Clause 27

Serious Crime Bill [Lords] – in a Public Bill Committee at 12:30 pm on 3 July 2007.

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Powers of forfeiture in respect of offence

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I beg to move amendment No. 128.

This may be quite an important amendment. It is an amendment to the forfeiture powers contained in the clause. I draw two specific facts to the attention of the Committee. Subsection (2) makes it plain that an order can have an effect in respect to a property in which a third party has an interest. When one approaches the clause, one assumes that the only person who has an interest in the property which is capable of being forfeited is the person who has committed the  substantive offence under clause 26. Clearly and inevitably, one must recognise that other people may have an interest. They may be partial owners or have an equitable interest and so on. They may be a hire purchase company, for example. Therefore, third parties can have an interest in property which is the subject of the forfeiture order.

Subsection (5) states that the forfeited property can be destroyed, and that is a pretty permanent outcome. Therefore, a property that is subject of a third party claim can be destroyed under the forfeiture order. That is the background, which is quite serious. One looks at the forfeiture powers in the clause to see if one can find any guidance over the approach that the courts will adopt. I have heard the Minister many times say, “Don’t worry, Mr. Hogg, it is all in the convention.” I have in front of me the Human Rights Act 1998 and, in particular, the convention. I suspect that the Minister will say it is covered by article 1 of the first protocol, which provides that

“every natural legal person is entitled to the peaceful enjoyment of his possessions.”

So far, so good. It goes on to say:

“No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

That is motherhood and apple pie. The article continues:

“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

That is pretty general stuff. If I were a person whose interest in property would be affected by a forfeiture order, I would not draw much comfort from the article; I would have some difficulty in spelling out the approach that the court would adopt. We are saying of and to the courts, “You are going to be the legislators, because by your interpretation of this article, you are going to provide the safeguards that Parliament has not provided.”

That is deeply offensive; it is the business of Parliament to spell out in legislation the criteria that the court should adopt in the context of such matters. In any event, such protection as is afforded in article 1 and elsewhere in the convention is so much in the hands of the court that it leads me to think that, unless we put the provisions that I contemplate in the amendment into the Bill, we are neither providing proper protection nor doing our duty.

I am perfectly willing for the Minister to say that the language of the amendment is defective. So it may be, and we can talk about that, but the concept of “just, necessary and proportionate” should appear in the Bill.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction) 12:45, 3 July 2007

I point out to the right hon. and learned Gentleman that subsection (2) gives people with an interest in property the right to make representations to the court, which will consider whether forfeiture is reasonable and proportionate. We have included that proposal to ensure that it is reasonable.

The right hon. and learned Gentleman has done me a great service: he has saved me having to read out article 1. Without wishing to be sarcastic or flippant, there is a debate to be had on the interpretation of these articles and their application. On the protection of property, article 1 says that where it is in the public interest, consistent with the law of the country, just, and done appropriately through the courts, forfeiture of property is not inconsistent with compliance with human rights legislation.

The right hon. and learned Gentleman may say that it is not appropriate in these circumstances, or that he does not agree with it, but that does not make it any the less a fact that it is included in the protocol, for the very reasons that we are discussing: when the state wishes to pursue a particular line in order to prevent crime or to prevent people from benefiting from crime, they can clearly use that part of the protocol.

The amendment is unnecessary, and I shall try not to reiterate earlier points in explaining my reasons for rejecting it. The clause is a way of ensuring that those involved in serious crime do not seek to flout its provisions. As well as the offender risking imprisonment for breach of an order, it will be open to the court to order the forfeiture of anything in the offender’s possession at the time of the offence, and that it considers to have been involved in that offence.

For example, when someone has been found guilty of an offence relating to the distribution of child abuse material via the internet, it might be reasonable to place an order that forbids them from owning a personal computer. That would force them to use public access computers, from which they could not disseminate such material, if they needed access to the internet. If they were then found, in contravention of the order’s terms, to own a personal computer, it is reasonable that it should be forfeited. That is the purpose of the clause.

The amendment is unnecessary, because we do not need—as I have said on a number of occasions—to tell the High Court to act justly and proportionately in operating this provision, as it will do so whether we tell it to or not. For that reason, I resist this amendment and hope that the right hon. and learned Gentleman will ask leave to withdraw it.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

The Minister mentioned the seizure of computers in the context of, say, a child pornography case. I want to be clear about something. Is he saying that, if an offence is committed and the court rules that an order is made, there is not a right of forfeiture in law under other legislation and, therefore, there is a need to make a serious crime prevention order? Alternatively, would other provisions in other statutes apply to enable that forfeiture to operate? It is important that we are clear about whether he is saying that an SCPO would be required to cover the facts that he has given.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

This is an additional way of ensuring that crime is prevented. With those explanations, I hope, as I said, that the right hon. and learned Gentleman will ask leave to withdraw the amendment.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

No, I will not. Although the Minister has been gracious in his reply, I disagree with him. He is right in saying that clause 27(2) enables third parties to make representations, but there is no guidance at all in the Bill about the criteria that the court should address when listening to those representations. The Minister will say, “Well, then you go to the convention.” That is so. I shall not read from the convention again, though, because I have done so once.

There is nothing in article 1 of the first protocol that says anything about justice and proportionality. Whether or not the courts will apply a test of justice and proportionality will apply, first, in accordance with their determination as to whether any article applies and, secondly, in accordance with their construction of what is justice and proportionality in the context of the intended objectives of the legislation and the protection afforded by the article. The Minister may or may not be right in saying that the courts, on a forfeiture application, would construe justice, necessity and proportionality as necessary criteria. In any event, these are sliding scales that reflect the gravity of the particular facts of the case.

I urge the Committee as robustly as I can to consider a further point. Time and again, the Minister has said, “Don’t worry, the convention will always apply.” The truth is that it will not always apply; it will sometimes apply. If the Minister says, “Right, then Parliament never need incorporate into the Bill the protecting clauses that historically we have always thought necessary—not even in criminal cases”, one might as well remove the words “knowingly and intentionally”, which are often found in criminal legislation, because the Minister will say, “Oh, don’t worry, articles 6.1 and 6.2 will apply.” However, this is not the way forward.

The courts are a necessary safeguard, but they do not relieve us of our obligation. We should be in the business of spelling out in legislation what we deem to be the necessary criteria and protections, and we should not rely on general language in the articles that may or may not, depending on the circumstances, apply in a particular case. This is not the way forward. We have a duty and we are not performing it. For that reason, I will not beg to ask leave to withdraw the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 7.

Division number 19 Nimrod Review — Statement — Clause 27

Aye: 5 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Clause 27 ordered to stand part of the Bill.