James
Brokenshire: A number of these amendments repeat some of
my earlier arguments about the need for proportionality, for judicial
oversight to come from the Crown court rather than the magistrates
court and for appeal rights to be to the Court of Appeal. In the light
of our previous debate I do not intend to rehearse those arguments
again. However, I ask the Minister to reflect carefully on the points
that have been made not just by me but by the Bar Council and Liberty
on the appropriate level of judicial oversight. Obviously we look
forward to seeing further Government amendments on the proportionality
of the use of these
provisions. Amendment
117 makes a slightly different point. It seeks to give third parties
who have an interest in the assets that have been detained, and in
respect of which an application for further detention is sought, the
right
to make representations to the court. As previously noted, innocent
parties may have a direct interest in the relevant assets and their
continued detention may cause them hardship. In order that convention
rights are maintained and upheld, amendment 117 provides for a specific
right to make representations to the
court. It
is interesting to note that Government amendment 270 adds a right for
third parties to make representations prior to the realisations of
assets. If that concept is accepted in that context why should it not
equally apply if an order is granted authorising the detention of such
assets for an extended period? While we are looking at this part of
clause 36, could the Minister tell us why proposed new section 47N(3),
on the discharge, variation and lapse of detention orders, provides
that an application must be made to the court to discharge the
detention order where proceedings for the offence mentioned have been
concluded? Why is that not automatic? Why is that court application
required? Why does the order not simply lapse in these
circumstances?
Mr.
Coaker: Let me deal with what the hon. Gentleman has said.
I think he will be pleased with one or two of the points that I shall
make, to continue with this constructive approach. He has made one or
two interesting points with his
amendments— Mr.
David Ruffley (Bury St. Edmunds) (Con): You’ll ruin
his career at this
rate.
Mr.
Coaker: I am trying to enhance his career. Constructive
debate is a way to enhance one’s
career. These
amendments deal with when the hearing takes place, rather than the
level of judicial oversight for the prior approval that we debated
earlier. They are about which court is appropriate to deal with the
various parts of the Bill. Amendments 114, 116 and 118 to 122 are about
which court is appropriate for making an order for further detention of
the seized property and for considering appeals. As I explained
earlier, these new powers are based on similar provisions in the
Proceeds of Crime Act 2002 as regards detention and forfeiture of cash.
Judicial oversight as regards seized cash is provided by the
magistrates court or a justice of the peace. An appeal against
forfeiture of cash is heard in the Crown court. We will, therefore, not
create a precedent with such further detention powers and the appeals
provisions in clause
36. As
I have stressed from the outset, we expect that higher value or complex
cases would be subject to a restraint order. In those cases, the
authority for further detention of property would come from the Crown
court—as I have said on numerous occasions, restraint orders can
be dealt with only by the Crown court. It is only in those cases where
there is no restraint order that application further 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 might be disposed of or hidden, or that the value of
the property might be diminished.
However, the
hon. Member for Hornchurch raises an important point in amendments 116
and 122 and I have some sympathy with the concerns that he raises. I
want to be satisfied as to the appropriate level of judicial oversight
in such cases and whether it is right for a
single justice of the peace, rather than a magistrates court, to deal
with the hearings in relation to detention orders. I would therefore
like to consider further whether a justice of the peace would be
properly equipped to consider applications under proposed new sections
47M and 47N. I hope that the hon. Gentleman will find it helpful if I
say that I will give further consideration to those amendments and will
return to those matters as the Bill progresses. On that basis, I ask
the hon. Gentleman to consider withdrawing his amendments, but I stress
that I will consider his points
further. Regarding
amendment 115, I again recognise the importance of the detention period
being reasonable and proportionate. It will be for the magistrates
courts to consider what is a reasonable and proportionate period for
which the property can be detained. In addition, as I have previously
explained, any person affected by an order can apply at any time for
variation or discharge of the order. More generally, the proposed new
sections 47B(9) and 47B(10) of the Proceeds of Crime Act, set out in
clause 36, mean that the powers cannot be exercised in cases where
there is undue delay in the criminal proceedings, or the application to
reconsider the confiscation order. Furthermore, a proposed new section
47M(3) prevents undue delay creeping in as regards the continued
detention of the property. Such delay is a ground for a discharge of a
detention order.
Amendment 117
draws attention to the important issue of the rights of third parties.
Let me assure the Committee and the hon. Gentleman that we fully
recognise the need to take account of third party interests in detained
property. The defendant, or indeed any third party affected by a
detention order, can apply for the discharge or the variation of that
order. That gives third parties the opportunity to apply to the court
for the release of seized property.
The
provisions on third party rights in clause 36 mirror those in section
42(3) of the 2002 Act, as regards the rights of third parties to apply
for the variation or discharge of a restraint order. There is also a
right of appeal to the Crown court against a magistrates court’s
decision. As I have said before, those are all appropriate safeguards
to ensure that the seizure and detention powers are used
proportionally. However, I accept that the rights of third parties are
important and therefore I would like to consider further the scope for
allowing third parties the opportunity, on application, to make
representations in respect of hearings under proposed new section
47N.
Beyond that,
a code of practice will contain further details on the exercise of the
search and seizure powers, including the need to take account of third
party rights, in order to ensure that they are exercised lawfully and
proportionately. On the issue of the code of practice, I will take the
opportunity to respond to an issue raised by the Bar Council in regard
to the dissipation of assets. I confirm to the Committee that the code
will make it clear that the risk of dissipation will have to be
significant before the property is seized.
I hope that
with those remarks and explanation, the offer to consider some of the
hon. Gentleman’s points and to consider further the question of
the rights of third parties, the hon. Gentleman might consider
withdrawing his amendments.
11.30
am
James
Brokenshire: I am grateful for the way in which the
Minister responded to this group of amendments in that he is prepared
to reflect on which is the appropriate court in respect of the
provisions in the clause. Equally, I am grateful that he will look also
at other points, for example third party rights. While he says that it
will be open to a third party to make an application, it needs to be
clear that third parties are not prejudiced and that if they have
rights in respect of the assets, they are able to make representations
at an appropriate stage. If there is an initial hearing, it should be
possible to make representations then, rather than the party being
forced subsequently to make an application to challenge or override an
order that has been granted. However, I accept the spirit in which the
Minister replied, and in light of his assurance that he will look at
the matter—we will listen carefully to how he responds on
Report—I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendments
made: 167, in clause 36, page 33,
line 20, leave out ‘free property held by the
defendant’ and insert ‘realisable
property’. Amendment
168, in
clause 36, page 33, line 20, before
‘, and’ insert
‘other than exempt property (within
the meaning of section
47C(4))’. Amendment
169, in
clause 36, page 34, line 1, leave
out paragraphs (b) and (c) and insert
‘or ( ) any person affected by the
order.’. Amendment
170, in
clause 36, page 34, line 26, at
end insert— ‘( ) a person
mentioned in section 47M(3),
or’. Amendment
171, in
clause 36, page 34, line 27, leave
out paragraphs (a) and (b) and
insert— ‘( ) any person
affected by the order.’.—(Mr.
Coaker.) Amendment
proposed: 172, in
clause 36, page 34, line 31, at
end insert— ‘47OA Detention
of property pending section 47O
appeal (1) This section applies
where— (a) an
application for an order under section 47M is made within the period
mentioned in section 47J,
and (b) the application is
refused. (2) This section also
applies where— (a) an
order is made under section 47M extending the period for which property
may be detained under section 47J,
and (b) the order is discharged
or varied so that detention of the property is no longer authorised by
virtue of the order. (3) The
property may be detained until there is no further possibility of an
appeal against the decision to refuse the application or discharge or
vary the order (as the case may be).’.—(Mr.
Coaker.) Question
put, That the amendment be
made. The
Committee divided: Ayes 7, Noes
5.
Division
No.
7] Blackman-Woods,
Dr.
Roberta
Question
accordingly agreed to.
Amendment
172 agreed
to. Amendments
made: 262, in
clause 36, page 34, line 31, at
end insert— ‘47OB
Hearsay evidence in detention order
proceedings (1) Evidence must
not be excluded in detention order proceedings on the ground that it is
hearsay (of whatever
degree). (2) Sections 2 to 4 of
the Civil Evidence Act 1995 apply in relation to detention order
proceedings as those sections apply in relation to civil
proceedings. (3) Detention
order proceedings are
proceedings— (a) for an
order under section 47M; (b)
for the discharge or variation of such an
order; (c) on an appeal under
section 47O. (4) Hearsay is a
statement which is made otherwise than by a person while giving oral
evidence in the proceedings and which is tendered as evidence of the
matters stated. (5) Nothing in
this section affects the admissibility of evidence which is admissible
apart from this
section.’. Amendment
173, in
clause 36, page 35, line 12, leave
out subsection (3) and
insert— ‘(3) Omit section 45
(seizure).’.—(Mr.
Coaker.) Clause
36, as amended, ordered to stand part of the
Bill.
Clause
37Search
and seizure of property:
Scotland Amendments
made: 174, in
clause 37, page 36, line 1, leave
out ‘property held by the person’ and insert
‘realisable
property’. Amendment
175, in
clause 37, page 36, line 9, leave
out ‘property held by the person’ and insert
‘realisable
property’. Amendment
176, in
clause 37, page 36, line 16, leave
out ‘property held by the accused’ and insert
‘realisable
property’. Amendment
177, in
clause 37, page 36, line 21, leave
out ‘property held by the accused’ and insert
‘realisable
property’. Amendment
178, in
clause 37, page 37, line 4, at
end insert— ‘(11) In
relation to the first or second condition references in sections 127C
to 127P to the accused are to the person mentioned in that
condition.’. Amendment
179, in
clause 37, page 37, line 4, at
end insert— ‘(12) In
relation to the first or second condition section 144(8) has effect as
if proceedings for the offence had been started against the accused
when the investigation was
started.’. Amendment
180, in
clause 37, page 37, line 7, leave
out ‘free property held by the accused’ and insert
‘realisable
property’. Amendment
181, in
clause 37, page 37, line 24, at
end insert— ‘(4A) In
relation to realisable property which is free property held by the
recipient of a tainted gift, references in subsection (4) to the
accused are to be read as references to the recipient of that
gift.’.
Amendment 182,
in
clause 37, page 39, line 2, at
end insert— ‘(4A) An officer
exercising a power under subsection (4) may detain the vehicle for so
long as is necessary for its
exercise.’. Amendment
263, in
clause 37, page 40, line 43, leave
out subsection (2) and
insert— ‘(2) The property
may be detained initially for a period of 48
hours. (2A) But it must be
released if within that period the appropriate
officer— (a) ceases to
be satisfied as mentioned in section 127B(1),
or (b) ceases to have
reasonable grounds for the suspicion mentioned in section
127C(1).’. Amendment
183, in
clause 37, page 41, line 10, at
end insert— ‘(3) If such an
application is made within that period and the application is refused,
the property may be detained until there is no further possibility of
an appeal against (or review
of)— (a) the decision to
refuse the application, or (b)
any decision made on an appeal against (or review of) that
decision.’. Amendment
184, in
clause 37, page 41, line 10, at
end insert— ‘(4) In
subsection (2) the reference to the period mentioned in section 127J
includes that period as extended by any order under section
127M.’. Amendment
185, in
clause 37, page 41, line 20, at
end insert— ‘(3) If such an
application is made within that period and the application is refused,
the property may be detained until there is no further possibility of
an appeal against (or review
of)— (a) the decision to
refuse the application, or (b)
any decision made on an appeal against (or review of) that
decision.’. Amendment
186, in
clause 37, page 41, line 32, leave
out ‘free property held by the accused’ and insert
‘realisable
property’. Amendment
187, in
clause 37, page 41, line 32, before
‘, and’ insert
‘other than exempt property (within
the meaning of section
127C(4))’. Amendment
188, in
clause 37, page 42, line 12, leave
out paragraphs (b) and (c) and insert
‘or ( ) any person affected by the
order.’. Amendment
189, in
clause 37, page 42, line 37, at
end insert— ‘( ) a person
mentioned in section 127M(3),
or’. Amendment
190, in
clause 37, page 42, line 38, leave
out paragraphs (a) and (b) and
insert— ‘( ) any person
affected by the
order.’. Amendment
191, in
clause 37, page 42, line 41, leave
out ‘30’ and insert
‘21’.—(Mr.
Coaker.) Amendment
proposed: 192, in
clause 37, page 42, line 44, at
end insert— ‘127OA Detention
of property pending section 127O
appeal (1) This section applies
where— (a) an
application for an order under section 127M is made within the period
mentioned in section 127J,
and (b) the application is
refused.
(2) This section also applies
where— (a) an order is
made under section 127M extending the period for which property may be
detained under section 127J,
and (b) the order is discharged
or varied so that detention of the property is no longer authorised by
virtue of the order. (3) The
property may be detained until there is no further possibility of an
appeal against the decision to refuse the application or discharge or
vary the order (as the case may be).’.—(Mr.
Coaker.) Question
put, That the amendment be
made. The
Committee divided: Ayes 7, Noes
5.
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