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Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response and, in particular, for the clarity that he has given to the matter of the joint investigation team. That was worth adding to the record. With regard to time limits, I agree with my noble friend Lord Renton that, sometimes, good practice should not only be debated but should be put into effect. I shall certainly consider that point
Lord Goldsmith: As the noble Baroness has referred to that point, perhaps she will allow me to intervene to say that this is not new law. Again, the reference is to the 1990 Act, which does not prescribe a time limit; and I am told that there have been no problems in practice. If that is the casewise though the words of the noble Lord, Lord Renton, may beit seems unnecessary to change matters on this occasion.
Baroness Anelay of St Johns: The Minister managed to interrupt the sentence just as I was about to say that I realised that it was part of the 1990 Act. Therefore, although I shall consider the matter again, the issue comes within the context of the general pattern of good practice. I shall also look again at the matter of copies of evidence, which was referred to by the noble and learned Lord. I beg leave to withdraw the amendment.
The amendment has been proposed by the Law Society, which is concerned that there should be independent monitoring of the order and of the evidence seized. It is a matter of some concern whether the provisions in Clause 26, which will prevent the evidence which is protected by legal privilege being sent abroad, will be sufficiently observed.
Of course, the court cannot make an order under Clause 26 unless it has reasonable grounds for believing that it does not consist of items subject to legal privilege. But the fact that some items may be subject to legal professional privilege will not necessarily be apparent on the face of the document. Indeed, even if it is, it may from time to time be overlooked.
If the person whose property had been seized were properly legally advised, he would no doubt be able to raise this issue before the property was removed from the United Kingdom. However, it is possible that he will not be properly legally advised or that, for some reason, such as absence from the country, he will not have an opportunity to raise the matter before the property is sent abroad. Therefore, it seems desirable that there should be some way of monitoring what is happening in order to see whether any particular problem arises.
I turn to Amendment No. 49, which I consider to be of some importance. Under Clause 14, before a United Kingdom authority arranges for evidence to be obtained in order to assist foreign criminal proceedings or an investigation, it must be satisfied that there are reasonable grounds for suspecting that an offence has been committed or that the investigation is being carried on in a requesting country. However, once the evidence has been sent, there is no restriction on the use that can be made of it in the requesting country.
This amendment has been tabled in response to concerns raised by Justice. I should declare that I am a vice-chair of the council of Justice. Those concerns are that the provision could lead to a fishing expedition and that a foreign country could institute proceedings.
That could present problems, even if these provisions were limited to a participating country. But, in fact, the provisions apply to any country in the world. Therefore, we believe that the territorial authority should have a power, but not an obligation, to require an undertaking to be given by the requesting court or authority that the evidence will be used only for the purpose for which it has been sent. That power could be used if, for example, it was believed that countries which received the evidence were using it to go on fishing expeditions and if it were felt that some control needed to be exercised over it. I beg to move.
Baroness Anelay of St Johns: I have a brief question. Does the Minister accept that, where there is direct transmission, it is possible that material that was not directly relevant to the investigation could be seized? What do the Government intend should happen to such material?
Lord Goldsmith: This group of amendments deals with two separate topics. The first is the question of the route for transmission. In speaking to Amendment No. 46 in the names of the noble Lords, Lord Dholakia and Lord Goodhart, I shall speak also to Amendments Nos. 47 and 64, which stand in the name of my noble friend Lord Filkin.
The first amendment would require all evidence seized in response to a request for evidence under the search powers in Clauses 16, 17 or 18 to be sent abroad via the UK Central Authority, rather than being transmitted directly from the constable who seized it. It would not allow any flexibility between those two methods.
For all the reasons that I explained earlier, the Government want to make the transmission of evidence directly by the constable who seized it the norm. It would be a more efficient means of sending evidence and would cut out central involvement in the UK once the evidence had been obtained. However, we recognise that, while that should be the norm, there will be some cases where direct transmission of evidence may not be appropriate. That would be the case if there were, for example, a very complex request where evidence was to be taken at multiple locations by multiple police forces and it would be more practical to send all the evidence back to the Central Authority, which could then send it on. The Government tabled Amendment No. 47 in order to permit flexibility.
The noble Lord tabled his amendment on the basis that he would like there to be control by the Central Authority of the evidence seized, particularly in relation to questions of legal professional privilege. But present practice is that the UK Central Authority
Amendment No. 49 seeks to restrict the use to which the requesting authority may put evidence obtained from the United Kingdom. The Government consider that the requirement imposed by that amendment would be unduly restrictive. We cannot legislate for overseas authorities. If we made such a requirement, we would have no way of enforcing it in the absence of a binding international agreement. We can, and do, restrict our own use of evidence obtained from overseas but, as a matter of policy and practicality, would not wish to establish a general obligation to do so in relation to incoming requests.
We do restrict the use of material obtained using Section 2 powers of the SFO. Those are particularly powerful powers, if I can use that expressionI cannot think of another at present. But, as a matter of policy or practicality, we would not think it right to have a general obligation in the way that Amendment No. 49 would require. Therefore, we resist that amendment.
Lord Goodhart: I appreciate the difficulties that Amendment No. 46 would create. I have raised that issue and it is not a matter that I should expect to take any further. I welcome government Amendment No. 47.
Amendment No. 49 still causes me some concern. I appreciate that there would be serious difficulties in enforcing it, but I am concerned that some countries may use information supplied under this power for purposes which might be regarded in this country as improper.