Clause 38

Serious Crime Bill [Lords] – in a Public Bill Committee at 5:45 pm on 3 July 2007.

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Powers of law enforcement officers to retain documents

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

I beg to move amendment No. 131, in clause 38, page 23, line 43, at end insert—

‘(1A) Where a law enforcement officer has retained an original document under subsection (1) he shall—

(a) on the request of the person who is the subject of the serious crime prevention order; or

(b) at the request of any person who was given the opportunity to make representations in the proceedings concerned by virtue of section 10(1), (2) or (as the case may be) (3); provide that person with a copy of the retained document unless, on application of a person mentioned in this subsection, a court to which an application is made otherwise orders.’.

In Committee, we have debated many matters of principle, but this is a matter of detail. I might be wrong, but it looks to me as though there might be a significant problem that has not been addressed.

The clause gives power to law enforcement officers to take documents, both copies and originals, and to retain them. One needs to keep in mind that the person who is to be made the subject of the order might well have a legitimate need for a copy of the documents, either to deal with the allegations that have been made—that is natural justice—or to carry out his ordinary business. That applies also to third parties, who, as we all understand, might be affected by the order and might have a legitimate need to see copies of the documents, to see whether they wish to make representations to the court, as is provided for in the Bill, or otherwise to conduct their business.

It is possible that I have overlooked a passage, but when I look at the clause, I see no obligation on the law enforcement officers who have taken possession of the originals or copies of documents to deliver a copy on request to the subject of the order or to a third party. That seems to me to offend both natural justice and general disclosure laws that apply in criminal and civil courts.

There might be exceptional cases in which it would be wrong to provide the subject of the order or a third party with a copy. I suppose that one can construct such cases and I have provided for that in the amendment, which would give the enforcement agency the power to go to the court to get relief from delivering up a copy. As a matter of general principle, however, it is right that a law enforcement agency should have to deliver to the person who is the subject  of the order or to a third party a copy of the relevant documents on request. In that spirit, I move the amendment.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction) 6:00, 3 July 2007

I am afraid that we shall resist the amendment. It is unnecessary in relation to the subject of the order, who would be the originator of the document would therefore have had the opportunity to make copies. In relation to third parties, it does not follow that, simply because a third party has been given leave to make representations under clause 10, they should have access to all the material produced under the terms of the order. The subject of an order should not need to make an application to the court every time that he wishes the contents of a document that he has provided not to be passed on to a third party. That would be wholly unreasonable to the subject of the order.

In addition, the amendment could put in jeopardy possible subsequent investigations or prosecutions, as it makes no allowance for the applicant authority or law enforcement agency to make an application to the court for non-disclosure. In the light of those comments, I ask the right hon. and learned Gentleman to withdraw his amendment.

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

I am bound to say that I am disappointed by that response. I draw on a certain amount of experience in this matter. About three weeks ago, I was acting in a case in which the police had seized every single document on the premises and carted them all away. They kept possession of them for more than two years. The idea that my client had access to copies is simply wrong; he had neither copies nor originals. He was facing confiscation proceedings under the Proceeds of Crime Act 2002, so that was a serious deprivation to him.

In appropriate cases, the law enforcement officer should be obliged to provide the person who is to be made the subject of the order with a copy, which he otherwise would not have. If he had a copy, he would not make the application. He would make the application because he did not have the copy and he needed it. I am saying no more than the principle of natural justice and disclosure in the ordinary criminal and civil courts requires. I hope that the Minister will think again, and I do not withdraw my amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Division number 22 Nimrod Review — Statement — Clause 38

Aye: 7 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

Clause 38 ordered to stand part of the Bill.

Clauses 39 and 40 ordered to stand part of the Bill.