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The Attorney-General (Lord Goldsmith): Before discussing the detail of the amendments, I want to make a general point about what we are trying to achieve in the Bill, particularly because this is the first amendment relating to Part 5, as the noble Lord, Lord Goodhart, said. We are trying to remove the proceeds of unlawful conduct from circulation. As has been said in this place previously, we want to make it clearer than ever that crime does not pay. In order to ensure that, it is necessary for us to use ends that are fair and effective.
The civil recovery scheme is a new proceeding to recover properties of all kinds other than cash that are found by the police or Customs and Excise. However, the cash forfeiture scheme in Chapter 3 is a development of a scheme that has been successfully
operating for more than 10 years. That is an important consideration in relation to the venue for those proceedings.The existing cash seizure, detention and forfeiture proceedings—that is, all stages of the process—under the Drug Trafficking Act 1994, which was previously the Criminal Justice (International Co-operation) Act 1990, take place before the magistrates' court. The venue for the scheme for terrorist cash—the provisions were recently introduced in the Anti-Terrorism, Crime and Security Act 2001—is the same; that is, the magistrates' court.
Magistrates are therefore familiar with the concepts that are involved in cash forfeiture proceedings and have shown themselves able to deal with those concepts to good effect. Just over £3 million was forfeited in 2000-01 under the drugs legislation, which demonstrates that the scheme is successful in practice.
The cash forfeiture element of this part of the Bill is simply an extension of and replacement for the existing Drug Trafficking Act scheme. As I said, that scheme uses the magistrates' court for all parts of the process, and it has done so successfully. We therefore do not agree that there is any reason to alter such a fundamental part of the existing scheme in relation to court venue and cash forfeiture.
I turn to the objections to the amendment and our reasons for opposing it and those amendments that are grouped with it. First, experience has shown, and it is to be expected, that arguments in the magistrates' court in relation to the cash forfeiture scheme will be narrower than those in relation to the new civil proceedings involving other types of property. They are likely to be narrowed to the derivation or destination of the cash; that is, to whether or not that fits the definition of recoverable property. The Government believe, and experience bears out, that the magistrates' court is an appropriate level for such considerations and proceedings. It is expected, therefore, that the cash forfeiture schemes will be quick and simple and that there will be little room for complex arguments. Having different venues for civil recovery, where the issues are likely to be more complex, and cash forfeiture, where they are likely to be more straightforward, seems appropriate. It is not the case, as the noble Lord suggested, that that arrangement is illogical; it appears to us to be logical.
Property law, for example, which can arise under the civil recovery scheme in relation to real property or other forms of property, can be very complex. The Government's view is that those potential complexities, including, for example, the position of interests in property mortgages or tenants, make it appropriate for the High Court. However, cash does not raise the same complex issues and it is appropriate to retain the arrangement in the magistrates' court.
There are also practical considerations that add further weight to the decision to keep cash forfeiture in the magistrates' court. If the amendments were agreed to, the higher courts would be unduly occupied by a potentially large number of inappropriate cases. That
would result in delays in listing cases and case costs would soar. That is not desirable in terms of making the legislation effective and it will not be in the interests of those who will be affected by it.There are, of course, important protections. The most important protection that I should mention at this stage is that a decision by the magistrates' court is subject to an appeal to a higher court—to the Crown Court in England and Wales. I emphasise that that appeal involves a rehearing, so that the issues can be ventilated again; the matter is not limited in some way simply to a point of law. The limited number of matters to be decided and the safeguards that are provided in the scheme justify, in our view, the decision to keep cash forfeiture proceedings in the magistrates' court. That deals with Amendments Nos. 204 and 233 to 254.
I turn to Amendment No. 224A, which is also in this group of amendments. Clause 285 provides for certain exemptions from civil recovery proceedings. Subsection (4) establishes that civil recovery proceedings may be taken only if they involve property other than cash that is held by the same person. Proceedings involving cash alone—in effect, where cash is identified and seized by the police or Customs and Excise in the circumstances that are provided for in Chapter 3—are to be brought under the cash forfeiture proceedings.
Subsection (4) is intended to avoid confusion about which scheme applies to cash that is found within the United Kingdom that is alleged to be recoverable property. The amendment raises the possibility of confusion and could lead to inconsistency in relation to the way in which cash alone is treated—sometimes it would be dealt with under Chapter 2 through proceedings in the High Court and sometimes it would be dealt with under Chapter 3 through proceedings in the magistrates' court.
Chapter 3 has been designed specifically for cash alone. It has provisions in relation to the continued detention of cash—for example, as Members of the Committee will have seen, in relation to placing the moneys in an interest-bearing account. Those features are specific to cash and do not appear in Chapter 2.
Those features reflect the fact that we have established procedures for dealing with cash that is found by law enforcement officers that are effective, as they have previously proved to be, and which can have quick results. In those circumstances, the Government's view is that it would be wrong to confuse the situation, as Amendment No. 224A would do. In other words, we should continue to make it clear that cash forfeiture involving the police and Customs and Excise can be dealt with quickly and efficiently through established and tried methods in the magistrates' court. The civil process will be applied to more complex cases, which do not involve cash alone. Those are the reasons why I invite the noble Lord to withdraw the amendment.
Lord Hope of Craighead: I hope that the noble and learned Lord will deal with one or two points that are
of particular interest north of the Border. First, an appeal by way of rehearing, which, as he rightly said, is available in the case of an appeal from a magistrates' court, is not available in Scotland. If there is an appeal from the sheriff court to the Court of Session on appeal, that is not an appeal by way of rehearing. That line of reasoning does not carry the same weight in Scotland.Secondly, there is a power given to sheriffs under general legislation to enable them to refer difficult cases to the Court of Session. Those cases will be heard at first instance in the Court of Session. So far as I can see, there is no provision in the Bill to enable the sheriff to operate that procedure if he felt that it was appropriate for the first hearing, on the facts, to take place in the Court of Session and not before him. Will the Government consider introducing that element of flexibility?
I am afraid that I remain completely unclear on my third point. What happens if one discovers in the repositories of the person involved—the person who is said to have been involved in unlawful conduct—that there is a combination of property and cash? Under the Scottish system, it would be for the same person—the Crown—to take the initiative and bring the proceedings. It would seem strange if it were necessary to bring proceedings at first instance in regard to property in one court and in regard to the cash element in another. If I am wrong about that, I should be relieved, but if I am right about it—if there is a possibility of having to bring parallel proceedings in two different courts at different levels—some element of flexibility would be wise, I respectfully suggest, to enable the sheriff to refer the matter to the Court of Session so that the whole matter could be dealt with in one process.
6 p.m.
Lord Goldsmith: I suspect that the noble and learned Lord will forgive me if I say that the answers to some of his questions are not immediately obvious to me, given that they relate to the procedure in Scottish courts. Sadly, that is not within my knowledge or experience. I certainly want to consider what he said but perhaps I may deal, so far as I can, with the points that he raised.
In the course of dealing with the last of the amendments, I referred to Clause 285(4), which provides that:
- "Proceedings for a recovery order may not be taken in respect of cash found at any place . . . unless the proceedings are also taken in respect of property other than cash which is property of the same person".
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