Clause 60 - Power to enter and seize documents

Serious Organised Crime and Police Bill – in a Public Bill Committee at 10:15 am on 13th January 2005.

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Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 10:15 am, 13th January 2005

I beg to move amendment No. 173, in clause 60, page 33, line 44, at end insert

'in order to take possession of, preserve or prevent interference with the documents specified.'.

We now deal with the power to enter and seize documents. Clause 60(4) states:

''A person executing a warrant under this section may take other persons with him, if it appears to him to be necessary to do so.''

That is a permissive power. Presumably, not every person who might be involved in taking possession of documents is necessarily a constable—in fact, under the arrangements for SOCA, it is quite likely that such a person will not be a constable. I fully understand that it will sometimes be necessary to have other persons present in order to obtain the necessary   information. One can easily envisage circumstances in which the information is held in electronic form, for instance, on a computer system, so that an expert or someone with greater expertise than the constable executing the warrant might have will be needed to access the information on the system. It is perfectly sensible to make it explicit that that is allowable under the law.

There is an oddity in subsection (10)(c), which provides that subsection (4) does not have effect in Scotland. My understanding is there is case law in Scotland covering exactly the circumstances that I have outlined: someone was taken as an accompanying expert, which raised a question in law in Scotland. I should be grateful if the Minister explained the position under Scottish law and why it is either not necessary or not advisable to give express permission for someone to accompany a person executing a warrant in Scotland.

My purpose in tabling the amendment is to make it explicit that the people who accompany the person executing the warrant must be there for the express purpose of ensuring that the information is obtained. I say that because it has become a regrettable practice in some areas of the police service for officers executing warrants to be, on occasion, accompanied by persons who are not in the police service, but who are there to record what happens either as entertainment or for the news. I find that reprehensible; it is completely inappropriate for members of the media to be advised in advance of the execution of a warrant and the entering of a person's premises so that they are there to film the door being broken down and the entry of the police. I have raised it in the context of other criminal legislation, and we have received assurances from senior police officers and others that the practice is discouraged. However, it happens.

Photo of John Mann John Mann Labour, Bassetlaw

I fundamentally disagree. Does the hon. Gentleman accept that the majority of the general public are keen to see such media coverage, such as the breaking down of drug dealers' doors, to build confidence in the process and in the idea that law enforcement agencies are doing their job properly?

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

In that case, we must disagree. In the situation covered by the subsection, we are not dealing with the criminal; the event is not ''the bust''. We are dealing with a person who may or may not have information that relates to a person who has information. That person and their home, with officers intruding on it, should not, in my book, be shown on television for public entertainment. I am sorry to be po-faced, but I fundamentally disagree with the hon. Gentleman about whether a media presence is appropriate. The media intrude into society in all sorts of ways, but this is one area from which they should stay well away.

Photo of Vera Baird Vera Baird Labour, Redcar

It is a brief point, but there is no suggestion that the recipient of a disclosure notice need have any connection with criminality of any kind. It could be a wholly innocent person, who happened to   have documents that the police thought might incriminate someone.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 10:45 am, 13th January 2005

Precisely so. I am grateful to the hon. and learned Lady for that point, because the ramifications of such exposure for that person's life could be extraordinary. A company could be destroyed. A person's privacy could be destroyed. They could attract the attention of the very criminals who are sought by the enforcement agency. That is a serious point, although I do not want to overstate it, because I do not believe that it will be SOCA's policy for its representatives to be trailed by television cameras wherever they go. However, it is perfectly reasonable to say that the people who may accompany a person executing a warrant should be there for the purposes of executing the warrant and not for any other, extraneous purposes.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The hon. Gentleman was extraordinarily restrained in his response to the intervention by the hon. Member for Bassetlaw (John Mann). I am also amazed that the hon. Member for Greenock and Inverclyde (David Cairns) did not immediately get to his feet, given his heat earlier today when my hon. Friend the Member for Beaconsfield was speaking. The hon. Member for Somerton and Frome is right. The intervention by the hon. Member for Bassetlaw related to circumstances prior to any conviction. The fundamental point is that in this country a person is innocent until proved guilty. I am amazed at that intervention. I strongly agree with what the hon. Member for Somerton and Frome is saying: media grandstanding when the police are going about their business is wrong. I hope that, perhaps in another context, we might stiffen the penalties for those who cause such incidents to take place.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I am grateful for the hon. Gentleman's support, although I have to say that nothing amazes me any more when it comes to the comments that are sometimes made in Committee, because there seem to be some extraordinary notions in modern society of what is appropriate behaviour.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

During the 1980s, there was a high-profile series of situations, mainly involving the SFO, in which people were filmed during early morning raids. I thought that that practice was considered to be totally counter-productive and that we had moved on from it.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I think we have and that, in fact, that is not normal practice nowadays. I hope that it will not be in future. That is why I do not think that the amendment will have any large effect in practice; it is not the behaviour that I would expect of SOCA. There is always a temptation, however. Let us remind ourselves of the extraordinary situation exposed by Sir Stephen Lander. One of his targets or performance indicators will be the column inches generated in the press, so there will be quite a temptation for SOCA to have a few high-profile successes early in its life. Officers will be tempted to take extraordinary measures to ensure that everyone knows that they are around, working hard and doing the job that we want them to do, so we must exercise some caution.  

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold

I wish to place one other point on the record, which explains why I strongly disagree with the intervention by the hon. Member for Bassetlaw, whom I generally regard as sound. If warrants are issued in front of the media, there will be a severe danger of trial by media. We must guard against that constantly, or it will totally undermine our criminal justice system.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I am grateful to the hon. Gentleman. Some would say that our criminal justice system has already been undermined in that way, but under the Bassetlaw legal system there is no such concern. I find that surprising, but never mind.

I have expressed sufficient arguments to make clear my reasons for tabling the amendment. First, I would be grateful if the Minister gave assurances on the operation of SOCA; I am sure that she will. Secondly, if she believes that the amendment is unnecessary, will she say why she believes that? Thirdly, will she tell us about the position in Scots law and why the provision is not necessary in the arrangements pertaining to Scotland, but necessary for England and Wales?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

As has been outlined, amendment No. 173 would allow the appropriate person to take other persons with him only when it was necessary to do so

''in order to take possession of, preserve or prevent interference with the documents specified.''

Although I have some sympathy with the issues raised by the hon. Gentleman, we are concerned that the amendment might provide too narrow a definition for practical application.

In specifying some of the purposes for which other people could be present, we would effectively exclude their being present for other purposes. Our view is that there are a number of legitimate reasons why investigators may need other persons present, but they would be excluded under the amendment. In particular, it could prevent the prosecutor being present to advise. It could also prevent others from being present to secure access to the building or to ensure the safety of those doing the search and those being searched.

Comments have been made about the media. I have some sympathy with my hon. Friend the Member for Bassetlaw. I recognise that, in certain circumstances, it is important that the public are made aware through the media of the action that the police are taking against criminals in the local community. For instance, in Doncaster—I am sure that it is also the case in Bassetlaw—when the police have made drug raids, they have leafleted households to let them know what was going on, and it has also been reported in the papers. That is important. In certain circumstances, however, it is not appropriate to use the media, and there are questions about disclosure when trying to seek information linked to an investigation into organised crime, especially if those issuing the disclosure notices have no awareness of how their involvement might be linked.

As with other matters dealt with in the Bill, particularly the discussions to come this afternoon on money laundering, even without the disclosure   powers, we will need the active support of lawyers, accountants and financial institutions to assist us in our endeavour to tackle money laundering and so on. Later today, on some of the measures that we have been considering, and based on advice from people working in that sector, we shall discuss how we can make it better for people to participate without it being too onerous.

As for the media, I suggest that the clause already makes adequate provision. When a warrant is served under subsection (4), it has to be necessary, and by no stretch of the imagination could one say that the media are ''necessary'' to the issuing of a warrant.

Devolution obviously means that Scotland operates differently from England and Wales, and, for that matter, Northern Ireland. As I understand it—I am happy to write in more detail if my explanation is not as comprehensive as the hon. Gentleman might wish—in Scotland, express authorisation would have to be given in a search warrant for specific persons to accompany police officers on a search. The sheriff has the power to authorise such appropriate persons to attend a search. We do not think it necessary to make specific provision for that. It is one of those areas where we have our separate ways; what we might think appropriate for England and Wales is done differently in Scotland.

I hope that I have explained our views. The appropriate person is authorised only when necessary. We do not need to set out an exhaustive list of the purposes for which it may be necessary. For that reason, we feel that the clause is adequate to protect the person from whom the disclosure is sought or the warrant executed; it will protect them from a whole baggage of people coming along without justification.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I am grateful for the Minister's response, but I gently chide her on one point. Scots law is not a matter of devolution; it was never part of the jurisdiction of England and Wales. It is a separate entity. It would help if the Minister were to provide me with further details, so that I know exactly what is the situation. However, as I said, I understand that this was challenged in court and that there was case law, from which there is a requirement for the sheriff to stipulate who may accompany a person executing a warrant. That is not necessary in English and Welsh law.

It is difficult to see how my amendment narrows unnecessarily the scope of those who may be sent to execute a warrant, because if they are necessary to do so, the doing so is what I have added. Of course it is possible to argue the other way and say that the words are unnecessary because the point is already covered.

I have my doubts, but the Minister's comments have helped to set out the Government's position. Again, the matter could usefully be addressed in the guidance to prosecutors and to the officers of SOCA. Perhaps she will consider doing so when the time comes. She has indicated assent, for which I am grateful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.  

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

I beg to move amendment No. 214, in clause 60, page 34, line 10, at end insert


(c) there shall be liberty to apply to the court granting the warrant by any interested party for the return of the original documents or device,'.

The amendment relates to powers to seize documents and devices and our need to consider how long they can be held for. It is aimed at providing some process whereby a third party, whose device or document has been seized, has a right to apply to a court to have that device or document returned. This is particularly relevant to a third party whose device or document has been seized by the investigating authorities and who needs it back to conduct valid business. As things stand, a third party cannot get their property back, and they should have the right to ask a court whether they can.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I understand the sentiments behind the amendment, but I believe they are covered by the Bill. Subsections (7) and (8) clearly set out the conditions under which prosecutors will decide whether documents or devices can be retained. An interested party seeking the return of a document or device can approach the prosecutor, who will determine whether retention is still justified under the subsections. If the person is not satisfied with the prosecutor's decision, it is open to them to go to court to seek judicial review of the decision or a civil order for the return of the documents or devices. Additionally, if the document or device is seized by virtue of part 2 of the Criminal Justice and Police Order Act 2001, the usual safeguards, including the ability to apply to a court for the return of documents or devices apply. We believe that that is sufficient, so I ask the hon. Gentleman not to press the amendment to a vote.

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Home Affairs)

The Minister's judicial review would be a rather otiose procedure for the average businessman who wants his contract back, but I hear what she says, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 60 ordered to stand part of the Bill.

Clauses 61 to 64 ordered to stand part of the Bill.