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Division
No.
8] Blackman-Woods,
Dr.
Roberta Question
accordingly agreed to.
Amendment
192 agreed
to. Amendment
made: 193, in
clause 37, page 43, line 11, leave
out subsection (3) and
insert— ‘(3) Omit section
126 (seizure).’.—(Mr.
Coaker.) Clause
37, as amended, ordered to stand part of the
Bill.
Clause
38Search
and seizure of property: Northern
Ireland Amendments
made: 194, in
clause 38, page 44, line 5, leave
out ‘property held by the person’ and insert
‘realisable
property’. Amendment
195, in
clause 38, page 44, line 13, leave
out ‘property held by the person’ and insert
‘realisable
property’. Amendment
196, in
clause 38, page 44, line 20, leave
out ‘property held by the defendant’ and insert
‘realisable
property’. Amendment
197, in
clause 38, page 44, line 25, leave
out ‘property held by the defendant’ and insert
‘realisable
property’. Amendment
198, in
clause 38, page 45, line 9, at
end insert— ‘(12) In
relation to the first or second condition section 225(9) has effect as
if proceedings for the offence had been started against the defendant
when the investigation was
started.’. Amendment
199, in
clause 38, page 45, line 12, leave
out ‘free property held by the defendant’ and insert
‘realisable
property’. Amendment
200, in
clause 38, page 45, line 30, 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
defendant are to be read as references to the recipient of that
gift.’.
Amendment 201,
in
clause 38, page 47, line 10, 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
264, in
clause 38, page 49, line 7, 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 195B(1),
or (b) ceases to have
reasonable grounds for the suspicion mentioned in section
195C(1).’. Amendment
202, in clause 38, page 49, line 19
, 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— (a) the
decision to refuse the application,
or (b) any decision made on an
appeal against that
decision.’. Amendment
203, in clause 38, page 49, line 19
, at end insert— ‘(4)
In subsection (2) the reference to the period mentioned in section 195J
includes that period as extended by any order under section
195M.’. Amendment
204, in
clause 38, page 49, line 29, 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— (a)
the decision to refuse the application,
or (b) any decision made on an
appeal against that
decision.’. Amendment
205, in
clause 38, page 49, line 42, leave
out ‘free
property held by the
defendant’ and
insert ‘realisable
property’. Amendment
206, in
clause 38, page 49, line 42, before
‘, and’ insert
‘other than exempt property (within
the meaning of section
195C(4))’. Amendment
207, in
clause 38, page 50, line 25, leave
out paragraphs (b) and (c) and insert
‘or ( ) any person affected by the
order.’. Amendment
208, in
clause 38, page 51, line 7, at
end insert— ‘( ) a person
mentioned in section 195M(3),
or’. Amendment
209, in
clause 38, page 51, line 8, leave
out paragraphs (a) and (b) and
insert— ‘( ) any person
affected by the order.’.—(Mr.
Coaker.) Amendment
proposed: 210, in
clause 38, page 51, line 12, at
end insert— ‘195OA Detention
of property pending section 195O
appeal (1) This section applies
where— (a) an
application for an order under section 195M is made within the period
mentioned in section 195J,
and (b) the application is
refused. (2) This section also
applies where— (a) an
order is made under section 195M extending the period for which
property may be detained under section 195J, 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.
9] Blackman-Woods,
Dr.
Roberta Question
accordingly agreed to.
Amendment
210 agreed
to. Amendments
made: 265, in
clause 38, page 51, line 12, at
end insert— ‘195OB
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) Articles 4 and 5
of the Civil Evidence (Northern Ireland) Order 1997 apply in relation
to detention order proceedings as those articles apply in relation to
civil proceedings. (3)
Detention order proceedings are
proceedings— (a) for an
order under section 195M; (b)
for the discharge or variation of such an
order; (c) on an appeal under
section 195O. (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
211, in
clause 38, page 51, line 39, leave
out subsection (3) and
insert— ‘(3) Omit section
194 (seizure).’.—(Mr.
Coaker.) Clause
38, as amended, ordered to stand part of the
Bill.
Clause
39Power
to sell seized personal property: england and
wales
Mr.
Coaker: I beg to move amendment 266, in
clause 39, page 52, line 26, leave
out from ‘property’ to end of line
28.
The
Chairman: With this it will be convenient to take
Government amendments 267 to 289 and 319 to
321.
Mr.
Coaker: The Committee discussed Government amendments 266
to 289 on 12 February, before the recess, as part of a more general
debate on the seizure,
detention and sale of property. I do not propose to go over all of that
again today, but will instead focus on Government amendments 319, 320
and
321. Amendment
319 amends section 69(1) of the Proceeds of Crime Act 2002. It is
consequential to other amendments that we have made elsewhere in the
Bill. Section 69 of POCA makes provision for England and Wales;
amendments 320 and 321 make the corresponding changes to the relevant
provisions for Scotland and Northern Ireland. Section 69 makes
provision about how the courts are to exercise their powers: for
example, it emphasises that the powers must be exercised with a view to
allowing third parties to retain or recover the value of any interest
they hold, and that the satisfaction of a confiscation order takes
precedence over other obligations of the defendant or the recipient of
a tainted gift from the defendant. It also requires that powers must be
exercised with a view to maintaining the value of the amount available
for confiscation. The amendments add the new power to the courts of
making directions about proceeds, most obviously in respect of innocent
third
parties. Amendments
266 to 269, 273 to 278, 282 and 284 to 286 add to the new provisions in
POCA relating to seizing, detaining and selling property to meet the
value of an outstanding confiscation order. They merely provide that,
out of the amount paid in settlement of a confiscation order, the
police and other law enforcement agencies can claim back their
reasonable costs of having to store and sell property. It is entirely
reasonable that the additional cost that falls on the police and others
is reimbursed, much as it is at the moment under POCA in respect of
receivers. It is a matter of budgeting. Costs are reimbursed after the
event, rather than being funded up front, and they are paid out of the
settled amount, so that no additional burden of payment falls on the
defendant. I see the hon. Members for Hornchurch and for Chesterfield
acknowledge the importance of that.
The provision
is simply to do with the distribution of the money that has been
collected. That it is the magistrates court and not the
“enforcer” that decides what the reasonable costs are
provides a safeguard by ensuring independent judicial oversight of the
costs incurred.
James
Brokenshire: The Minister has fastened on the key point
and is explaining it. To be clear, we are talking about simply an
application of proceeds rather than any additional cost—an order
of priority, if I can describe it like that, in respect of which
organisation gets a particular sum of money first in the distribution
of cash that has been realised. Will he confirm that the provision does
no more than that?
Mr.
Coaker: That is correct—I hope that reassures the
hon. Gentleman. He has explained a fundamental point well.
Amendments
270, 272, 279, 281, 283, 287 and 289 add to the new provisions in the
Proceeds of Crime Act. They simply amend the provisions on distributing
sums received in consequence of payment of a confiscation order.
Notably, they provide that where a court has determined the reasonable
costs that the police or another law enforcement agency has incurred,
those costs are paid from the recovered amount. They also provide for
the court, whether a Crown court or magistrates court,
to make directions on any payment. That means that any third party
interests in the property can also be paid back. Amendments
271, 280 and 288 are merely technical amendments. The changes to POCA
that those amendments remove will be made in schedule 6 to the Bill.
Nothing is changing. It is just tidier to make all the consequential
amendments that flow from the changes to POCA in one place.
I hope that,
having given the assurances that I did to the hon. Member for
Hornchurch, he sees the sense in the amendments that we have
proposed.
Amendment
266 agreed to.
Amendments
made: 267, in
clause 39, page 52, line 30, at
end insert— ‘67AA
Costs of storage and
realisation (1) This section
applies if a magistrates’ court makes an order under
section 67A. (2) The
court may determine an amount which may be recovered by the appropriate
officer in respect of reasonable costs incurred
in— (a) storing or
insuring the property since it was seized or produced as mentioned in
subsection (1) of that
section; (b) realising the
property. (3) If the court
makes a determination under this section the appropriate officer is
entitled to payment of the amount under section
55(4). (4) A determination
under this section may be made on the same occasion as the section 67A
order or on any later occasion; and more than one determination may be
made in relation to any
case. (5) In this section
“appropriate officer” has the same meaning as in section
41A.’. Amendment
268, in
clause 39, page 52, line 31, leave
out ‘Section 67A’ and insert ‘Sections 67A and
67AA’. Amendment
269, in
clause 39, page 52, line 36, at
end insert— ‘“(3A) An
appropriate officer may appeal to the Crown Court
against— (a) a
determination made by a magistrates’ court under section
67AA; (b) a decision by a
magistrates’ court not to make a determination under that
section.”’. Amendment
270, in
clause 39, page 52, line 38, at
end insert— ‘67C Proceeds of
realisation (1) This section
applies to sums
which— (a) are in the
hands of an appropriate officer,
and (b) are the proceeds of the
realisation of property under
section 67A. (2) The
sums must be applied as
follows— (a) first, they
must be applied in making any payments directed by the
magistrates’ court or the Crown
Court; (b) second, they must be
paid to the appropriate designated officer on account of the amount
payable under the confiscation
order. (3) If the
amount payable under the confiscation order has been fully paid and any
sums remain in the appropriate officer’s hands, the appropriate
officer must distribute
them— (a) among such
persons who held (or hold) interests in the property represented by the
proceeds as the magistrates’ court or the Crown Court directs,
and (b) in such proportions as
it directs.
(4) Before making a direction under subsection (3)
the court must give persons who held (or hold) interests in the
property a reasonable opportunity to make representations to
it. (5) If the
magistrates’ court has made a direction under either of
subsection (2)(a) or (3) in respect of the proceeds of realisation of
any property, the Crown Court may not make a direction under either of
those provisions in respect of the proceeds of realisation of that
property; and vice versa. (6)
In this
section— “appropriate
officer” has the same meaning as in section
41A; “appropriate
designated officer” means the designated officer for the
magistrates’ court which, by virtue of section 35, is
responsible for enforcing the confiscation order as if it were a
fine.”’. Amendment
271, in
clause 39, page 52, line 41, leave
out subsection
(4). Amendment
272, in
clause 39, page 53, line 11, at
end insert— ‘(5) In section
55(4) (payment of sums received by designated officer under
section 54)— (a)
after “section 54” insert “or
67C”, (b) in paragraph
(b) for “the receiver” substitute “any
receiver”, and (c) after
paragraph (b)
insert— “(c)
third, in payment to an appropriate officer of any amount to which the
officer is entitled by virtue of
section 67AA.”’.—(Mr.
Coaker.) Question
proposed, That the clause, as amended, stand part of the
Bill.
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