Act 1984. There are others here better qualified than I am to comment on whether that has worked well. However, it has not hitherto been a feature of the Scottish criminal justice system and I can see no particular merit in introducing it in this way.

Amendment No. 408, which restricts the definition of appropriate approval to that granted by a judicial officer, has considerable force. In passing, I wondered why the definition of a judicial officer in England, Wales and Northern Ireland included a justice of the peace, whereas in Scotland it was restricted to a sheriff. The practice in the Scottish criminal justice system at present is to seek warrants from a justice of the peace whenever possible, rather than to go through the sheriff.

The practice until two or three years ago was that warrant applications, which, broadly, is what we are discussing, would normally be dealt with by a sheriff, and only in exceptional circumstances by a justice of the peace. However, because of the volume of work involved, things have now gone the other way. Warrant applications are now routinely made to justices of the peace, and only for the most serious cases are they made to the sheriff. I would be interested to know what the Government's thinking on that is.

If one does not accept Amendment No. 452, certain parts of amendment No. 409 become unnecessary. The inclusion in subsection (9) of the provisions regarding the appointed person is a necessary and welcome safeguard.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

May I clarify the position—although I am not sure about the involvement of the sheriff, and I may return to the hon. Gentleman on that matter.

The hon. Gentleman seemed to suggest that the involvement of a senior officer was an undesirable step that should not be taken, because he did not want the prior approval of such an officer to be considered relevant. I do not know whether I misunderstood him, but people are not relieved from the necessity for post-approval just because a senior officer has been involved. It is a secondary step, which is meant to ensure that the powers are not used unnecessarily by junior customs officers or constables on the street. If the prior approval of a senior officer is gained, and the case goes to court and is effectively given judicial approval within the 48 hours, or if the case is reported

to the appointed person, the fact that the senior officer was involved prior to the seizure does not preclude the requirement to give a report afterwards. It is an additional safeguard; it does not remove the further safeguard that comes after a case.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 6:15, 8 January 2002

The Minister has put forward a cogent and sensible argument. Although I have an anxiety about the exercise of the power other than by judicial authority, I am reassured by the reporting procedure that will allow Parliament to monitor the use of that power. Slightly reluctantly, I am prepared to concede that circumstances might arise in which it may be difficult to get judicial authorisation, and that that would justify the power being authorised by a senior officer, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 443, in page 168, line 13, after 'Commissioners' insert 'of Customs and Excise'.

No. 323, in page 168, line 22, after first 'the', insert 'customs'.—[Mr. Bob Ainsworth.]

Clause 289, as amended, ordered to stand part of the Bill.