Government response to the Second Report,
Session 2001-02, Financing of Terrorism in Northern Ireland: Interim
Report on the Proceeds of Crime Bill, HC 628, submitted by the
Thank you for your letter of 21 February. I
have also received a copy of the Committee's Second Report of
this Session, the Interim Report on the Proceeds of Crime Bill.
I hope you will accept this letter as a response to the Report.
I shall deal with your points in the order you
raise them in your letter.
We discussed this issue during the Report stage
of the Bill on 27 February. I explained then that we are considering
the position for the United Kingdom. It is important that the
staff of the Agency, and those carrying out equivalent functions
in Scotland, should be able to carry out their work without fear
of intimidation or reprisal, in relation to themselves and their
I also explained that we would take into account
the current provisions for anonymity that apply to those who deal
with members of the criminal fraternity. Anonymity is currently
only available to police and Customs Officers in very limited
circumstances, in relation to the investigation of terrorism.
Civilian staff working for bodies such as the Crown Prosecution
Service and the Serious Fraud Office do not have any statutory
right to anonymity. But we are also aware that different considerations
may apply to the situation in Northern Ireland, where there is
provision for court-appointed financial investigators to use a
warrant issued to them under a pseudonym.
We are considering the issues and will announce
our conclusions and bring forward any necessary amendment during
the Bill's passage in the House of Lords.
You are concerned that the Bill does not contain
any provision to allow a senior officer to issue a search warrant
in cases of urgency, as is provided for in Ireland.
We have considered the matter, but we do not
believe that such a provision is needed in the United Kingdom.
Judges in the United Kingdom can issue search warrants out of
hours and ex parte at very short notice. There has been no call
by practitioners here for staff of the Agency to be authorised
to issue warrants.
I understand that the provision is rarely used
by the Criminal Assets Bureau; there have only been six warrants
issued by senior officers in the past six years. The provision
was introduced because there are parts of Ireland where no judges
would be immediately available to issue an urgent warrant. We
do not believe this will cause any difficulty in the United Kingdom.
With regard to your concerns on this issue,
I should stress first that in civil recovery cases initiated by
the Agency under Part 5 of the Bill, as in civil forfeiture cases
pursued by the Criminal Assets Bureau, no conviction is necessary;
indeed the Agency will only pursue civil recovery where there
is no prospect of criminal proceedings. The issue in civil recovery
is whether particular property is the proceeds of unlawful conduct,
or represents the proceeds of unlawful conduct.
The concept of a criminal lifestyle, by contrast,
is being introduced for the purposes of the confiscation scheme
(Parts 2,3 and 4 of the Bill). These Parts enable the courts to
impose confiscation orders following a criminal conviction. The
legislation envisages a two track confiscation scheme. Normally,
the court will make a confiscation order equivalent only to the
benefit the defendant derived from the particular offence of which
he has been convicted.
However, where the defendant is identified on
conviction as having a criminal lifestyle, more far reaching powers
of confiscation will be deployed. The court will assume unless
he can show otherwise that property held since conviction or acquired
during the six years preceding the commencement of the criminal
proceedings, and expenditure incurred by him or her during the
same period, represented his benefit from general criminal conduct
and will make a confiscation order accordingly (subject to the
defendant's available assets).
A defendant will be found to have a criminal
lifestyle if he satisfies any one of a number of conditions. Previous
convictions are only relevant to one of those conditions. Defendants
convicted in the current proceedings of an acquisitive offence
of any description will be treated as having a criminal lifestyle
if they have been convicted of an acquisitive offence of any description
on two separate occasions in the last six years. The alternative
triggers are that the defendant is convicted of a drug trafficking
offence, or a money laundering offence, or an offence specified
in regulations made by the Secretary of State (I made a provisional
list available to the Standing Committee) or an offence committed
over a period of six months or more. In none of those cases will
previous convictions be necessary.
11 March 2002