Proceeds of Crime Bill

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Mr. Carmichael: I take the point about the hierarchy. However, by virtue of the power in clause 293, the hierarchy has become confused. That is my concern. Mrs. Keenan, to whom reference has been made, is a former procurator fiscal.

Mr. Ainsworth: I have responded to the point that has been made. I am sure that the hon. Member for Orkney and Shetland will have further discussions, and if those who follow our proceedings want to make further points, they will do so, and we shall take them

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into account. Given my explanation, I hope that the hon. Member for Surrey Heath will withdraw the amendment, although he may wish to take further soundings, and we may return to the issue.

Ian Lucas: I am somewhat puzzled as to why the director of the Assets Recovery Agency is not involved in this matter. It seems to me that he would be the obvious person to make the application, if it is necessary for an application to be made other than by a constable. Will the Minister explain that? Alternatively, will he consider the matter further?

Mr. Grieve: The hon. Gentleman has pre-empted the point that I was about to make. This is an interesting issue, which has developed as a result of our discussion about Scotland.

Clearly, when there are forfeiture proceedings, the thrust of the Bill is that the director of the Assets Recovery Agency has control. However, when one considers clause 297, as we shall do in a moment, the constable appears to be the initiator of those proceedings. Indeed, that runs through the procedure that we have considered under clauses 293 and 294. That may not matter, but one would expect the director of the Assets Recovery Agency to make those decisions. If he is making all the central decisions on civil forfeiture throughout the Bill, why is this a discrete area that is left to the police to determine? That raises an interesting issue, and I cannot help wondering whether it is because of the derivation of the Bill and its predecessors, and because the issue has not been focused on. As the Minister is aware, the Bill sets up an administrative law system, with an administrative officer—the director of the Assets Recovery Agency—who is supposed to be managing it. In this case, however, as the hon. Member for Wrexham (Ian Lucas) rightly says, a police constable will make the choices and decisions on the application.

Mr. Ainsworth: The issue raised by the hon. Gentleman and my hon. Friend the Member for Wrexham does not impact on Scotland, because the director has no powers there. The point raised is a more fundamental one about the operation of the Bill. The hon. Gentleman is right that the Bill is derived from the existing provision, which is also successful in the border situation. It is worth reflecting that the director is not exclusively involved in part 2, but he can become involved; where it is felt appropriate, he can assist in complicated cases of criminal confiscation. With regard to the matters addressed in chapter 2 of part 5, the director is in charge, because that chapter deals with civil recovery in the High Court and the Court of Session, and it addresses investigative cases against people for the civil recovery of the proceeds of crime.

We are discussing the seizure of cash, and instruments that can be considered to be cash. That has operated at the border for a long while, and frequently to good effect. The performance and innovation unit's report revealed that the same circumstances often arise inland. In such cases, constables or—where customs powers are involved—customs officers initiate and conduct the

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investigations, and get involved in the proceedings in the High Court or the magistrates court, because such cases deal with cash issues, so some of the complications that we have discussed at length with regard to property do not arise.

The hon. Gentleman has said that the director should never be excluded, but I do not understand that. The director will not be the initiator of such cases, and the overwhelming majority of them will not be very complex, so the police, or customs officers, will be capable of investigating them. There is no reason why the director should necessarily be involved. I hope that the hon. Gentleman can appreciate that point, as he raises an issue that might be worth examining when, instead, he asks, ''Why should the director not sometimes be involved?''

Mr. Grieve: The Minister has been helpful. When the legislation was drafted, it was decided to create a director of an Assets Recovery Agency, rather than to give such powers to the police. There were good reasons for taking that decision: one of them is that some of the aspects of the legislation are concerned with civil recovery proceedings, which the police would not usually deal with.

I take on board the Minister's point that a police constable will usually be the person who seizes the cash. However, as forfeiture is essentially a civil proceeding, one might have expected that decisions with regard to it would not be taken by the police—although I accept the Minister's statement that that has happened—but by the director of the Assets Recovery Agency, who is in charge of the totality of Government policy in relation to civil forfeiture of assets that are the proceeds of crime. There is a valid argument that forfeiture should be brought under that single umbrella. The Minister has hinted that that might be done by co-ordination, but that raises an anxiety in my mind—

The Chairman: Order. This is an intervention. We should be discussing the amendment, but we are straying from that subject.

Mr. Grieve: I apologise, Mr. O'Brien.

It raises an anxiety about functions being split.

Mr. Ainsworth: We are indeed straying considerably from that subject, Mr. O'Brien.

I wish to answer the points raised by the hon. Gentleman, and by my hon. Friend the Member for Wrexham. The hon. Gentleman's comments about the relationship between the concept of the legislation and the creation of the Assets Recovery Agency are incorrect. The concept of the legislation is broader than his remarks suggest. The legislation creates an Assets Recovery Agency to do specific things, but the intention is also to extend certain powers that exist in current legislation with regard to criminal confiscation, so that further categories of proceeds of crime are covered, and the powers apply inland. That group of powers has not been operated by constables, but mostly by customs officers, and I am told that they have civil powers as well as criminal powers. Therefore, there is no reason why it should not be extended to, and used by, them.

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Mr. Grieve: The Minister is right. In the past, I have done civil work for the Customs and Excise relating to that type of work. Customs and Excise has extensive powers that extend to civil as well as criminal jurisdiction. The police do not usually have such powers. That is why the involvement of the police constable in forfeiture proceedings causes me some anxiety.

10 am

Mr. Ainsworth: I think that I am happy with the way in which the measure is structured. In the overwhelming majority of cases, there is no practical necessity to involve the director in cash confiscation proceedings. The hon. Gentleman may reflect on that matter, which is valid, but it is not the subject of the amendment that we are discussing.

Mr. Boris Johnson (Henley): I am sorry to trouble the Minister. A sudden thought has flashed into my head that could save a great deal of money. Perhaps we have inadvertently stumbled across a brilliant way of economising. If it is possible for a constable not only to seize the cash but to hold on to it for two years, what is the purpose of the Assets Recovery Agency?

The Chairman: Order. We are moving away from the basis of the amendment. It appears that we have exhausted the debate—[Hon. Members: ''Hear, hear.'']

Mr. Ainsworth: The constable cannot seize cash and keep it for two years. He has the ability, when he has reasonable grounds, to seize cash and keep it for 48 hours. He must appear in front of a magistrate and justify the decision that he has taken. If he subsequently wishes to keep that cash, he must return to a magistrate every three months. The hon. Gentleman paints a caricature of the police powers. As you said, Mr. O'Brien, the issue has been exhausted. We should allow the hon. Member for Surrey Heath to consider whether he wishes to pursue the amendment.

Mr. Hawkins: When I moved the probing amendment—originally drafted by the Law Society of Scotland—I did not anticipate such an interesting debate. What has emerged from the Minister's very helpful response—particularly when he said that he might propose further Government amendments to address the point—is that the Law Society of Scotland was right to encourage us to table the amendment. To begin with, the hon. Members for Wellingborough (Mr. Stinchcombe) and for Wrexham were puzzled about the involvement of the Scottish Ministers.

Mr. Stinchcombe: I wanted to know why such an austere body as the Law Society of Scotland proposed the amendment. Unfortunately, the hon. Gentleman failed to give a reason.

Mr. Hawkins: My point was that the Law Society of Scotland was right to draw attention to the Scottish Ministers. Initially, that puzzled all of us, but it has been clarified by the Minister's helpful response. As I anticipated when moving the amendment, the Minister and his officials have been talking to the Law Society of Scotland, and have realised that there was an important issue. The hon. Member for Wellingborough has received his answer, not from

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me, but from his own Minister. That reflects the fact that the Minister can utilise the enormous resources of the civil service to explore those points more fully than Members on the Opposition Front Bench who are not Scots lawyers.

The importance of the relationship between Scottish Ministers and procurators fiscal, and the inherent dangers, was further expanded on by the hon. Member for Orkney and Shetland. The debate has been useful, and the object of probing has been achieved, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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