Mr.
Coaker: I wish to put on the record a few remarks that I
think are important. I will not detain the Committee long, but the
clause is important, as it goes to the heart of recovering the money to
meet the confiscation order, which essentially is what we are all
trying to do. The exchange between the hon. Member for Hornchurch and I
had goes to the nub of what could have been controversial about the
clause. Although that exchange was brief, it was very
helpful.
The clause
provides an important addition to the powers to enforce outstanding
confiscation orders. It is obviously not enough for the court to make a
confiscation order against a convicted defendant. I say again to the
hon. Member for Chesterfield that confiscation orders can only be made
in a Crown court. Payment of the confiscation order must be ensured,
otherwise the order has no value. We all feel better if a confiscation
order is made, but have we denied the criminal assets to the
individual? We simply have to do better in ensuring that these orders
are
paid. The
clause provides that property that has been seized in England and Wales
by an appropriate officer under a relevant seizure power, or which has
been produced to such an officer in compliance with a production order
under the Proceeds of Crime Act, may be sold to meet a confiscation
order. That completes the set of powers of being able to retain
property seized under other powers for confiscation purposes in clauses
33 to 35, the new power to search for and seize property on or
following arrest in clauses 36 to 38, and now this important power of
sale. Those are significant new powers to aid the enforcement of
confiscation orders, which I know is something that all of us in the
Committee want to see.
Specifically,
the clause provides that a magistrates court can authorise the sale of
seized property if a confiscation order has been made and the time to
pay that order has expired without its being paid. The clause does not
apply to cases where an enforcement receiver has been appointed; in
such cases, the enforcement receiver will sell the property under
existing powers.
The property
must have been seized under specified powers in the Proceeds of Crime
Act 2002 or the Police and Criminal Evidence Act 1984, although there
is the power to add to that list by order. The listed seizure powers
are those likely to have been used in respect of defendants who are
also subject to a financial investigation. A confiscation investigation
aims to establish whether a defendant has benefited from his criminal
conduct and, if so, the extent or whereabouts of that
benefit.
Those who can
be authorised to sell the property are officers who perform financial
investigations under POCA, namely accredited financial investigators,
constables, officers of HMRC, SOCA officers and members of staff of the
main prosecution agencies. The money raised by the sale is to be paid
directly to the court enforcing the confiscation
order.
11.45
am There
is a right of appeal against a decision either to make or not to make
an order authorising sale. The right of appeal is available to affected
third parties, but not to the defendant against whom the confiscation
order has been made. He or she has an existing right of appeal against
confiscation as part of a general right of appeal against sentence
under the Criminal Appeals Act 1968.
Question
put and agreed to.
Clause 39
accordingly ordered to stand part of the
Bill.
Clause
40Power
to sell seized personal property:
Scotland Amendments
made: 273, in
clause 40, page 53, line 33, leave
out from ‘property’ to end of line
35. Amendment
274, in
clause 40, page 53, line 37, at
end insert— ‘131AA
Costs of storage and
realisation (1) This section
applies if the sheriff makes an order under
section 131A. (2) The
sheriff 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 sheriff
makes a determination under this section the appropriate officer is
entitled to payment of the amount under section
131(5A). (4) A determination
under this section may be made on the same occasion as the section 131A
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 120A.’.
Amendment 275,
in
clause 40, page 53, line 38, leave
out ‘Section 131A’ and insert ‘Sections 131A and
131AA’. Amendment
276, in
clause 40, page 53, line 43, at
end insert— ‘“(3A) An
appropriate officer may appeal to the Court of Session
against— (a) a
determination made by a sheriff under section
131AA; (b) a decision by a
sheriff not to make a determination under that
section.”’. Amendment
277, in
clause 40, page 54, line 2, leave
out ‘30’ and insert
‘21’. Amendment
278, in clause 40, page 54, leave out line
5 and insert— ‘(a) confirm,
quash or vary the decision or (as the case may be) the order,
or’. Amendment
279, in
clause 40, page 54, line 8, at
end insert— ‘131C 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 131A. (2) The
sums must be applied as
follows— (a) first, they
must be applied in making any payments directed by the
sheriff; (b) second, they must
be paid to the appropriate clerk of court 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 sheriff directs,
and (b) in such proportions as
it directs. (4) Before making a
direction under subsection (3) the sheriff must give persons who held
(or hold) interests in the property a reasonable opportunity to make
representations to the
sheriff. (5) In this
section— (a)
“appropriate officer” has the same meaning as in
section 120A; (b)
“appropriate clerk of court” means the sheriff clerk of
the sheriff court responsible for enforcing the confiscation order
under section 211 of the Procedure Act as applied by section
118(1).”’. Amendment
280, in
clause 40, page 54, line 9, leave
out subsection
(3). Amendment
281, in
clause 40, page 54, line 10, at
end insert— ‘(4) In section
131 (sums received by clerk of
court)— (a) in
subsection (5) after “130” insert “or
131C”, and (b) after
subsection (5)
insert— “(5A) If
the clerk of court received the sums from an appropriate officer under
section 130 or 131C, the clerk of court must next apply them in payment
to an appropriate officer of any amount to which the officer is
entitled by virtue of section
131AA.”’.—(Mr.
Coaker.) Clause
40, as amended, ordered to stand part of the
Bill.
Clause
41Power
to sell seized personal property: Northern
Ireland Amendments
made: 282, in
clause 41, page 54, line 31, leave
out from ‘property’ to end of line
33. Amendment
283, in
clause 41, page 54, line 36, leave
out from ‘section 190A’ to end of line
38. Amendment
284, in
clause 41, page 54, line 38, at
end insert— ‘215AA
Costs of storage and
realisation (1) This section
applies if a magistrates’ court makes an order under
section 215A. (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
203(4). (4) A determination
under this section may be made on the same occasion as the section 215A
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 190A.’. Amendment
285, in
clause 41, page 54, line 39, leave
out ‘Section 215A’ and insert ‘Sections 215A and
215AA’. Amendment
286, in
clause 41, page 55, line 1, at
end insert— ‘“(3A) An
appropriate officer may appeal to a county court
against— (a) a
determination made by a magistrates’ court under section
215AA; (b) a decision by a
magistrates’ court not to make a determination under that
section.”’. Amendment
287, in
clause 41, page 55, line 3, at
end insert— ‘215C 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 215A. (2) The
sums must be applied as
follows— (a) first, they
must be applied in making any payments directed by the
magistrates’ court; (b)
second, they must be paid to the appropriate chief clerk 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 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) In
this
section— “appropriate
officer” has the same meaning as in section 190A,
and
“appropriate chief clerk” has the same
meaning as in section
202(7).”’. Amendment
288, in
clause 41, page 55, line 6, leave
out subsection
(4). Amendment
289, in
clause 41, page 55, line 18, at
end insert— ‘(5) In section
203(4) (payment of sums received by chief clerk under
section 202)— (a)
after “section 202” insert “or
215C”, (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 215AA.”’.—(Mr.
Coaker.) Clause
41, as amended, ordered to stand part of the
Bill. Clause
42 ordered to stand part of the Bill.
Clause
43Limitation Question
proposed, That the clause stand part of the
Bill.
James
Brokenshire: I have two points to make in relation to the
clause, which extends the limitation period in which civil recovery
proceedings can be brought from 12 to 20 years. My first point is on
the ability to obtain a fair trial after such an extended period. The
Minister may be aware that in response to the consultation on the asset
recovery action plan the Fraud Advisory Panel voiced the concern
that “the
problem with extending the limitation period is that it may be
considerably more difficult for a defendant to assimilate evidence
necessary to defend the case; memories may be faded and records thrown
away.” The
panel was concerned about the impact of the clause on the ability to
obtain a fair trial. Why does the Minister consider the 20-year period
appropriate? Has he thought through the Human Rights Act implications
for the ability to obtain a fair trial after an extended period?
Although, if someone simply got away with it and the authorities have
finally worked out that assets have been received by criminal activity,
I respect and understand the need to ensure that the benefit of those
assets is not in the hands of that person, a significant period has
elapsed. There is therefore a question of proportionality and what is
appropriate to balance the private versus the public arguments and to
ensure due process.
My second
point is slightly different. A victim of an acquisitive crime, for
example, must generally commence any action against the perpetrator
within 12 years of the crime. Why should the state be in the privileged
position, as envisaged in the clause, of having a further eight years
to bring an action for civil recovery if an individual in similar
circumstances does not have that benefit? In other words, why have the
Government decided that there should not be a level playing field, and
why should civil recovery procedures not apply equally to a victim of
an acquisitive crime? It would be interesting to know why the Minister
has fastened upon that point as particularly relevant.
In what
circumstances have the police and SOCA advised him that they have
identified assets that were received through unlawful activity, but
they now feel prevented from taking action? How significant a problem
is that? How many cases does the Minister expect will be revisited as a
consequence of the clause, and why does he therefore regard it as
important and necessary to the
Bill?
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