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Standing Committee B
Thursday 10 January 2002
[Mr. John McWilliam in the Chair]
Release of detained cash
Amendment proposed [this day]: No. 458, in page 171, line 25 after 'seized', insert
'or by a person claiming ownership of the cash and without objection from the person from whom the cash was seized'.—[Mr. Grieve.]
Question again proposed, That the amendment be made.
The Chairman: I wish hon. Members a happy new year, and remind the Committee that with amendment No. 458 we are taking the following: Government amendments Nos. 331 and 333.
Amendment No.419, in page 172, line 17, leave out 'other than' and insert 'including'.
Amendment No. 461, in page 172, line 35, after 'cash', insert
'or any person claiming that any cash detained under section 294 belongs to him'.
Government amendment No. 336.
Government new clause 9—Victims.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): It is good to see you, Mr. McWilliam. I see that you get all the best shifts—Thursday afternoons when there is a one-line Whip. I am sure that you are as pleased about that as we are.
The Chairman: Order. One of the responsibilities of being the senior Chairman on a Standing Committee is to take the rotten shifts.
Mr. Ian Davidson (Glasgow, Pollok): With the rotten Ministers.
The Chairman: Order. Sedentary interventions are to be deplored at all times.
Mr. Ainsworth: You can see, Mr. McWilliam, from the way that I have managed to garner support from my own Back Benches that we follow a long and weary route on this Bill.
When we broke for lunch we were talking about amendments grouped with amendment No. 458. I indicated a preparedness to examine the situation with regard to amendment No. 458 about the position of a claimed owner's ability to apply for the release of cash or to become a party to the proceedings in the light of arguments put forward. I suggested that if I found a case for that, having listened to the arguments, I would table an amendment on Report. I said that I was not prepared to accept amendment No. 461.
On amendment No. 419, I said that it was our intention to allow a person from whom cash was
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seized to be a party to the proceedings and to be guaranteed an opportunity to make representations at a forfeiture hearing. That would be achieved by rules of court that apply under section 53(2) of the Magistrates' Court Act 1980, which provides that the court—after hearing the evidence—and the party shall make the order for which the complaint is made or dismiss the complaint. The rules of court will provide that an application for forfeiture is to be regulated in the same manner as a complaint. The amendment is, therefore, unnecessary.
The person from whom the cash was seized will additionally have the right to apply for the release of detained cash at any time. If he can establish that it is neither recoverable property nor intended for use by any person in unlawful conduct, the court or sheriff may order the release of the cash. In the light of that assurance, I hope that the hon. Gentleman will withdraw the amendment.
As for the Government amendments, new clause 9 replaces in an extended form the protection afforded by subsections (4) and (5) of clause 297 for victims of unlawful conduct who claim entitlement to cash where forfeiture is being sought by a constable or customs officer. It applies to persons who claim that some or all of the cash seized under clause 293 rightfully belongs to them and they were deprived of it, albeit through unlawful conduct. Cash may be released to the victim even when criminal proceedings with which the cash is connected will be commenced and have not been concluded. It will be for the court to decide whether that would be appropriate.
New clause 9 follows the same policy as the provisions in paragraph 9 of schedule 1 of the Anti-terrorism, Crime and Security Act 2001, in relation to cash that is suspected of being linked to terrorism. It does not enable the release of cash that is retained under any other legislation, for instance under section 22 of the Police and Criminal Evidence Act 1984, or any other part of this Bill, for instance under a restraint order in part 2.
Amendments Nos. 331, 333 and 336 are consequential amendments.
Mr. Dominic Grieve (Beaconsfield): I am grateful to the Minister for his comments on my amendments. We were right to focus on amendment No. 458, and I am particularly pleased that it appears that the Minister has provided an assurance that he will consider the issue that that amendment raises. I am also grateful to the Minister for saying that the amendment was carefully worded. I gave it a lot of thought, because I was aware that there was a potential problem and I could see why the rights of potential owners were not explicitly stated in the clause.
The amendment refers to a matter that should be examined. Given the Minister's assurance and his remarks on the other two amendments, on the questions and on the rules of court, I am content to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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Mr. Ainsworth: I beg to move amendment No. 330, in page 171, line 25, leave out from second 'the' to end of line 27 and insert
'conditions in section 294 for the detention of the cash are no longer met in relation to the cash to be released'.
Clause 296 deals with the release of detained cash. It sets out conditions under which the court may release cash, on application by the person from whom it was seized. The effect of the amendment is to apply the same test for the release hearing as is used in applications for continued detention under clause 294.
The tests that the court applies to detention and release applications should be the same, as the issue is the same: namely, should the cash continue to be detained? The only material difference between detention and release applications is that, under the latter, the burden of proof rests on the person from whom the cash was seized, rather than on the seizing officer.
The amendment makes it slightly easier for an applicant to secure the release of the cash. Instead of satisfying the court that the cash is not recoverable property, or that it was not intended for use in unlawful conduct, he need only satisfy it that the set of conditions in clause 294 for detention is no longer fully met. Those conditions are that there are reasonable grounds for suspecting that the cash is derived from, or intended for use in, unlawful conduct and that its detention is justified pending further investigation, or that it is connected with an offence for which criminal proceedings are being considered or are under way.
The amendment follows the approach taken at paragraph 5 of schedule 1 of the Anti-terrorism, Crime and Security Act 2001, with regard to persons challenging the detention of cash that is suspected of being linked to terrorism.
Mr. Nick Hawkins (Surrey Heath): I agree with the Government that the amendment is sensible, and my party is happy to go agree to it. I ought to add that the Government's decision to amend the earlier part of clause 296 in this amendment also helps the argument that I am about to advance for my party's amendment, which is listed next. However, I will not anticipate that debate.
Amendment agreed to.
Amendment made: No. 331, in page 171, line 33, leave out from 'forfeiture' to 'until' and insert
'under section 297, or for its release under section [Victims], is made'.—[Mr. Bob Ainsworth.]
Mr. Hawkins: I beg to move amendment No. 418, in page 171, line 36, leave out paragraph (b).
As I said, we argue that the amendment goes in the same direction as Government amendment No. 330. We felt that clause 296 as originally drafted went too wide. Working along the same lines as the Government have in amendment No. 330, we suggest that it would be helpful to delete paragraph (b) of subsection (5).
Subsection (5) states that cash is not to be released if in the United Kingdom or elsewhere
''proceedings are started against any person for an offence''
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—which means any offence—
''with which the cash is connected, until the proceedings are concluded.''
That seems to us to be an extremely wide exclusion. We understand why subsection (5)(a) should be included. There is clearly a good reason for it. However, we are reinforced in our belief that paragraph (b) takes the matter too wide. Once again the Law Society of Scotland takes the same view as my hon. Friends and I and has suggested the amendment to delete paragraph (b). I shall listen with interest to the Minister's comments, but I feel bolstered not only by the Law Society of Scotland but by the fact that the Government, on further reflection, had already decided that the clause as originally drafted was too draconian, as the Minister said in moving the previous amendment.
Mr. Ainsworth: The hon. Gentleman shall be deprived of the opportunity of listening with interest to my comments. We should thank the Law Society of Scotland for its amendment, and we should thank him for having moved it and for his assistance in improving the Bill. We accept the amendment and urge our hon. Friends to support it.
Mr. Hawkins: I am delighted. We have already had the Grieve amendment; perhaps I can claim that this one should be called the Hawkins amendment.
Mr. Mark Field (Cities of London and Westminster): Or possibly the MacHawkins amendment.
Amendment agreed to.
Amendment made: No. 332, in page 171, line 39, leave out subsection (6).—[Mr. Bob Ainsworth.]
Clause 296, as amended, ordered to stand part of the Bill.
Amendment made: No. 333, page 172, line 16, leave out subsections (4) and (5).—[Mr. Bob Ainsworth.]