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Mr. Heath: The hon. Gentleman is right to probe the reason why the judicial authority in this instance can be a justice of the peace, because we are talking about an intrusive procedure. It goes beyond a basic warrant, which is the usual ceiling for requests outwith the judicial authority, and in other circumstances only those above a magistrate, such as a circuit judge,
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would become involved. I would be grateful if the Minister made her position known to us.
There is a time lag or at least an inconsistency in judicial nomenclature between the Home Department and the Department that used to be called the Lord Chancellor's Department. For instance, Northern Ireland has both resident and lay magistrates. The latter are the equivalent of the justices of the peace in England and Wales, and yet they are not to have the power to make the request. That does not seem entirely logical. It would have been logical before the Justice (Northern Ireland) Act 2002, but there is now the creation of the lay magistrates, although they do not yet exist.
The Chairman: Order. I am sure that the hon. Gentleman would like to redirect himself back into order by addressing the amendment.
Mr. Heath: Yes. I was exploring the meaning of the term ''justice of the peace'' in the context of the clause, Mr. Hurst, and how that term is understood in the various jurisdictions of the United Kingdom. I hope that I kept myself in order, but because there is a serious danger of straying beyond the terms of the amendment, I shall sit down and listen to what the Minister has to say.
11 am
Caroline Flint: The effect of the amendment would be that outgoing requests for account monitoring orders could not be dealt with in the magistrates court. We do not accept the amendment. The Government have made the point under other clauses that, in general, we consider the magistrates court entirely capable of considering and dealing with requests for mutual legal assistance, both incoming and outgoing. Magistrates courts have many years of experience in mutual legal assistance, and we have not heard any strong arguments for changing this practice.
There is no need to restrict outgoing requests to monitor accounts to higher courts; such requests are just another, albeit specialised, type of mutual legal assistance request. Magistrates courts can deal with outgoing requests under clause 7 and, in the interests of consistency, the same approach should be adopted here. Furthermore, it is entirely possible—and likely—that a request for monitoring will involve a request for other types of mutual legal assistance, such as the provision of historical information about the account. Those types of request are not new. The same court should be able to deal with all aspects of the request.
It should be noted that the majority of requests under the clause will be issued by designated prosecuting authorities themselves—that is, the Crown Prosecution Service, Her Majesty's Customs and Excise and the Serious Fraud Office.
The position in Scotland and Northern Ireland reflects normal existing mutual legal assistance arrangements. The magistrates court will act on behalf of prosecuting authorities, such as the Financial Services Authority, that cannot issue their own requests at present as they are not designated. We
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will consult further, particularly on the question of Northern Ireland. The Court Service and the Northern Ireland Office have been consulted.
Mr. Hawkins: I hear what the Minister says. I am grateful to the hon. Member for Somerton and Frome; he and I were involved earlier this week in a fascinating debate on a statutory instrument that dealt with what used to be called the Lord Chancellor's Department. The new Minister there got into terrible trouble with the hon. Member for Thurrock (Andrew Mackinlay) on the issue of lay magistrates in Northern Ireland. The hon. Member for Somerton and Frome and I were particularly conscious of his point—however, I must keep within order, too.
I hope that the Minister will realise that we are making a serious point. There is, of course, a judgment call to be made; the Government have come down on one side of the line and the hon. Member for Somerton and Frome and I are on the other. However, at this stage, I shall not pursue the matter further. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 44 ordered to stand part of the Bill.
Clause 45 ordered to stand part of the Bill.
Clause 46
Interpretation of Chapter 4
Mr. Hawkins: I beg to move amendment No. 100, in
Our amendment would replace reference to the protocol with a provision saying that ''serious criminal conduct'' was any offence carrying a sentence of 10 years or more. The Minister will be aware that the issue was debated in another place on 27 January. That debate is in column GC 144 and thereafter in Hansard in another place. My noble Friend Viscount Bridgeman made it clear that he was probing the issue, and we do the same again today. It would be helpful to know which other countries follow the guidelines in the protocol. Have the guidelines been amended? Could they be? Would it be helpful to have those guidelines listed in the Bill for the sake of clarity?
At the moment, ''serious criminal conduct'' is simply defined as an offence under the 2001 protocol or as
''an offence specified in an order made by the Secretary of State''.
We do not think that that is sufficient. The amendment would put in
''an offence which requires a prison term of 10 years or more''.
We might have chosen ''five years or more''. There was some discussion in another place about whether 10 years was the right level. There were some offences that ought to have been included but would not fall into that category. We wanted to probe the matter further, because we did not think that it got a tremendously thorough answer from Lord Filkin, who spoke for the Government. I hope that the Minister will respond to that.
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Amendment No. 143, which was tabled by the hon. Member for Somerton and Frome, seeks to delete paragraph (b).
The Chairman: It is in the next group.
Mr. Hawkins: I am sorry. I am working from a slightly out of date selection list.
Stephen Hesford: Does the hon. Gentleman accept that the wording of his amendment is rather strange? It reads
''an offence which requires a prison term of 10 years or more'',
which means that someone would have to get 10 years or more. It does not say, ''An offence punishable by 10 years or more'', which would be the more general way of putting it. Even if there were some substance in what he was saying, does not his wording make it more difficult for the Committee to accede to the amendment?
Mr. Hawkins: I understand the hon. Gentleman's point. The wording of our amendment in another place was
''an offence which carries a prison term of 10 years or more''.—[Official Report, 27 January 2003; Vol. 643, c. GC 144.]
Perhaps that form of words would have been better. I have said that I want to probe the matter. The hon. Gentleman understands that and I am sure that the Minister does, too. We do not suggest that the wording of the amendment is perfect. There is, however, a serious point, which is to probe whether we should have the offences set out in the Bill. I hope that the Minister will understand why we wanted to probe that matter.
I shall say no more, and listen with interest to the Minister's response.
Caroline Flint: Clause 46, as drafted, defines serious criminal conduct in terms of offences listed in article 1(3) of the protocol. I stress that there are no guidelines. In fact, there is an obligation. That is the same for all states. The relevant offences are those punishable by a four-year custodial penalty in the requesting state and two years in the requested state, or offences referred to in the Europol convention or the convention on the protection of the European communities' financial interests. Article 1(3) sets out the circumstances in which member states are expected to assist. All member states are therefore bound by the same rules in this respect, and they are under the same requirement to assist in relation to the same kinds of crime.
As I explained in previous groups of amendments, we considered that it was simpler to include a definition covering all of the circumstances than to list them all repeatedly in chapter 4. For us to set a different threshold would place the UK in breach of the protocol, which would mean that we would not be considered to have implemented it. Thus we would be going against our international obligations. If we did that, we could not expect other countries to comply with any requests for assistance that we made under the provisions of the protocol. As I have previously stressed, the protocol is an essential tool in the fight against international crime and will bring considerable benefits to our own investigations and prosecutions.
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A crime with a maximum sentence of 10 years is undoubtedly serious, but there are other serious offences that would not meet the test, for which we might wish to be able to offer, or seek, that kind of assistance. Customer information orders will be helpful in tracing and locating criminals and terrorist groups. For example, under the Child Abduction Act 1984, child abduction—taking a child out of the UK without consent—attracts a maximum sentence of seven years. Banking information might be of assistance in locating a suspect. Some offences—for example, possession of a dangerous article on an aircraft, including explosives such as bombs, grenades and firearms—are classified as terrorist offences and attract a maximum sentence of five years. Under the Computer Misuse Act 1990, the unauthorised modification of computers and their unauthorised access with intent both attract maximum sentences of five years. That is one example of crime without borders that could be the subject of an international investigation.
The amendment would also rule out seeking or providing assistance in investigations into benefits from crime in cases in which the minimum sentence is less than 10 years. Many other offences in that category might give rise to such an investigation. I hope that that reassures the hon. Gentleman and clarifies the situation. I ask him to withdraw the amendment.
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