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Lord Goodhart moved Amendment No. 51:


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The noble Lord said: The effect of this amendment would be to leave out paragraph (c) of subsection (3) in Clause 20. Subsection (3) as drafted provides for an order to be made by,


    "a court exercising criminal jurisdiction in the country . . . a prosecuting authority in the country . . . [or] any other authority in the country which appears to the territorial authority to have the function of making such orders".

Again, this is an issue raised by Justice, which is concerned that the provision in paragraph (c) is too wide. It is desirable that overseas freezing orders must be subject to some judicial scrutiny. They should not merely be made administratively. The amendment would mean that the freezing orders would have to come from authorities which have the power to make orders and not merely from those which appear to the territorial authority to have the function of making such orders.

A domestic freezing order must be made by a judicial authority; and a freezing order, whether domestic or overseas, can have serious effects. It may, for example, deprive the owner of property of the use of that property for a substantial time or possibly even permanently. In such cases, while we support the idea of mutual assistance, we feel it is desirable that such orders should be granted only where in another country, as in this country, the order has been made by a judicial authority. I beg to move.

Lord Goldsmith: Given the noble Lord's remarks, his proposal is even more radical than the amendment that he has moved. Even if the amendment were accepted, the provision would leave overseas freezing orders capable of being made either by,


    "a court exercising criminal jurisdiction in the country",

or by,


    "a prosecuting authority in the country".

With respect, it does not make sense to say that the amendment is designed to have the effect that a freezing order can be made only by a court.

Under the framework decision, we are under an obligation to recognise orders issued by judicial authorities. In a number of EU countries, orders of this kind could be made by examining magistrates, who have no precise equivalent in this country. They are plainly legitimate judicial authorities—"judicial authority" is the description in the framework decision. But, plainly, we must be able to enforce orders that they make. An examining magistrate might not accurately fall within the description,


    "a court exercising criminal jurisdiction in the country",

or,


    "a prosecuting authority in the country".

Therefore, the purpose of Clause 20(3)(c) is to cover all judicial authorities in other EU countries. I say "other EU countries" because that is the limit on the application of this provision. EU judicial authorities are designated under the 1959 Council of Europe convention, so they are clearly identified.

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For many years, we have been able to execute requests for mutual legal assistance, including for search and seizure, by authorities of this type. Section 7(4)(b) of the 1990 Act includes that type of person. That is re-enacted by Clause 13(2)(b) of the Bill. So the provision merely applies to the new concept of the freezing order the same approach that has already been adopted in relation to mutual legal assistance. It has not caused any difficulties in practice. It must be available for the enforcement of overseas freezing orders.

Lord Goodhart: I am grateful to the noble and learned Lord for that explanation. I understand the issues that arise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendment No. 52:


    Page 12, line 7, leave out "person who" and insert "court or authority which"

The noble and learned Lord said: In moving this amendment, standing in the name of my noble friend Lord Filkin, I shall speak also to Amendments Nos. 55, 60 to 63, 74 to 76, 128, 132 and 133.

These are all technical and drafting points. Amendment No. 52 to Clause 20 is a drafting amendment to reflect correctly the requirement of the framework decision for the certificate to be signed by or on behalf of the competent judicial authority.

Amendment No. 55 to Clause 21 clarifies that the rules referred to here are rules of court, which may be made under Clause 49 of the Bill.

The two amendments to Clause 24—Amendments Nos. 60 and 61—have the effect of simplifying the structure of the clause and clarifying that evidence seized should be retained until a request has been received and considered. The previous drafting did not reflect the framework decision in that respect and would have required automatic transmission of evidence by virtue of receipt of the request without allowing for it to be considered.

Amendments Nos. 62 and 63 to Clause 25 are designed to clarify the conditions for the release of evidence to ensure that evidence may be released only in accordance with the grounds provided for in the framework decision.

The three amendments to Clause 28—Amendments Nos. 74 to 76—are designed to make it clear that an offence prescribed under Clause 28(5)(b) may be prescribed by means of a general description and not only by specifying a particular offence. That will enable us to designate not only the offences listed in Article 3(2) of the framework decision but also a generic type of offence. It will cover, for example, cases covered by Article 3(4), in relation to which we are obliged to assist if there is dual criminality.

The first amendment to Clause 52—Amendment No. 128—simply adds a definition of "customs officer" to the existing list. The second amendment—Amendment No. 132—clarifies that the existing definition of "process" applies to England, Wales and

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Northern Ireland. A separate definition has been added, as the noble Baroness, Lady Carnegy, may be pleased to note, for Scotland correctly to reflect the legal terms used in the different legal systems. The third amendment—Amendment No. 133—is needed because there was a concern that, as currently drafted, a summons issued by a prosecuting authority, as opposed to a court, overseas—for example, an examining magistrate—would not be included within the definition of "process" in Clause 52. I beg to move.

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 [Considering the order]:

Baroness Anelay of St Johns moved Amendment No. 53:


    Page 12, line 21, leave out "a court" and insert "the High Court"

The noble Baroness said: When the overseas freezing order is received, the Secretary of State has to nominate a court in England and Wales or Northern Ireland to give effect to the order under Clause 21(1). But Clause 21 is silent on what level of court that must be. I have tabled the amendment merely to ask the noble and learned Lord whether it could be a magistrates' court, a county court, a Crown Court, a High Court or even the Special Immigration Appeals Commission.

My amendment requires that the order should be given effect by the High Court, merely to elicit from the noble and learned Lord an explanation of which court is "a court" for these purposes. I beg to move.

Lord Renton: The Government should consider this amendment carefully. I cannot imagine that minor matters will be the subject of proceedings under the Bill. I should have thought that the Secretary of State, instead of merely referring the matter to some relatively minor local court—which he could do under the Bill as drafted—should refer it to the High Court.

I say with respect to my noble friend that to replace the expression "a court" with "the High Court" is not quite adequate in terms of drafting. I think that the amendment should refer to an application to the High Court in England and Wales or Northern Ireland, as the case may be, to give effect to the overseas freezing order.

This is a minor drafting matter. In principle, however, I believe that it should become the responsibility of the High Court rather than any minor court.

Lord Goldsmith: This short debate has strongly reflected the other way round our previous debate in Committee on freezing orders. Then, I argued strongly that it was entirely appropriate that magistrates' courts, which have great experience in dealing with the granting of search warrants, should deal with the granting of domestic freezing orders.

The current position in relation to requests for mutual legal assistance is that the provision in the 1990 Act leaves it to the Secretary of State to decide which

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court should deal with the matter. Albeit in the context of freezing orders, that is precisely what is proposed in this clause.

The Government could not accept the amendment that imposed the obligation to limit execution of these orders simply on the High Court. As I said on a previous occasion, it would be wrong to compare evidence freezing orders with assets freezing orders. They are quite different. They are simply another form of gathering evidence at the request of an overseas government.

Requests for evidence from overseas are currently generally dealt with by a magistrates' court. The Secretary of State has the power to put it to someone else, but there seems no reason why that procedure should not be followed for evidence freezing orders under the new procedure. That is why we cannot accept Amendment No. 53.

Baroness Anelay of St Johns: I am grateful, as always, to my noble friend Lord Renton for his comments on drafting. I promise him that the amendment was intended merely to elicit clarity. If I were to pursue the matter, I should make sure that I sought his advice before bringing it back.

I am grateful to the noble and learned Lord for providing the explanation that I anticipated he might give. It was helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 54 not moved.]


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