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Counter-Terrorism Bill – in a Public Bill Committee on 13th May 2008.

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Forfeiture: other terrorism offences and offences with a terrorist connection

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 10:30 am, 13th May 2008

I beg to move amendment No. 173, in page 22, line 44, leave out from ‘terrorism’ to end of line 46.

Good morning, Mr. O’Hara, and may I welcome you back to the Chair for our consideration this week? Under the part of the Bill dealing with the forfeiture of terrorist property—provided for originally in clause 32 —the intention is to confiscate property after conviction if it has

“been used for the purposes of terrorism” or

“they intended should be used, or had reasonable cause to suspect might be used, for those purposes.”

In clause 33, which we are now considering, there are amendments to the section of the Terrorism Act 2000 entitled “Forfeiture: terrorist property offences”. Again, amendments are included, the first ones of which one might think are entirely understandable. Forfeiture may be ordered by the court if the property has been

“used for the purposes of terrorism” or

“it was intended by that person that it should be used for the purposes of terrorism.”

But then subparagraph (iii) goes on to say, if

“the court believes that it will be used for the purposes of terrorism unless forfeited.”

The amendment deletes that third section.

This is a probing amendment, but I should be grateful if the Minister would explain what in fact is the architecture that we are putting in place here. My recollection—though I may be wrong about this—is that the Terrorism Act 2000 provides that there should be forfeiture in the cases of terrorist property—that is, forfeiture of property connected to terrorism. But to include a provision that the court believes that it will be used for the purposes of terrorism unless forfeited seems to be an extension of that principle. It may be justified, but it would be useful for the Committee to understand the Government’s reasoning on this point.

I would like to illustrate my possible concerns. On the basis that the individual concerned would almost certainly have been imprisoned for the terrorism offence with which he has been convicted, if the property has not been connected to terrorism in the first place, that raises the question in my mind: what sort of property will the court then be asked to look at to form a belief that it  will be used for the purposes of terrorism unless forfeited? It seems to me to be an exceptionally wide power. Will the Minister therefore tell the Committee what the Government’s intention is here, and what the criteria are that the court would be asked to apply in coming to that determination.

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

I rise to support my hon. and learned Friend the Member for Beaconsfield on this point. We go back in part to the debate we had last week about the imaginary McNulty—because what we have got, or could have again, is the repairer in a garage in whose possession is a vehicle deposited by an innocent third party, and here we have a very wide power to forfeit that could bite on the properties of innocent third parties, so it is rather important that the Government explain the precise reasons for and limits of this power.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I do not want—however pleasant that may be—to go back to the imaginary Mr. McNulty. I thought we dispatched that last week. Equally, let me say what a pleasure it is to be under your chairmanship again, Mr. O’Hara. You will see that we have made, in your absence, some progress, but a little more today would be extremely useful for all concerned.

On the first point made by the hon. and learned Member for Beaconsfield, the architecture of this set of clauses on forfeiture of assets can be found in the Powers of Criminal Courts (Sentencing) Act 2000. This is largely replicated here. He is entirely right: there was a forfeiture element in section 111 of the Terrorism Act 2000, but that was just for Northern Ireland, and has since been repealed. Interestingly, that referred to a similar set of rules, but said that the court may forfeit if it believed that they were used for the purposes of terrorism, and we think that “will be used” is stronger than “may be used” in that regards. So the architecture is not new; it comes from there.

The entire regime that clauses 32 to 37 aim to build on, extends, as I said, that already in place in the Terrorism Act 2000. Such a regime is an important means of ensuring that assets held by convicted terrorists that either have been used, or will be used, for the purposes of terrorism, are removed from circulation. The regime also serves as an additional part of the sentence of the convicted, thereby adding to the deterrent power of the offence.

To ensure that the regime is as effective as possible, it is clearly important that the maximum amount of assets that might be used for the purposes of terrorism are available for the courts to consider for possible forfeiture. In this context, it is sometimes very difficult to prove an intention in the mind of the convicted person beyond reasonable doubt. In these cases, it is right that the court is able to come to its own belief about whether the assets in question will be used for the purposes of terrorism unless forfeited. We think that is an important element of the architecture, as the right hon. and learned Gentleman fairly said. Amendment No. 173 will deny the court that ability.

It is worth pointing out at this stage that this type of wording is not new in legislation. Section 111 of the now repealed element of the Terrorism Act 2000, which applied to Northern Ireland, allowed for forfeiture to  be ordered where the court believed that property may be used in connection with the activities of specified organisations unless forfeited. Actually, as I have implied, this is a lower test than the wording in the present clause, which requires the court to believe that the property will be used for terrorist purposes.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If I understand the Minister correctly, that was with reference to specified organisations and not a general power?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Absolutely so, and specific to Northern Ireland. As I have said to the Committee, in quite rightly looking at the dismantling of the assorted security and terrorist legislation in Northern Ireland, and given the peace process, the Government have sought to learn from those experiences and see how we can improve our legislation, if we think the legislation should be translated into a UK dimension.

It should also be pointed out that the civil standard of proof is required in testing whether there has been unlawful conduct such as to bring into play the proceedings for recovery and confiscation of assets under the Proceeds of Crime Act 2002. Clearly, however, giving the courts this power needs to be balanced by appropriate safeguards to prevent assets being unfairly removed either from the convicted person or from innocent owners, such as the imaginary Mr. McNulty. Such safeguards do exist, and with your indulgence, Mr. O’Hara, I will run through them now, as they are germane to the amendment as well as to the overall clause.

First, the court must still have before it all the necessary evidence in order to make a full and proper investigation into the prosecution's application. This is established in case law with R v. Pemberton 1982, and applies to all court orders for deprivation and forfeiture of assets. The court must also act in a way that is compatible with the European convention on human rights, in particular article 8, the right to respect of private and family life, home and correspondence, and article 1 of the first protocol, the right to peaceful enjoyment of possessions.

The Bill provides greater safeguards than the forfeiture provisions in the 2000 Act and new section 23B(2) provides that the court must also have regard to the value of the property and to the

“financial and other effects on the convicted person of the making of the order”.

Given those safeguards, the existence in other legislation of a similar standard of proof when considering deprivation of assets, and the need for a fully effective forfeiture regime, amendment No. 173 is not necessary and I would ask that it be withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister for helping to enlighten me as to the background and I ask the Committee’s leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I beg to move amendment No. 138, in page 23, line 11, at end insert—

‘section 6 (training for terrorism);’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss Government amendment No. 139.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Clause 33 extends the power of the court in clause 32 to order, as we have just discussed, forfeiture of money or other property under the possession or control of the person convicted by it, from the terrorists finance offences with which clause 32 is concerned, to certain other terrorism offences and offences with a terrorist connection.

A number of offences contained in the 2000 Act and the Terrorism Act 2006 do not have bespoke comprehensive forfeiture provisions attached to them. This clause will allow a court that convicts a person of certain terrorist offences or offences with a terrorist connection to order the forfeiture of money or other property in the possession or control of the person convicted at the time of the offence, which had either been used for the purposes of terrorism, or which it was intended by the person convicted should be used for the purpose of terrorism, or which the court believed would be used for the purpose of terrorism unless forfeited.

The extension of the court’s powers is necessary as the more general forfeiture provisions that exist, in particular section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 do not cover complex assets such as land. It is clearly right that land held by terrorists for terrorist purposes, such as a flat bought to use as a bomb-making factory, is removed from circulation. Specifically, clause 33 inserts new section 23A in the Terrorism Act 2000, setting out the power of the court to order the forfeiture of assets of a person convicted of certain terrorism offences and offences with a terrorist connection.

Subsection (2)(b) contains a list of offences in the Terrorism Act 2006 to which these powers will apply. This includes offences under sections 2, 5 and 9 to 11. Amendment no. 138 would add offences under section 6 to this list. Section 6 of the Terrorism Act concerns the provision and receipt of terrorist training, and section 7 sets out specific powers of forfeiture in relation to an offence committed under section 6, but these are restricted to assets connected to the offence itself. These wider powers of forfeiture ought to be made available to the courts in respect of people convicted for an offence under section 6, as I have said—the provision and receipt of terrorist training—as it may be that such a person has other assets intended to be used for the purposes of terrorism that would not be available for forfeiture under the current regime. This is in line with the extension of the forfeiture regime in general under the Bill. Amendment No. 139 would simply add a line to section 7 of the Terrorism Act 2006 stating that the forfeiture powers set out there in respect of assets connected to an offence are in addition to those in new section 23A.

That is simply tidying up matters on how the three Bills relate to each other. I commend the amendments to the Committee.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I realise that in a sense the Minister is tidying up, but he is creating a very wide-ranging series of powers in relation to forfeiture covering, I assume, the entire spectrum of any offence that might fall within the terrorism definition. It simply means that then it is up to judicial discretion to ensure that all this is applied in a way that is fair. Otherwise one can see it would have the potential of becoming a draconian side sanction  that may be out of all proportion to the actual offences being committed. I say no more about that, Mr. O’Hara. I simply flag up the fact that these are very extensive powers that the state is taking to itself but I trust that, moderated by the judiciary, they will be applied correctly.

Amendment agreed to.

Clause33, as amended, ordered to stand part of the Bill.