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Stephen Hesford (Wirral, West): Will my hon. Friend give way?
Mr. Ainsworth: My hon. Friend may be able to help me.
Stephen Hesford: It is possible—anything is possible.
I am listening to the Minister with interest. If we help a foreign jurisdiction collect evidence, and we send the evidence to that jurisdiction under these procedures, is there any duty on it to look after the evidence and treat it properly? My hon. Friend has just made the reasonable point that if we started an investigation, we could request the evidence back. However, if the evidence has been destroyed, lost or mishandled, we will not be able to get it back. Is there at least an expectation or duty to look after the evidence?
Mr. Ainsworth: I do not believe that any duty is imposed by the treaties, but there are, obviously, procedures and requirements within each jurisdiction for maintaining and keeping records, and for looking after evidence that is being used in a court case. They might differ from ours; they might not be as extensive as ours and we might not be able to help with subsequent requests for return of evidence that has been supplied to us. I accept my hon. Friend's point, but the only way round that would be for us to keep copies of every single thing that we send in every case and to be prepared to retain them for long enough to cover all eventualities.
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Mr. Heath: First, I thank the Minister for agreeing to consider my earlier point. I am not trying to be a barrack-room lawyer or to pose difficulties, but I wonder whether police really have the power to make copies and to retain material that they have seized under warrant for the specific purposes of an offence under another jurisdiction, which does not relate to investigation of an offence under British jurisdiction and is not clearly of value in investigative or judicial procedures. Might they not fall foul of data protection legislation in such circumstances? I do not know the answer, and I am not trying to be clever, I just wonder whether that is an issue.
Mr. Ainsworth: The hon. Gentleman might not be trying to be clever, but he seems to want to have his cake and eat it. Let us keep everything by statute—
Mr. Heath: By statute, that is the point.
Mr. Ainsworth: Absolutely. I am told that the police can keep information gathered in response to a request from a foreign jurisdiction if they believe that it is appropriate to do so. If the situation is different, I shall clarify it.
Mr. Paice: I am grateful to hon. Members who have participated in the debate and to the Minister for his reply. The issue of making and retaining copies or replicas seems, by common consent, to be the most significant. I understand what the Minister says, but I am not convinced about the ability to do so, if it exists, and I share the doubts of some hon. Members about whether there are constraints in the way of the police. I seem to recall that the copying of some evidence is not permitted, but I might be wrong. It is a big issue.
The Minister seems to be saying that if I had used the word ''may'' instead of ''shall'' make and retain a copy, he would have said that it is not necessary because they already can. He seems to be taking issue with the obligation represented by the word ''shall''. I recognise that that might be seen as sometimes onerous. However, as I said in my opening remarks, one cannot always predict events. It is all very well saying to the police that they can if they want to, but they might not know what is coming either. As the hon. Member for Wirral, West (Stephen Hesford) said earlier, one cannot be certain that one will get the material back, whatever the intention might be. I hope that the Minister will revisit the issue. It is important, and we shall want to return to it.
Of the earlier amendments, amendment No. 35 concerns the time scale. The hon. Member for Somerton and Frome read into it that I was working in an opposite direction to his. I was merely leaving the Secretary of State with the flexibility to set minima and maxima. I am reluctant to admit it, but I am probably persuaded by the Minister's argument that there are so many variables that the object would be difficult to achieve, so we shall pass on that.
On the question whether the officer has personal knowledge, I do not see why that should not be in the Bill if it is current practice and if it is described in the explanatory notes. Nevertheless, I recognise the Minister's argument, especially when he referred to
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the team being a discrete team, not a loose association. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 ordered to stand part of the Bill.
Clause 17 ordered to stand part of the Bill.
Clause 18
Warrants in Scotland
Amendment made: No. 87, in
clause 18, page 11, line 20, after 'constable', insert 'or customs officer'.—[Mr. Ainsworth.]
Clause 18, as amended, ordered to stand part of the Bill.
Clause 19
Seized evidence
Question proposed, That the clause stand part of the Bill.
Mr. Hawkins: I know that the hon. Member for Somerton and Frome has already said that he wants to raise a point about the clause, but I want to ask the Minister a one-sentence question. The clause states:
''where the evidence consists of a document, the original or a copy is to be sent''.
The Minister will recall that some very important terrorist cases in the Irish Republic collapsed because the prosecuting authorities in this country did not manage to send the right documents: they sent copies when they should have sent originals. I am not making a politically partisan point, because that has happened under Governments of both parties.
Will the Minister reassure the Committee for the record that we will not have any problems with other countries, especially the Irish Republic, by inserting into our law a clause that states that where the evidence consists of a document, the original or a copy is to be sent? I hope that the Minister understands the serious point that I am trying to make. I am trying to be helpful, and I want to ensure that the Minister and his officials can reconsider the subsection if they need to ascertain whether they need to insert a subsection that says, in effect, ''But we know that we always need to send an original if the other court requires it'', or something along those lines.
Mr. Heath: I want to pursue an issue that I attempted to raise earlier. I am trying to ensure that subsection (3) does not introduce any difficulty. An international joint investigation team may investigate offences in this country or under another jurisdiction. There is no problem if, for the purposes of its investigation, the team seeks a search warrant and seizes material that is to be used in proceedings in this country. If it seizes material to be used under another jurisdiction, would the court in that jurisdiction have to make a new request to enable the material collected by the joint investigation team to be transmitted to that court? In what circumstances could the team use evidence in an investigation into a matter that was already the subject of proceedings under another jurisdiction? Will the disclaimer in subsection (3) prove to be an obstacle to using what common sense
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dictates: that once a team has a search warrant, and goes in and finds the evidence, it should be able to use it in the proceedings for which it was gathered? I do not know the answer, but the subsection appears to introduce an unnecessary obstacle. I do, of course, understand that the joint investigation team would be the requesting authority in an investigation alone. I am simply trying to ensure that the evidence is available for proceedings subsequent to that investigation.
Mr. Ainsworth: I shall deal first with the point made by the hon. Member for Surrey Heath. The hon. Gentleman is right that there have been problems. Mutual legal assistance between two countries will never be a foolproof procedure. Domestic law differs. The key is the framing of the request and ensuring that the requested material will be in a form that the jurisdiction seeking to bring the case before the court can use. The hon. Gentleman is right that problems could arise if the request for information is not framed in that form. That is why we are obliged to respond to requests in a particular way. The only get-out is if there is some fundamental legal reason why it is not possible to respond to those requests. The hon. Gentleman raises an issue that will always be a potential difficulty if people do not frame requests correctly.
I gave the hon. Gentleman an answer in response to his question about joint investigation teams, but he now chases the argument one stage further back. The reason for the subsection is that the joint investigation team would have been originator of the request, which he accepts. The team would have been set up to undertake a specific operation with a view to bringing a prosecution. I do not want to respond off the top of my head to the question about the flexibility given to the joint investigation team at that stage to pass on information that comes its way that might be peripheral to the original reason for its establishment. The hon. Gentleman makes a good point in trying to check whether we are imposing inappropriate restrictions on passing on information that may come to hand. I shall try to ascertain what the procedures are for going wider than the original intent of the joint investigation team in passing on the information. There may be restrictions that are appropriate.
Mr. Heath: I am grateful to the Minister for considering the issue. His response addresses part of it, but the core intent of the investigation also bothers me. The member of the investigating team can secure evidence for the purposes of investigating the specific crime to which it relates. As I read it, however, there must be a second request to pass that evidence to a court under another jurisdiction so that proceedings can take place. What bothers me is the introduction of a two-stage process where a one-stage process would suffice. I may be misreading the clause, but that is how I interpret it.
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