Clause 38

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: Northern Ireland

Amendment made: 201, in clause 38, page 47, line 10, 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.)

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 10:45 am, 24th February 2009

I beg to move amendment 108, in clause 36, page 30, line 42, leave out from ‘a’ to end of line 43 and insert ‘the Crown Court’.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

With this it will be convenient to discuss the following: amendment 109, in clause 36, page 30, line 44, leave out from beginning to end of line 10 on page 31.

Amendment 110, in clause 36, page 31, line 15, leave out ‘a justice of the peace’ and insert ‘the Crown Court’.

Amendment 111, in clause 36, page 31, line 21, leave out ‘a justice of the peace’ and insert ‘the Crown Court’.

Amendment 112, in clause 36, page 31, line 27, leave out ‘a justice of the peace’ and insert ‘the Crown Court’.

Amendment 123, in clause 36, page 34, line 37, leave out paragraph (b).

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

We come to an issue to which the Minister has alluded: appropriate judicial oversight. The principal point with regard to the significant powers set out in the Bill is which is the right court to consider the hearings for extending the period of seizure. There are two factors to consider. First, there is the seriousness of the power and, therefore, the seniority of the court that should decide—a relevant factor in its own right. Secondly, there is the complex nature of the issues at stake, and I think that complex areas of law are likely to arise when the powers envisaged in the Bill are used.

On the point about seriousness, cases involving other existing powers for which a court authorisation is required are currently heard by the Crown court, so we believe that that precedent should be adhered to in this context. I am sure that the Minister will pray in aid the need for speed, the availability of judges and the fact that at times it might be necessary to use the powers set out in the Bill quickly, but I see those as administrative requirements that do not get to the basis of the seriousness of the powers or determine the type of court required to provide the necessary judicial oversight.

If the Government want to make that power available, they must do so on the basis of appropriate judicial oversight, and if they need to organise arrangements so that Crown court judges are available at short notice, that is what they should do, in conjunction with the Ministry of Justice, to reflect the nature of the powers under consideration. Liberty, in its briefing note to the Committee, states that

“under the current provisions in relation to restraint orders (which are less intrusive than this proposed measure) such orders must be approved by the Crown Court. No reason is given as to why, at the very least, the Crown Court is not involved in providing judicial oversight.”

The Crown court is the more appropriate court, given the serious interference with the right to privacy and property that the provisions introduce.

With regard to the issue of complexity, the Bar Council makes some equally important observations that question whether Crown court judges are suitably qualified to address the detailed points of law on trust issues and distinctions between legal and equitable interests  in particular assets. There are several quite technical legal issues involved in that regard, and the Bar Council has highlighted the judgment in the Court of Appeal case of the Serious Fraud Office v. Lexi Holdings. It stated that

“there can be little doubt that the issues which arose in this case concerning beneficial interests, equitable charges and tracing were far from straightforward. They are not part of the daily work of most Crown Court judges, and indeed this constitution of the Court of Appeal Criminal Division was deliberately arranged so as to ensure that appropriate expertise in matters normally falling within the jurisdiction of the Chancery Division was available.”

I think that the Bar Council used that example to demonstrate the challenges, complexities and issues that might arise in the use of that particular power, so without in any way wanting to question or undermine the advice that would be given to the Justices of the Peace on the exercise of their powers, I think that the issues are by their nature extremely complicated.

In that case, the Court of Appeal suggested that, because of the focus and nature of the activities that Crown court judges would undertake, some of the distinct issues of trust, such as ownership rights and the nature of ownership and of particular assets, were not part and parcel of the daily work of those courts. Indeed, if that argument is made about Crown court judges, I am sure that the argument can by extension be made with regard to magistrates courts.

It was difficult to envisage how those powers could be used effectively with that level of oversight, given the highly complex areas of law beyond which a lay magistrate might be expected to make a determination, even with the appropriate legal support that I have mentioned. Because we think that judicial oversight at that level is appropriate for the type of powers envisaged in the Government’s proposals, we consider the measure to be inappropriate. I urge the Government to reconsider their stance and consider carefully what would be suitable judicial oversight to ensure that these powers are used effectively, proportionately and appropriately. We believe the most appropriate way forward is to have that higher level of oversight, based on the precedent for what is envisaged in these provisions.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

These amendments get to the core of the debate on clause 36. It is not the principle of what we are seeking to achieve that is at stake but the mechanism and detail of how we do it. In essence, clause 36 and related clauses extend the power to search and seize property before conviction, before proceedings have commenced and on the suspicion of reasonable cause by the police officers involved. During the Committee’s evidence sessions, both Liberty and the Bar Council, for example, expressed concerns about that power.

When Paul Evans, the director of intervention at the Serious Organised Crime Agency, gave evidence on 27 January, he argued that these changes were largely technical, backed up by the experience of policing in this area since 2002, but the Bar Council argued that they were substantial, and not technical, changes. Martin Evans of the Bar Council said:

“The Bar Council has no objection to the principle that, in effect, personal assets—cars, jewellery or household effects, and other such things—could be detained under this power.”

However, he went on to say that the Bar Council had particular concerns about moving to a lower tier of oversight—from the Crown court to magistrates:

“The proposal permits, on an application to the magistrates, the property to be detained indefinitely. That is a concern because, as I said, it introduces a lower tier.”——[Official Report, Policing and Crime Public Bill Committee, 29 January 2009; c. 86, Q141.]

Liberty has said similar things. Collectively the argument is, what is the evidence that the current restraint system is not working properly? Paul Evans argued that the experience of the past five to six years indicates the system is not working adequately and requires those changes. What is the evidence that the current powers are not adequate? Above all, why are we moving from Crown court supervision to the lower tier of magistrate supervision? The Minister has not explained why we are taking that step in the Bill, yet it is a fundamental one in the eyes of organisations such as the Bar Council and Liberty.

Another question arises from the code of practice. The Minister has reassured us at various points that the Government and the police are not seeking to infringe human rights. They have to take into account European declarations on human rights. When Mick Creedon, chief constable of Derbyshire, gave evidence, he said that, of course, human rights infuse everything they do. Much of this is going to be wrapped up in regulations in the code of practice, which we have not yet seen. Liberty expressed concern that such a major step should be taken based on regulations in a code of practice that is yet to be seen, rather than on regulations in primary legislation.

At the crux of these amendments is the question of why we should move from Crown court supervision to a lower tier of magistrates. That raises related questions regarding the evidence that we need to adopt these new powers, as well as what is going to be in the code of practice and when we are going to see it—it is not sufficient just to receive reassurances from the Minister.

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

The hon. Member for Chesterfield makes a reasonable point, but he must understand—and I have said this on a number of occasions—that if he were in my position or that of the Home Secretary, he would have to wrestle with the fact that a significant number of confiscation orders, which he knows can be passed only by a Crown court, are unenforceable because the assets cannot be got at. That is why he is not against the measure in principle. Frankly, accepting that one can detain assets on arrest, and sometimes in other circumstances, is a big step for the Government, the Opposition and the Liberal Democrats.

The public policy problem is about how we deal with the fact that confiscation orders are unenforceable in many cases. The hon. Gentleman says, “Where is the evidence?” The answer is that confiscation orders involve large numbers of assets that we simply cannot get at—for want of a better way to put it. That public policy problem is part of the issue. The hon. Members for Hornchurch and for Chesterfield accept that fact, so we have to do something about it. Law enforcement, including the excellent chief constable of Derbyshire, who is very close to the hon. Gentleman’s heart, and the Serious Organised Crime Agency tell us that if we are to be effective, quick and easy access to the courts is needed, which is why we proposed the measure.

Let me take the hon. Member for Chesterfield through the procedure. The police, or an accredited financial investigator, decide that they are going to search and seize property. Normally, they would seek prior approval, and there is such provision in the Bill. Frankly—I may not be supposed to say this—I was not sure if an inspector was a senior enough police officer. I thought that there would be an amendment on that because it was something that I had thought about. However, I am reassured about the rank of inspector in every other aspect of prior approval. In most circumstances, we would expect there to be prior approval, but if that approval cannot be accessed, there would be 48 hours to hold the property, then the authorities would obviously have to go to a Crown court for a restraint order. I expect the more serious things to go to a Crown court, but a magistrates court will be acceptable for a simple detention order. Therefore, there is judicial oversight, but the hon. Gentleman is concerned about the level of that oversight; I have been advised that the magistrates courts are perfectly capable.

The hon. Gentleman asked why we are doing this and what the problem with restraint orders is. As the Bar Council said, the property remains in the possession of the person concerned. The fundamental difference with these proposals is that it does not stay with that person—the property is searched, seized and detained. I hope that that answers the specific point about why restraint orders alone are not sufficient. The new power means that the Crown court can add detention of property to the restraint order where appropriate, and nothing can be done with restraint orders except by the Crown court. I imagine that it will deal with more serious concerns and larger amounts of property and the magistrates court will deal with other property.

After 48 hours, further approval is needed to detain the property. There are significant safeguards, about which the hon. Members for Chesterfield and for Hornchurch asked. If somebody acts without prior approval, they will have to report to the appointed person. The Bill also offers another important safeguard that has to be complied with, as the Secretary of State must publish any report received by the appointed person and lay a copy before Parliament, as is the case with other powers under the Proceeds of Crime Act 2002.

As the hon. Member for Chesterfield said, we have not yet seen the code of practice, but because I was concerned about safeguards, the Bill specifically states that the code will be published in draft—I know that we have not seen it yet—and that the Secretary of State must

“consider any representations made about the draft,” and

“if the Secretary of State thinks appropriate, modify the draft in the light of any such representations.”

The Secretary of State must also lay the draft before Parliament, which must then approve the code of practice. Therefore, even though the code of practice has not yet been seen or published, there is a significant effort in the Bill to try to do some of the things suggested by the hon. Gentleman to provide the reassurance that he thinks necessary.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield 11:00 am, 24th February 2009

I thank the Minister for that response. Will the code of practice be seen before or after Report?

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

It certainly will not be seen before Report. The best reassurance that I can give the hon. Gentleman is that Members will have a proper opportunity to look at the code of practice before it is debated by Parliament.

The code will set out how the powers should be exercised proportionately. Before carrying out a seizure, there must be some estimate of the person’s benefit from criminal conduct and of the value of any property to be seized to ensure that only property up to the value of the former is actually seized. There will also be guidelines on how to assess the risk of dissipation, which is what we are all worried about. The code will make clear that it should not be the default position that any person being arrested for an acquisitive crime should have their property seized. It will be important to assess the extent of the person’s criminality and of their unexplained income. The code will provide that particular care should be taken with low-level offenders against whom a confiscation order is unlikely to be made. It will also provide guidance on the definition of exempt property that may not be seized. That point might be of interest to the hon. Member for Hornchurch, because it relates to an earlier discussion. The code will provide for a periodic review by a senior officer of the continuing detention of property under a court order. I hope that that informs the hon. Member for Chesterfield on what we expect the code of practice to contain. Finally, I know that this will not specifically answer the points made by the hon. Gentlemen, but a detention order is subject to an appeal to the Crown court. If a detention order is made in a magistrates court, a defendant can appeal to the Crown court if they wish to object to the order.

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

If, as the Minister said, he wrestled with the concept of whether the inspector was the appropriate level of officer to use the power in the first place, how did he arrive at the decision that a justice of the peace in a magistrates court was the right level for the initial scrutiny? He will recognise that appeals to the Crown court would be at a later stage. Our argument is that the first line of defence should be the Crown court.

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

I took advice from law enforcement officers. As we heard, the member of the Association of Chief Police Officers who deals with the issue said that he felt that the magistrates court was an appropriate level of judicial scrutiny, as did the Serious and Organised Crime Agency. In taking those organisations’ judgment into account, I felt that that level was appropriate.

This is not new; many of the Bill’s provisions replicate provisions in the Proceeds of Crime Act 2002. Given the safeguards that I have mentioned, I am satisfied that that is the appropriate level of judicial approval. We recognise the seriousness of the powers—that is why there are many safeguards. I take the point of the hon. Member for Hornchurch that the initial decision is made in the magistrates court and that although that decision is appealable to the Crown court, that is a latter stage. However, that means that if the Crown court believes that the magistrates court has acted disproportionately and unnecessarily, it can vary or discharge the detention order.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

I have listened carefully to the Minister’s reassurances, but I wish to press him further. In view of what the police have said—presumably in light of their operational experience—why do we need to ratchet this down to the magistrates court? What specific problems have the police encountered over the past five or six years? Has there been a lack of immediate access to the Crown court, or has the Crown court not agreed enough with the police? What has led the police to recommend this change to the Government, when the Bar Council, for example, is alarmed at the implications of moving from the Crown court to a lower tier?

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

As I have said, we have taken the advice of the police. The provision replicates similar powers in the 2002 Act, particularly with regard to suspect cash. These are judgments that people make. The magistrates court provides immediacy and speed of action and the police or other law enforcement bodies can therefore act speedily to ensure that assets are not dissipated. Given the safeguards, particularly the appeal to the Crown court, this response is appropriate and proportionate and I therefore ask the hon. Member for Hornchurch to consider withdrawing the amendment.

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

The Minister’s response to our arguments about the appropriate level of judicial oversight is neither compelling nor persuasive. He talked about wrestling with his conscience over whether the inspector level was the appropriate officer level, and we may perhaps wish to come back to that. In essence, he said that we should take great assurance from and rely on the code of practice, but one of the problems is that the Government’s assurance always seems to be based on something that is not published, or is not available when we are considering significant and substantive powers sought in a Bill. It is difficult for members of the Committee to accept the Government’s assurance when we have not seen the document and do not know what is in it.

We come back to same issues, for example regarding the code of practice on licensing, and I am sure that we will come to them regarding DNA evidence—the Government have tabled amendments on that as well. We just do not know the context. The Government believe that, because of the code of practice, the magistrates court is a more suitable route, but how can they say that with such assurance—notwithstanding what the Bill might say about what the code of practice may include—when we have not seen the code? We can properly assess whether what we are mandating is appropriate only when we have seen that detail.

Mr. Coakerrose—

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

I will give way to the Minister, although I think I know what point he will make.

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

This is precisely why we sometimes try to lay out in great detail the process of drawing up a code of practice. Bills often state that a code of practice will be published in due course, and I have therefore gone out of my way, with the officials, to ensure that there are various stages to that process, which will, in the end, be a matter for Parliament to decide. Also, this is a similar  practice to that found in other codes of practice—in the Police and Criminal Evidence Act 1984, for example. However, I have tried to respond to the points that the hon. Gentleman has made in the way that the Bill was drawn up.

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

I am grateful to the Minister for going out of his way, to use his phrase. However, I still do not think that that is sufficient. Whatever may go into a code of practice or guidance on the way in which these powers can be utilised, that code of practice cannot get to the root of complicated and fundamental points of law and the judgments that will have to be reached on those points of law.

As the Minister will know, in the past I have, sadly, been a lawyer and practised law. I can therefore tell him that issues of equity, legal interest and tracing claims of ownership are very technical issues, which are quite challenging. That is the fundamental point that the Bar Council is seeking to make in the matters that it highlights. When the Minister talked about the various groups and organisations that he had consulted when he was determining that this level of judicial oversight was correct, it was interesting that they all seemed to focus on the enforcement side. There did not seem to have been any consultation with, for example, the Magistrates Association or with the judiciary themselves. Indeed, the Bar Council has made its views very clear, through the note that it provided to this Committee.

If the police and the Serious Organised Crime Agency are saying that they require scrutiny to be at this level, perhaps because of certain practical issues such as the availability of judges or other associated issues, that should be considered. However, I do not think that the Minister has said that. He has said that he has consulted those agencies and they have advised him that they believe that this is the most appropriate level of scrutiny to be applied, but without necessarily giving back-up information or justification for that.

The point was made that the Crown court is used as the appropriate level of judicial scrutiny for restraint orders, which, it is argued, are less intrusive than the types of orders that we are contemplating here. Therefore, although I understand that the Minister has said that he believes that this level of scrutiny is appropriate in the circumstances, I do not think that he has made his case sufficiently strongly to persuade us. That is why I want to divide the Committee on amendment 108.

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 7.

Division number 6 Nimrod Review — Statement — Clause 38

Aye: 6 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment 261, in clause 36, page 32, line 29, leave out subsection (2) and insert—

‘(2) The property may be detained initially for a period of 48 hours.

(2A) But it must be released if within that period the appropriate officer—

(a) ceases to be satisfied as mentioned in section 47B(1), or

(b) ceases to have reasonable grounds for the suspicion mentioned in section 47C(1).’.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

With this, it will be convenient to discuss the following: amendment 113, in clause 36, page 32, line 29, leave out subsection (2) and insert—

‘(2) Provided that any of the conditions referred to in section 47B continue to be satisfied, the property may be detained initially for a period of 48 hours’.

Government amendments 263 and 264.

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

After the Division, may I restore harmony and also reassure the hon. Member for Hornchurch that I have not abandoned my style and approach by saying that, with respect to this particular group of amendments, I see a lot of merit in amendment 113? It raises some important issues. However, I would just like to go through the Government amendments, which I believe address the point that the hon. Gentleman has made in amendment 113. It is important to put this on the record.

I confirm that our policy intention is that property may be detained under proposed new section 47J only for as long as the appropriate officer is satisfied that all conditions under proposed new section 47B continue to be met and he or she continues to have reasonable grounds for suspecting that the property might be dissipated. If the officer is not satisfied on either count, I accept that the property must be released. Government amendment 261 deals with that important point. I am grateful to the hon. Members for Hornchurch and for Bury St. Edmunds for identifying the gap in the provisions.

Government amendments 261, 263 and 264 will add to the new sections of the 2002 Act proposed in clauses 36 to 38. Those provide powers to search and seize property that might otherwise not satisfy a confiscation order or might be diminished in value. We tabled the amendments in response to amendments tabled by the Opposition and we are grateful for their assistance in pointing out the issue. We had taken the point to be implicit, but in response to amendment 113, we are making it explicit.

The Government amendments will add a further safeguard to the operation of the powers, which I think will be welcomed by the Committee. If an officer seizes property, he may detain it for 48 hours before obtaining judicial approval for its continued detention. The amendments clarify that the proposed new section 47B preconditions to exercise the power, and the suspicion of dissipation mentioned in proposed new section 47C(1), must still exist for the continued detention of the property during the 48 hours. That will place a much stronger obligation on the seizing officer to continually consider the grounds on which he operates the powers and the reasons for which the property was seized.

I will take this opportunity to signal to the Committee that I will table a further amendment on Report. In our 12 February sitting, we a had a constructive debate on the need for the police and others to use seizure and detention powers with care and discretion. We all accept that seizing someone’s property is a serious matter. I undertook to consider further the matter of proportionality in the use of powers to detain seized property, and I have done so. I see some merit—a lot of merit, if I am honest—in inserting an explicit obligation for the detaining officer to release property when they are no longer satisfied that the conditions for its detention are met. Necessity and proportionality will be an ongoing consideration, but as a strong indication of the importance that I attach to the proportionate use of the powers, I will place such an obligation clearly in the Bill.

I know that I disagreed with Opposition Members on the last point, but I hope that I have given them and those who read our debates some reassurance that we are continually considering how these necessary powers can be used proportionately, as they are a significant extension of powers.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 11:15 am, 24th February 2009

As the Minister said, Government amendment 261 addresses the issue we raised in tabling amendment 113, but in a slightly different way. Clearly, our point has been taken on board. We welcome that and the Minister’s preparedness to accept our points on the operation of clause 36. I also note his comments on proportionality, which we debated before the recess. We look forward to seeing his amendment on Report to address the need for these powers to be used in a reasonable way.

We are grateful to the Minister for listening to our points and for tabling the amendments. Government amendments 263 and 264 will make the same changes as amendment 261 in subsequent provisions. On that basis, we accept the Government amendments that will implement our proposal.

Amendment 261 agreed to.

Amendments made: 164, in clause 36, page 32, line 41, at end insert—

‘(3) If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—

(a) the decision to refuse the application, or

(b) any decision made on an appeal against that decision.’.

Amendment 165, in clause 36, page 32, line 41 , at end insert—

‘(4) In subsection (2) the reference to the period mentioned in section 47J includes that period as extended by any order under section 47M.’.

Amendment 166, in clause 36, page 33, line 7, at end insert—

‘(3) If such an application is made within that period and the application is refused, the property may be detained until there is no further possibility of an appeal against—

(a) the decision to refuse the application, or

(b) any decision made on an appeal against that decision.’.—(Mr. Coaker.)

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

I beg to move amendment 114, in clause 36, page 33, line 15, leave out ‘ A magistrates’ court’ and insert ‘The Crown Court’.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

With this it will be convenient to discuss the following: Amendment 115, in clause 36, page 33, line 27, at end insert

‘provided that the Court shall only extend the period of detention under Clause 47J by such period as it considers reasonable and proportionate’.

Amendment 116, in clause 36, page 33, line 36, leave out subsection (5).

Amendment 117, in clause 36, page 33, line 40, at end insert—

‘47MA Right of third parties to make representations

(1) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before making an order under section 47M if it considers that the making of the order would be likely to have a significant adverse effect on that person.

(2) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the variation of an order under section 47M if it considers that—

(a) the variation of the order; or

(b) a decision not to vary it; would be likely to have a significant adverse effect on that person.

(3) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the discharge of an order under section 47M if it considers that—

(a) the discharge of the order; or

(b) a decision not to discharge it; would be likely to have a significant adverse effect on that person.

(4) The Court of Appeal when considering an appeal in relation to an order under section 47M must, on an application by a person, give the person an opportunity to make representations in the proceedings if that person were given an opportunity to make representations in the proceedings which are the subject of the appeal.’.

Amendment 118, in clause 36, page 34, line 21, leave out ‘magistrates’ court’ and insert ‘Crown Court’.

Amendment 119, in clause 36, page 34, line 23, leave out ‘Crown Court’ and insert ‘Court of Appeal’.

Amendment 120, in clause 36, page 34, line 25, leave out ‘Crown Court’ and insert ‘Court of Appeal’.

Amendment 121, in clause 36, page 34, line 26, leave out ‘magistrates’ court’s’ and insert ‘Crown Court’s’.

Amendment 122, in clause 36, page 34, line 29, leave out subsection (3).

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

A number of these amendments repeat some of my earlier arguments about the need for proportionality, for judicial oversight to come from the Crown court rather than the magistrates court and for appeal rights to be to the Court of Appeal. In the light of our previous debate I do not intend to rehearse those arguments again. However, I ask the Minister to reflect carefully on the points that have been made not just by me but by the Bar Council and Liberty on the appropriate level of judicial oversight. Obviously we look forward to seeing further Government amendments on the proportionality of the use of these provisions.

Amendment 117 makes a slightly different point. It seeks to give third parties who have an interest in the assets that have been detained, and in respect of which an application for further detention is sought, the right  to make representations to the court. As previously noted, innocent parties may have a direct interest in the relevant assets and their continued detention may cause them hardship. In order that convention rights are maintained and upheld, amendment 117 provides for a specific right to make representations to the court.

It is interesting to note that Government amendment 270 adds a right for third parties to make representations prior to the realisations of assets. If that concept is accepted in that context why should it not equally apply if an order is granted authorising the detention of such assets for an extended period? While we are looking at this part of clause 36, could the Minister tell us why proposed new section 47N(3), on the discharge, variation and lapse of detention orders, provides that an application must be made to the court to discharge the detention order where proceedings for the offence mentioned have been concluded? Why is that not automatic? Why is that court application required? Why does the order not simply lapse in these circumstances?

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

Let me deal with what the hon. Gentleman has said. I think he will be pleased with one or two of the points that I shall make, to continue with this constructive approach. He has made one or two interesting points with his amendments—

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

You’ll ruin his career at this rate.

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

I am trying to enhance his career. Constructive debate is a way to enhance one’s career.

These amendments deal with when the hearing takes place, rather than the level of judicial oversight for the prior approval that we debated earlier. They are about which court is appropriate to deal with the various parts of the Bill. Amendments 114, 116 and 118 to 122 are about which court is appropriate for making an order for further detention of the seized property and for considering appeals. As I explained earlier, these new powers are based on similar provisions in the Proceeds of Crime Act 2002 as regards detention and forfeiture of cash. Judicial oversight as regards seized cash is provided by the magistrates court or a justice of the peace. An appeal against forfeiture of cash is heard in the Crown court. We will, therefore, not create a precedent with such further detention powers and the appeals provisions in clause 36.

As I have stressed from the outset, we expect that higher value or complex cases would be subject to a restraint order. In those cases, the authority for further detention of property would come from the Crown court—as I have said on numerous occasions, restraint orders can be dealt with only by the Crown court. It is only in those cases where there is no restraint order that application further to detain seized property is made to the magistrates court. The magistrate must be satisfied that there are reasonable grounds for suspecting that the seized property might be disposed of or hidden, or that the value of the property might be diminished.

However, the hon. Member for Hornchurch raises an important point in amendments 116 and 122 and I have some sympathy with the concerns that he raises. I want to be satisfied as to the appropriate level of judicial oversight in such cases and whether it is right for a  single justice of the peace, rather than a magistrates court, to deal with the hearings in relation to detention orders. I would therefore like to consider further whether a justice of the peace would be properly equipped to consider applications under proposed new sections 47M and 47N. I hope that the hon. Gentleman will find it helpful if I say that I will give further consideration to those amendments and will return to those matters as the Bill progresses. On that basis, I ask the hon. Gentleman to consider withdrawing his amendments, but I stress that I will consider his points further.

Regarding amendment 115, I again recognise the importance of the detention period being reasonable and proportionate. It will be for the magistrates courts to consider what is a reasonable and proportionate period for which the property can be detained. In addition, as I have previously explained, any person affected by an order can apply at any time for variation or discharge of the order. More generally, the proposed new sections 47B(9) and 47B(10) of the Proceeds of Crime Act, set out in clause 36, mean that the powers cannot be exercised in cases where there is undue delay in the criminal proceedings, or the application to reconsider the confiscation order. Furthermore, a proposed new section 47M(3) prevents undue delay creeping in as regards the continued detention of the property. Such delay is a ground for a discharge of a detention order.

Amendment 117 draws attention to the important issue of the rights of third parties. Let me assure the Committee and the hon. Gentleman that we fully recognise the need to take account of third party interests in detained property. The defendant, or indeed any third party affected by a detention order, can apply for the discharge or the variation of that order. That gives third parties the opportunity to apply to the court for the release of seized property.

The provisions on third party rights in clause 36 mirror those in section 42(3) of the 2002 Act, as regards the rights of third parties to apply for the variation or discharge of a restraint order. There is also a right of appeal to the Crown court against a magistrates court’s decision. As I have said before, those are all appropriate safeguards to ensure that the seizure and detention powers are used proportionally. However, I accept that the rights of third parties are important and therefore I would like to consider further the scope for allowing third parties the opportunity, on application, to make representations in respect of hearings under proposed new section 47N.

Beyond that, a code of practice will contain further details on the exercise of the search and seizure powers, including the need to take account of third party rights, in order to ensure that they are exercised lawfully and proportionately. On the issue of the code of practice, I will take the opportunity to respond to an issue raised by the Bar Council in regard to the dissipation of assets. I confirm to the Committee that the code will make it clear that the risk of dissipation will have to be significant before the property is seized.

I hope that with those remarks and explanation, the offer to consider some of the hon. Gentleman’s points and to consider further the question of the rights of third parties, the hon. Gentleman might consider withdrawing his amendments.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs) 11:30 am, 24th February 2009

I am grateful for the way in which the Minister responded to this group of amendments in that he is prepared to reflect on which is the appropriate court in respect of the provisions in the clause. Equally, I am grateful that he will look also at other points, for example third party rights. While he says that it will be open to a third party to make an application, it needs to be clear that third parties are not prejudiced and that if they have rights in respect of the assets, they are able to make representations at an appropriate stage. If there is an initial hearing, it should be possible to make representations then, rather than the party being forced subsequently to make an application to challenge or override an order that has been granted. However, I accept the spirit in which the Minister replied, and in light of his assurance that he will look at the matter—we will listen carefully to how he responds on Report—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 167, in clause 36, page 33, line 20, leave out ‘free property held by the defendant’ and insert ‘realisable property’.

Amendment 168, in clause 36, page 33, line 20, before ‘, and’ insert

‘other than exempt property (within the meaning of section 47C(4))’.

Amendment 169, in clause 36, page 34, line 1, leave out paragraphs (b) and (c) and insert ‘or

( ) any person affected by the order.’.

Amendment 170, in clause 36, page 34, line 26, at end insert—

‘( ) a person mentioned in section 47M(3), or’.

Amendment 171, in clause 36, page 34, line 27, leave out paragraphs (a) and (b) and insert—

‘( ) any person affected by the order.’.—(Mr. Coaker.)

Amendment proposed: 172, in clause 36, page 34, line 31, at end insert—

‘47OA Detention of property pending section 47O appeal

(1) This section applies where—

(a) an application for an order under section 47M is made within the period mentioned in section 47J, and

(b) the application is refused.

(2) This section also applies where—

(a) an order is made under section 47M extending the period for which property may be detained under section 47J, and

(b) the order is discharged or varied so that detention of the property is no longer authorised by virtue of the order.

(3) The property may be detained until there is no further possibility of an appeal against the decision to refuse the application or discharge or vary the order (as the case may be).’.—(Mr. Coaker.)

Question put, That the amendment be made.

The Committee divided: Ayes 7, Noes 5.

Division number 7 Nimrod Review — Statement — Clause 38

Aye: 7 MPs

No: 5 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Amendment 172 agreed to.

Amendments made: 262, in clause 36, page 34, line 31, at end insert—

‘47OB Hearsay evidence in detention order proceedings

(1) Evidence must not be excluded in detention order proceedings on the ground that it is hearsay (of whatever degree).

(2) Sections 2 to 4 of the Civil Evidence Act 1995 apply in relation to detention order proceedings as those sections apply in relation to civil proceedings.

(3) Detention order proceedings are proceedings—

(a) for an order under section 47M;

(b) for the discharge or variation of such an order;

(c) on an appeal under section 47O.

(4) Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.

(5) Nothing in this section affects the admissibility of evidence which is admissible apart from this section.’.

Amendment 173, in clause 36, page 35, line 12, leave out subsection (3) and insert—

‘(3) Omit section 45 (seizure).’.—(Mr. Coaker.)

Clause 36, as amended, ordered to stand part of the Bill.