Mr.
Coaker: Of course I shall reflect on that. To be fair, the
Bar Council also said that it saw a case for what the Government were
doing. It did not oppose it in principle. What it was worried
about—again, this addresses the issue of necessity and
proportionality—was the creation of what it called a lower tier,
de facto restraint order. The Bar Council did not oppose the provision
in principle, however, but wanted to ensure, as the hon. Gentleman has
argued, that we act proportionately. I shall consider his points and
see whether there are further measures that we should take to meet some
of the
concerns. The
seizure power is exercisable only if the officer has reasonable grounds
for suspecting either that the property may, unless seized, not be
available for satisfying any confiscation order, or that the value of
the property may be diminished. That is covered in proposed new section
47C. Certain property is exempt property and may not be seized. The
search powers also require reasonable grounds for suspicion before they
can be
exercised. There
are further safeguards. For example, the value of property seized must
not exceed the value of the anticipated confiscation order. There is
judicial oversight of any seizure of property and there are rights for
the defendant and affected third parties to apply for variation or
discharge of the order. Furthermore, a code of practice will be issued
to provide further details on the exercise of the powers, with an
emphasis on the proportionality requirements. Although I am satisfied
that we have done all that we can to ensure that the powers are to be
used proportionately, I shall consider the hon. Gentleman’s
points. Let
me turn to the issues of prior approval and the appropriate level of
approval in the exercise of the search and seizure powers. The search
and seizure powers in clause 36 require the prior approval of a justice
of the peace or, where not practicable, of a “senior
officer”. If the powers are exercised without prior judicial
approval and seized property is released within 48 hours, or no
property is seized, the Bill imposes additional requirements on law
enforcement to explain in writing to the independent “appointed
person” why it was not practicable to obtain judicial approval.
The appointed person must publish a report every year on the exercise
of the powers in cases where officers are required to report to him.
The appointed person is a distinguished criminal barrister,
Mr. Andrew
Clark. Clause
36 also requires judicial approval of the detention of the property
within 48 hours of it being seized. All the new powers are modelled on
similar powers already in chapter 3 of part 5 of the 2002 Act as
regards searches for, and the seizure of, cash that is suspected of
being the proceeds of crime or intended for use in unlawful conduct.
Those powers have been operating satisfactorily over the past six
years. Judicial oversight
in such cases is provided by the magistrates court or a justice of the
peace. The senior officer also has an important role in relation to the
matter of prior approval. We are, therefore, not venturing into new
territory with the search and seizure powers in clause 36. We see no
reason to depart from tried and tested approval procedures, or to
depart from the rule that appropriate judicial oversight is provided by
a justice of the peace or the magistrates court in those cases where
there is no restraint order in
place. 4.30
pm Under
our proposals, applications for a restraint order, or for a variation
of a restraint order to include the detention of seized property, will
have to be made to the Crown court. I repeat that we would expect
higher value or complex cases to be subject to a restraint order, and
therefore judicial authority for the further detention of property
would come from the Crown courts. In cases where no restraint order is
in place, the application to detain seized property is made to the
magistrates court. The magistrate must be satisfied that there are
reasonable grounds for suspecting that the seized property may be
disposed of or hidden, or that the value of the property may be
diminished. I
turn to amendments 98 to 101. Amendment 98 would ensure that the
arrested person’s benefit from the alleged criminal conduct was
financial. Our view is that this amendment is unnecessary. The
part of the clause that the hon. Gentleman seeks to amend with
amendment 98 is based on existing provisions in the 2002
Act—specifically in sections 6 and 40. They refer simply to
benefit, rather than financial benefit, and benefit is defined in
section 6. Neither the courts nor any law enforcement agencies have had
any difficulty with this
terminology. Similarly
the aspects of clause 36 that the hon. Gentleman wishes to amend with
amendments 99 to 101 are based on existing provisions in the 2002 Act,
specifically the restraint order provisions in section 40. The issue
that amendments 102, 105 and 106 would address, regarding references to
the defendant, is dealt with satisfactorily in proposed new section
47B(2). However these amendments have been overtaken by Government
amendments 161, 162 and 167, which we will debate
later. On
amendment 93, the order-making power proposed in the clause does no
more than enable the Secretary of State to add a reference to a
provision in an Act or to remove a reference to a provision. It does
not allow the Secretary of State to provide for exceptions or to
qualify a statutory provision. If a new piece of statute were to
provide a new power of seizure, the Secretary of State could, by order,
add that provision to the definition of a relevant seizure power. The
power to amend the definition of a relevant seizure power by order is
subject to the affirmative procedure, so there would be an opportunity
for parliamentary oversight and
scrutiny. Government
amendment 178 clarifies that references to the accused in the search
and seizure powers under clause 37 are to the person arrested for the
relevant offence when there is a relevant precondition for triggering
the powers. The amendment relates to the Scottish
provisions. Equivalent amendments to the England, Wales and Northern
Ireland provisions are being made
elsewhere. Let
me say this again: these are very complicated provisions. I apologise
again to the Committee for reading some of this into the record, but it
is extremely important. The points made by the hon. Member for
Hornchurch were also extremely important. I regard this power as
necessary, but potentially invasive. I will consider the issues that he
has raised regarding whether further oversight is needed. We have tried
at every stage in the development of this to ensure that there is
judicial oversight and that there are safeguards built into the
legislation. It would be an arrogant Minister who, when asked to
reconsider, just said no. I will look at it again. However, on the
basis of my remarks, I ask the hon. Gentleman to consider withdrawing
the
amendment.
James
Brokenshire: I appreciate the Minister’s comments
and his undertaking to review this proportionality test. We will
obviously wait to see whether any progress is made. I beg to ask leave
to withdraw the
amendment. Amendment,
by leave, withdrawn.
Amendment
made: 151, in
clause 33, page 25, line 31, at
end insert— ‘(3) After
section 44
insert— “44A
Detention of property pending
appeal (1) This section applies
where— (a) a restraint
order includes provision under section 41A authorising the detention of
property, and (b) the restraint
order is discharged under section 42(5) or
43(3)(b). (2) This section also
applies where— (a) a
restraint order includes provision under section 41A authorising the
detention of property, and (b)
the restraint order is varied under section 42(5) or 43(3)(b) so as to
omit any such provision. (3)
The property may be detained until there is no further possibility of
an appeal against— (a)
the decision to discharge or vary the restraint order,
or (b) any decision made on an
appeal against that
decision.”’.—(Mr.
Coaker.) Clause
33, as amended, ordered to stand part of the
Bill.
Clause
34Power
to retain seized property:
Scotland Amendment
made: 152, in clause 34, page 25, leave
out line 33 and insert— ‘(1)
The Proceeds of Crime Act 2002 (c. 29) is amended as
follows. (2) After section 120
insert—’.—(Mr.
Coaker.) Amendment
proposed: 153, in
clause 34, page 26, line 13, at
end insert— ‘(3) After
section 122
insert— “122A
Detention of property pending
appeal (1) This section applies
where— (a) a restraint
order includes provision under section 120A authorising the detention
of property, and (b) the
restraint order is recalled under section
121(7). (2) This section also
applies where— (a) a
restraint order includes provision under section 120A authorising the
detention of property, and
(b) the restraint order is varied under section
121(7) so as to omit any such
provision. (3) The property may
be detained until there is no further possibility of an appeal against
(or review of)— (a) the
decision to recall or vary the restraint order,
or (b) any decision made on an
appeal against (or review of) that
decision.”’.—(Mr.
Coaker.) Question
put, That the amendment be made.
The
Committee divided: Ayes 6, Noes
2.
Division
No.
4] Question
accordingly agreed to.
Amendment
153 agreed to.
Clause
34, as amended, ordered to stand part of the
Bill.
Clause
35Power
to retain seized property: Northern
Ireland Amendment
made: 154, in clause 35, page 26, leave
out line 15 and insert— ‘(1)
The Proceeds of Crime Act 2002 (c. 29) is amended as
follows. (2) After section 190
insert—’.—(Mr.
Coaker.) Amendment
proposed: 155, in
clause 35, page 27, line 2, at
end insert— ‘(3) After
section 193
insert— “193A
Detention of property pending
appeal
(1) This section applies
where— (a) a restraint
order includes provision under section 190A authorising the detention
of property, and (b) the
restraint order is discharged under section 191(5) or
192(3)(b). (2) This section
also applies where— (a)
a restraint order includes provision under section 190A authorising the
detention of property, and (b)
the restraint order is varied under section 191(5) or 192(3)(b) so as
to omit any such provision. (3)
The property may be detained until there is no further possibility of
an appeal against— (a)
the decision to discharge or vary the restraint order,
or (b) any decision made on an
appeal against that
decision.”’.—(Mr.
Coaker.) Question
put, That the amendment be made.
The
Committee divided: Ayes 6, Noes
2.
Division
No.
5] Question
accordingly agreed to.
Amendment
155 agreed
to. Clause
35, as amended, ordered to stand part of the Bill.
Ordered,
That further consideration be now adjourned.—(Mr.
Ian
Austin.) 4.39
pm Adjourned
till Tuesday 24 February at half-past Ten
o’clock.
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