Clause 36

Policing and Crime Bill – in a Public Bill Committee at 10:30 am on 24th February 2009.

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Search and seizure of property: England and Wales

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I beg to move amendment 156, in clause 36, page 27, line 27, leave out

‘property held by the person’ and insert ‘realisable property’.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

With this it will be convenient to discuss Government amendments 157 to 162, 167 to 171, 173 to 177, 179 to 181, 186 to 190, 205 to 209 and 334.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Amendments 156 to 162, 167 to 171, 173 to 177, 179 to 181, 186 to 190 and 205 to 209 will be to clauses 36 to 38, which relate to confiscation under the  Proceeds of Crime Act 2002. I explained the policy that the amendments address at an earlier sitting so I will be reasonably brief.

The amendments will expand the new powers of search and seizure of property to include other persons holding gifts made by suspects as well as property held by the suspect. Such property, known as tainted gifts, is already included in the confiscation provisions of the 2002 Act. The goal is to prevent a defendant from disposing of their property to avoid confiscation. Law enforcement officers requested the extension of the powers to other persons holding tainted gifts to close a potentially fatal loophole whereby a suspect merely giving property to family members and friends could undermine the viability of the new powers.

Amendment 173 will repeal the existing seizure power in the confiscation provisions. Section 45 of the 2002 Act and the equivalent provisions for Scotland and Northern Ireland provide that property subject to a restraint order may be seized only to prevent its removal from the country. Clauses 36 to 38 provide for more extensive search and seizure powers, which will subsume the existing powers. Their continued existence is therefore not justified and they will be repealed.

Amendments 168 to 171, 187 to 190 and 206 to 209 are minor guiding amendments. The new powers provide for continued detention once the property has been seized. Initially, an officer may detain seized property for 48 hours. If there is no restraint order or if the officer decides not to apply for one, he must apply for a detention order from the magistrates court.

Amendments 169 to 171, 188 to 190 and 207 to 209 provide that any person affected by a detention order can apply for the discharge or variation of it. They may also appeal against any decision made on the order. The persons affected could be the defendant, a third party or the law enforcement officer who applied for the detention order. I know that the hon. Member for Hornchurch, in some of the amendments that he has tabled, is concerned by the level of judicial oversight, rather than the principle behind the Bill. The hon. Member for Chesterfield is also concerned about that, and we will discuss that with other amendments. I just wanted to highlight that particular section as I will mention it in regard to the ability to vary orders, to appeal against orders and so on, but that is a debate for later amendments.

Government amendments 168, 187 and 206 explicitly provide that a magistrates court cannot advise the continued extension of what is known and defined in the Bill as “exempt property”. “Exempt property” is defined in new section 47C(4) and includes items necessary for a person’s personal use in his or her business location or employment. It also includes:

“clothing, bedding, furniture, household equipment, provisions or other things as are necessary for satisfying the basic domestic needs of the defendant and the defendant’s family.”

Upon seizure, the officer can seize any property held by the defendant, or by the recipient of a tainted gift from the defendant, except cash and exempt property. Exempt property therefore, should not be seized, but it is an important additional safeguard that the court takes account of this issue. There is another protection to ensure that the seizure powers are being used proportionately and correctly. It is obviously important that seizure is not used to deprive a person of their  ability to live. There are similar exemptions in respect to bailiffs and insolvency law. So, there are established precedents that we have tried to use with respect to this particular measure. The same amendment is made for the three UK jurisdictions, which is why we get triple the number.

Government amendment 344, which is consequential to the Proceeds of Crime Act 2002, merely makes repeals to the Act consequential and necessary due to the other amendments that I have spoken to in this group.

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

I am grateful to the Minister for that explanation of the tranche of Government amendments in this group. I hear what he says about judicial oversight and, clearly, that is an issue that we will debate in further detail in other parts of the Bill.

My principal question for the Minister in respect to this group of amendments regards the extension of the ambit of the search and seizure powers by the creation of the new concept of “realisable property”. Can he explain how that definition has been arrived at, and how broad it is intended to be? I hear what he has said about the arguments that have been put to him, by police and other law enforcement agencies, on the need to extend those powers and on the way this has been drawn up, but I would like to understand more clearly how broad the definition of “realisable property” is, because it seems to be very wide in its ambit. Does this provision extend the law significantly, and how will the new clause be applied? What is the actual basis of this provision, and how broad is the definition of “realisable property”, as envisaged by the Government amendments and their practical application?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Let us re-establish what we are trying to do. We are trying to prevent somebody who a law enforcement officer—essentially a police constable—believes is trying to get rid of property to avoid that property being restrained or detained, so that it can be realised in the future when the confiscation order is made.

“Realisable property” is not a new concept; it is included in the Proceeds of Crime Act. The easier way to define “realisable property” is to look at what it is not realisable property, and at what the court would say could not be used for recovering the proceeds of crime. We have therefore tried to define exempt property and say which things cannot, by any stretch of the imagination, be considered to be realisable property. So we are doing it the other way round. Although the concept of “realisable property” is readily understood and has been used by the courts for a number of years, we are coming at it from the other direction by saying what sort of property cannot be used. We have therefore tried to define exempt property.

One of the problems of creating a list is that, as soon as it is completed, something will arise that is not on it. We shall see this later with some of the other amendments that the hon. Gentleman has tabled. The amendment relating to gangs, for example, tries to define “gang-related” activity. We have tried to tell the courts what exempt property is—namely, the things that we expect the court not to treat as realisable property. We then leave it to the court to determine what it means. Our approach has  been to look at this completely the other way around from the hon. Gentleman’s point of view. I hope that that explanation helps him.

Amendment 156 agreed to.

Amendments made: 157, in clause 36, page 27, line 35, leave out

‘property held by the person’

and insert ‘realisable property’.

158, in clause 36, page 27, line 42, leave out

‘property held by the defendant’

and insert ‘realisable property’.

159, in clause 36, page 28, line 4, leave out

‘property held by the defendant’

and insert ‘realisable property’.

160, in clause 36, page 28, line 36, at end insert—

‘(12) In relation to the first or second condition section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.’.—(Mr. Coaker.)

Photo of Simon Burns Simon Burns Opposition Whip (Commons)

On a point of order, Mr. Bayley. I am sorry to interrupt, but would it be convenient for you and the Committee if these amendments were grouped together and taken in one fell swoop?

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

Thank you, Mr. Burns. If the Committee is happy I shall ask the Minister to move the two remaining amendments formally and then the rest can be dealt with.

Amendments made: 161, in clause 36, page 28, line 39, leave out

‘free property held by the defendant’

and insert ‘realisable property’.

162, in clause 36, page 29, line 10, at end insert—

‘(4A) In relation to realisable property which is free property held by the recipient of a tainted gift, references in subsection (4) to the defendant are to be read as references to the recipient of that gift.’.—(Mr. Coaker.)

163, in clause 36, page 30, line 34, at end insert—

‘(4A) An officer exercising a power under subsection (4) may detain the vehicle for so long as is necessary for its exercise.’.—(Mr. Coaker.)