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Lord Carlisle of Bucklow: The point is that the orders are likely to be requested at short notice. It is unlikely that anyone would wish to convene a court sitting with a clerk to hear the application. It is more likely that people will go to a judge in chambers or, as the noble Lord, Lord Goodhart, said, make an immediate appeal to an individual justice.

Lord Clinton-Davis: Of course it is, but the noble Lord, Lord Goodhart, is saying that the issue should be dealt with by a circuit judge and only by a circuit judge. That is wrong. It is possible for a member of the higher judiciary to deal with the issue. If a matter is difficult and complex, it is open to the magistrate to say, "I will get some further advice" or, "I think that you ought to go somewhere else".

Admittedly, the issue should be further qualified by my noble and learned friend, and I am sure that he will do that. However, we must recognise the way in which magistrates work. When a complex issue is referred to

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them, they can say, "It is beyond me. I cannot do this". Or, they might say, "Hold on, I will take advice about this". They might suggest that the person concerned make an application to another judicial authority. Having said all that, and while I recognise that the noble and learned Lord is trying to do the right thing—

Lord Goodhart: I am not learned.

Lord Clinton-Davis: I am sorry; I should never have referred to the noble Lord as learned. Both of us wish to achieve a situation that is practicable and desirable from the applicant's point of view. I am sure that my noble and learned friend Lord Goldsmith will apprehend this.

Baroness Carnegy of Lour: It is good to hear the noble Lord from his side of the Committee stick up for magistrates. That warms the cockles of my heart. If the matter involves guns in Brussels that must be frozen instantly otherwise disaster will occur, it is unacceptable for magistrates to say that they need to get advice, or to refer the matter to the Crown Court the next day. My noble friend's amendment addresses a good point. We shall hear what the noble and learned Lord has to say.

Lord Goldsmith: At the moment, if a police officer believes that there are guns in Birmingham, Bradford or Halifax, he can obtain a search warrant from a justice of the peace. We, rightly, take the view that justices of the peace are well able, through long practice and experience, properly to grant such search warrants. That is all the order does. It happens to be a search warrant in a different country. But, if noble Lords consider the terms of the domestic freezing order, as outlined in subsection (3), they will see that it is granted in circumstances where evidence,

    "(a) is on premises specified in the application in the participating country,

    (b) is likely to be of substantial value . . . to the proceedings or investigation",

of a serious offence; where evidence,

    "(c) is likely to be admissible in evidence at a trial for the offence, and

    (d) does not consist of or include items subject to legal privilege".

For all intents and purposes, it is precisely the same as a search warrant. It tracks the very language used in PACE, which, noble Lords will note, does not refer to a circuit judge, a High Court judge or a Court of Appeal judge, but a justice of the peace. Section 8 of PACE provides that a search warrant may be issued:

    "If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—

    (a) that a serious arrestable offence has been committed; and

    (b) that there is material on premises specified in the application which is likely to be of substantial value . . . to the investigation of the offence; and

    (c) that the material is likely to be relevant evidence".

And so it continues. The Government's view is that magistrates are entirely fit and able to grant such orders. There is no reason why we should apply a different process to orders executed across a frontier.

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Lord Goodhart: Does the noble and learned Lord not agree that a search warrant simply entitles someone to go on to premises to see what is there? One cannot, simply by virtue of obtaining a search warrant, seize any property found on the premises; there must be some other ground for doing that. On the other hand, a domestic freezing order protects evidence in the participating country pending its transfer to the United Kingdom. Does it not, therefore, go beyond the scope of a mere search warrant, given that it entitles, or requires, the requested country to detain the property that is the subject of a freezing order, and to send it to the United Kingdom?

Lord Goldsmith: With respect, the noble Lord is wrong. Section 8(2) of PACE provides that a constable may seize and retain anything for which a search has been authorised under a search warrant. There would be little point in a search warrant if a constable was not able to do that. I do not believe that there is any difference. If I am wrong I shall write to the noble Lord.

We have got into this difficulty because of a confusion instigated by the Law Society talking about an entirely different kind of procedure. Freezing orders, which used to be called Mareva injunctions, concern the freezing of assets and are entirely different from search warrants. It is quite right that magistrates should not grant that kind of order. It has nothing to do with magistrates and involves a completely different procedure. That may be the cause of the confusion.

The basic point is that in order to be able to operate effectively and quickly—which we all agree is the objective of this legislation—it is entirely appropriate to entrust this power to the well trusted justices of the peace who have been exercising exactly the same kinds of powers, albeit for searches and seizures domestically.

Baroness Anelay of St Johns: I thank the noble and learned Lord for that response. We have had an interesting and important debate in regard to the role of magistrates which may perhaps be echoed in other Bills. Having been a lay magistrate, I should say that the noble and learned Lord was right to underline the valuable role that magistrates perform.

The noble Lord, Lord Goodhart, was right to raise the issue of precisely what this kind of freezing order may be. The noble and learned Lord the Minister suggested that the Law Society may have become confused with a Mareva injunction. That may well be the case. It is a matter about which the noble Lord, Lord Goodhart, and I will need to speak further with the Law Society. I suspect that it has a rather more fundamental objection and that it has been looking more closely at what the noble Lord, Lord Goodhart, said about this being a one-stage application as far as magistrates are concerned and that they are giving the automatic power to freeze at the same time.

I am also grateful to the noble Lord, Lord Clinton-Davis, for pointing out the way in which magistrates carry out their duties very carefully. Although a clerk

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is on duty at all times of the day and night and makes his responses absolutely to the letter, it may well be that the magistrate may not in all circumstances contact him. I know that whenever I was approached for a search warrant or any order involving family matters, my first port of call was to contact the clerk of the court. Indeed, that was point number one on the bullet list you were given to follow as a lay magistrate. Training should ensure that one does that, but it may not always be the case.

I echo what the noble Lord, Lord Clinton-Davis, said. We need to ensure that what we achieve with this is practicable and desirable from the applicant's point of view.

Perhaps the noble and learned Lord will be able to respond to one final question, which has occurred to me as a direct result of the way in which he has addressed us today. On page 7, subsection (5)(a) states,

    "in relation to England and Wales, any judge or justice of the peace",

which I have sought to amend. In drafting the Bill, have the Government had regard to the provisions of the Courts Bill which is about to start its progress through this House next Monday? The noble and learned Lord is aware far more than I that the provisions of that Bill introduce a new definition in regard to judges: that is that judges—hey presto—will all become magistrates; they will become justices of the peace. Is it the Government's intention that when the Courts Bill has been passed—I do not know whether that will be before or after this one—this Bill will need to be redrafted so that it simply refers to "justices of the peace" because all judges will be justices of the peace and there may be duplication? Perhaps the noble and learned Lord will take advice and give me a spot answer.

Lord Goldsmith: I am not going to give a spot answer. We will need to check the situation. It would be a remarkable result if that were the position. We shall check it and make sure that the noble Baroness is provided with an answer.

Baroness Anelay of St Johns: I am grateful. As my noble friends and I are to launch ourselves into the Courts Bill next week the issue is very much at the forefront of our minds. I am grateful to the Minister for agreeing to look at the matter and come back to us. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

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