Clause
24
Additional
right of appeal from High
Court
Mr.
Hogg:
I beg to move amendment No. 127, in
clause 24, page 15, line 9, at
end insert—
‘(1A) An appeal
against a decision of the High Court in relation to a serious crime
prevention order may be made to the Court of Appeal
by—
(a) the person who
is the subject of the
order;
(b) the relevant
applicant authority; or
(c) by
any person who was given an opportunity to make representations in the
proceedings concerned by virtue of section 10(1), (2) or (as the case
may be)
(3).’.
When
I drafted the amendment I had not read section 16 of the Senior Courts
Act 1981, and I still have not done so; I was under some pressure to
prepare my amendments as fast as I could. I hope that the Committee
will accept the general proposition that every person who is affected
by a serious crime prevention order should have the right of appeal.
Subject to the terms of section 16 of the Senior Courts Act 1981, the
Bill does not make provision for the person who is the subject of the
order to appeal. If the Minister can tell me that that provision gives
the person who is subject to a serious crime prevention order the right
of appeal, I need not speak any further to this amendment. If he wants
to intervene, I shall give way.
Mr.
Coaker:
It is my understanding that the amendment is
unnecessary for the reasons that the right hon. and learned Gentleman
gives.
Mr.
Hogg:
If that is right, I shall withdraw the amendment and
if it is not, we will have to come back to the matter on Report. Would
the Minister be good enough to write to me to confirm what he has said?
I shall go and look at section 16.
Mr.
Coaker:
Perhaps it will be unnecessary for me to write to
the hon. and learned Gentleman and helpful to the Committee if I read
my statement into the record.
I fully appreciate the hon. and
learned Gentleman’s intention in tabling the amendment. Like
him, I have been very concerned to ensure that the Bill provides the
appropriate rights of appeal. However, I hope that I can reassure the
Committee that the rights are already provided for in other legislation
and that the amendment is unnecessary.
Clause 24 provides a right of
appeal for third parties. Without the clause, they would not have such
a right. The appeal rights of the applicant authority and the subject
of the order, as parties to the original proceedings, are already
provided for in the Senior Courts Act 1981, or the Supreme Court Act
1981 as it is currently known. Therefore, I hope that the right hon.
and learned Gentleman feels reassured enough to withdraw his amendment
because its effect is already provided
for.
Mr.
Hogg:
I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
24 ordered to stand part of the
Bill.
Clause 25
ordered to stand part of the
Bill.
Clause
26
Offence
of failing to comply with
order
Question
proposed, That the clause stand part of the
Bill.
James
Brokenshire:
The clause relates to enforcement and
offences of failing to comply with a serious crime prevention order. It
states:
“(1) A
person who, without reasonable excuse, fails to comply with a serious
crime prevention order commits an offence.”
Subsection (1) refers to a person.
However, when we look at the subsequent provisions contained in, for
example, clause 28, it is clear that a company, as a legal person, may
be subject to a serious crime prevention order, hence the subsequent
provisions relating to winding up, which the Minister will discuss in
relation to the debate on that clause. Is the Minister clear that in
terms of the breach of the order, the person is the corporate entity?
Are officers and directors of a company implicitly subject to that
order or is there a need for a separate and specific serious crime
prevention order to apply to those individuals as opposed to the order
applying to the legal person—in other words the
company?
Mr.
Coaker:
Such is the detail of that question, I may
need to reflect on it and come back at a later point in another
clause.
Clause 26
ordered to stand part of the
Bill.
Clause
27
Powers
of forfeiture in respect of
offence
Mr.
Hogg:
I beg to move amendment No.
128.
This may be quite
an important amendment. It is an amendment to the forfeiture powers
contained in the clause. I draw two specific facts to the attention of
the Committee. Subsection (2) makes it plain that an order can have an
effect in respect to a property in which a third party has an interest.
When one approaches the clause, one assumes that the only person who
has an interest in the property which is capable of being forfeited is
the person who has committed the
substantive offence under clause 26. Clearly and inevitably, one must
recognise that other people may have an interest. They may be partial
owners or have an equitable interest and so on. They may be a hire
purchase company, for example. Therefore, third parties can have an
interest in property which is the subject of the forfeiture
order. Subsection (5)
states that the forfeited property can be destroyed, and that is a
pretty permanent outcome. Therefore, a property that is subject of a
third party claim can be destroyed under the forfeiture order. That is
the background, which is quite serious. One looks at the forfeiture
powers in the clause to see if one can find any guidance over the
approach that the courts will adopt. I have heard the Minister many
times say, “Don’t worry, Mr. Hogg, it is all
in the convention.” I have in front of me the Human Rights Act
1998 and, in particular, the convention. I suspect that the Minister
will say it is covered by article 1 of the first protocol, which
provides that
“every
natural legal person is entitled to the peaceful enjoyment of his
possessions.”
So far, so
good. It goes on to
say:
“No one
shall be deprived of his possessions except in the public interest and
subject to the conditions provided for by law and by the general
principles of international
law.”
That is motherhood
and apple pie. The article continues:
“The preceding provisions shall
not, however, in any way impair the right of a State to enforce such
laws as it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or other
contributions or
penalties.”
12.45
pm
That is pretty
general stuff. If I were a person whose interest in property would be
affected by a forfeiture order, I would not draw much comfort from the
article; I would have some difficulty in spelling out the approach that
the court would adopt. We are saying of and to the courts, “You
are going to be the legislators, because by your interpretation of this
article, you are going to provide the safeguards that Parliament has
not provided.”
That is deeply offensive; it is
the business of Parliament to spell out in legislation the criteria
that the court should adopt in the context of such matters. In any
event, such protection as is afforded in article 1 and elsewhere in the
convention is so much in the hands of the court that it leads me to
think that, unless we put the provisions that I contemplate in the
amendment into the Bill, we are neither providing proper protection nor
doing our duty.
I am
perfectly willing for the Minister to say that the language of the
amendment is defective. So it may be, and we can talk about that, but
the concept of “just, necessary and proportionate” should
appear in the Bill.
Mr.
Coaker:
I point out to the right hon. and learned
Gentleman that subsection (2) gives people with an interest in property
the right to make representations to the court, which will consider
whether forfeiture is reasonable and proportionate. We have included
that proposal to ensure that it is reasonable.
The right hon. and learned
Gentleman has done me a great service: he has saved me having to read
out article 1. Without wishing to be sarcastic or flippant, there is a
debate to be had on the interpretation of these articles and their
application. On the protection of property, article 1 says that where
it is in the public interest, consistent with the law of the country,
just, and done appropriately through the courts, forfeiture of property
is not inconsistent with compliance with human rights
legislation.
The
right hon. and learned Gentleman may say that it is not appropriate in
these circumstances, or that he does not agree with it, but that does
not make it any the less a fact that it is included in the protocol,
for the very reasons that we are discussing: when the state wishes to
pursue a particular line in order to prevent crime or to prevent people
from benefiting from crime, they can clearly use that part of the
protocol.
The
amendment is unnecessary, and I shall try not to reiterate earlier
points in explaining my reasons for rejecting it. The clause is a way
of ensuring that those involved in serious crime do not seek to flout
its provisions. As well as the offender risking imprisonment for breach
of an order, it will be open to the court to order the forfeiture of
anything in the offender’s possession at the time of the
offence, and that it considers to have been involved in that
offence.
For example,
when someone has been found guilty of an offence relating to the
distribution of child abuse material via the internet, it might be
reasonable to place an order that forbids them from owning a personal
computer. That would force them to use public access computers, from
which they could not disseminate such material, if they needed access
to the internet. If they were then found, in contravention of the
order’s terms, to own a personal computer, it is reasonable that
it should be forfeited. That is the purpose of the
clause.
The amendment
is unnecessary, because we do not need—as I have said on a
number of occasions—to tell the High Court to act justly and
proportionately in operating this provision, as it will do so whether
we tell it to or not. For that reason, I resist this amendment and hope
that the right hon. and learned Gentleman will ask leave to withdraw
it.
James
Brokenshire:
The Minister mentioned the seizure of
computers in the context of, say, a child pornography case. I want to
be clear about something. Is he saying that, if an offence is committed
and the court rules that an order is made, there is not a right of
forfeiture in law under other legislation and, therefore, there is a
need to make a serious crime prevention order? Alternatively, would
other provisions in other statutes apply to enable that forfeiture to
operate? It is important that we are clear about whether he is saying
that an SCPO would be required to cover the facts that he has
given.
Mr.
Coaker:
This is an additional way of ensuring that crime
is prevented. With those explanations, I hope, as I said, that the
right hon. and learned Gentleman will ask leave to withdraw the
amendment.
Mr.
Hogg:
No, I will not. Although the Minister has been
gracious in his reply, I disagree with him. He is right in saying that
clause 27(2) enables third parties to make representations, but there
is no guidance at all in the Bill about the criteria that the court
should address when listening to those representations. The Minister
will say, “Well, then you go to the convention.” That is
so. I shall not read from the convention again, though, because I have
done so once.
There is
nothing in article 1 of the first protocol that says anything about
justice and proportionality. Whether or not the courts will apply a
test of justice and proportionality will apply, first, in accordance
with their determination as to whether any article applies and,
secondly, in accordance with their construction of what is justice and
proportionality in the context of the intended objectives of the
legislation and the protection afforded by the article. The Minister
may or may not be right in saying that the courts, on a forfeiture
application, would construe justice, necessity and proportionality as
necessary criteria. In any event, these are sliding scales that reflect
the gravity of the particular facts of the
case.
I urge the
Committee as robustly as I can to consider a further point. Time and
again, the Minister has said, “Don’t worry, the
convention will always apply.” The truth is that it will not
always apply; it will sometimes apply. If the Minister says,
“Right, then Parliament never need incorporate into the Bill the
protecting clauses that historically we have always thought
necessary—not even in criminal cases”, one might as well
remove the words “knowingly and intentionally”, which are
often found in criminal legislation, because the Minister will say,
“Oh, don’t worry, articles 6.1 and 6.2 will
apply.” However, this is not the way
forward.
The courts
are a necessary safeguard, but they do not relieve us of our
obligation. We should be in the business of spelling out in legislation
what we deem to be the necessary criteria and protections, and we
should not rely on general language in the articles that may or may
not, depending on the circumstances, apply in a particular case. This
is not the way forward. We have a duty and we are not performing it.
For that reason, I will not beg to ask leave to withdraw the
amendment.
Question
put, That the amendment be
made:—
The
Committee divided: Ayes 5, Noes
7.
Division
No.
19
]
Question
accordingly negatived.
Clause 27 ordered to stand
part of the Bill.
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