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Secondly, there is a good deal of variation in the language used about the test that must be applied before a restraint order or a freezing order can be made. Under Schedule 4 to the Terrorism Act 2000, a restraint order may be made where;
I should like to hear the explanation for that although, like the noble Lord, Lord Renton, I agree that the provision is an addition to the arsenal of anti-terrorist of weapons that should be adopted.
Baroness Anelay of St Johns: As I said earlier, I, too, welcome the amendments asas the noble Lord, Lord Goodhart, rightly saida proper addition to the Government's arsenal in their fight against terrorism. That having been said, it is always important that new clauses and schedules are properly drafted, and I endorse everything that my noble friend Lord Renton said and the questions posed by the noble Lord, Lord Goodhart, especially his question about the different levels of test applied to freezing orders. I shall be interested to hear the Minister's response to that.
I am grateful to the Minister for saying that on Report the Government will table an amendment to make clear the role of the High Court with regard to incoming applications. It is important that that is
Lord Filkin: I thank those Members of the Committee who spoke in support in principle of the need for the measure; that is appreciated. I shall make a fist of responding to some of the good, probing questions that have been asked, but I am almost certain that I shall be writing to the Committee about them, because the issues are complex as well as important.
The noble Lord, Lord Renton, makes an interesting argument about whether the drafting of sub-paragraphs (3), (4) and (6) could be improved. We shall certainly consider that with an open mind to decide whether we concur. I shall write to him before Report so that he knows our mind on those issues.
The noble Lord, Lord Goodhart, asked about the new paragraphs relating to the High Court making a restraint order. I shall have to write to him on his first point; I have difficulty reading my own writing about it, which presents a particular challenge.
Secondly, he asked: why are we using the "good arguable case" test in paragraph 11B(2) as the test that must be satisfied before an order can be sent abroad? The framework decision applies where the relevant judicial authority "considers" that the property concerned constitutes the proceeds or instrumentalities of an offence. We have used the "good arguable case" formula as a means to translate "considers" into our law. We believe that that indicates to the court the appropriate standard of proof. The test is based on the test for an interim receiving orderthe equivalent of a restraint orderpending civil recovery under Part 5 of the Proceeds of Crime Act 2002 in Section 246(5).
The test of a good arguable case exists because the framework decision states that the court must consider that a property is the proceeds or instrumentalities of an offence. The test for an incoming order is restricted to the terrorist's property and uses the definition of Section 14 of the Terrorism Act 2000 for that purpose.
I thank Members of the Committee for those questions; I shall write to them; before doing so, we shall of course give proper consideration to whether the measures are appropriate and whether they can be bettered, as I said in response to the question posed by the noble Lord, Lord Renton.
Lord Goodhart: I do not think that "a good arguable case" means anything like the same as "considers". To say that there is a good arguable case that property is likely to be used means that there is a significant chance that the claim may succeed, but that could be well short of the balance of probabilities. Under the test as to whether leave is to be given for judicial review, for example, one does not have to show on the balance of probabilities that one is likely to succeed, one has merely to show that there is an issue worth arguing about. I should have thought that if a court considers that something is terrorist property, that means at least that it is likely to be terrorist property. I am concerned about the use of the words "good arguable case".
"Terrorist property: freezing orders
1 The Terrorism Act 2000 (c. 11) is amended as follows.
2 In section 123 (orders and regulations), in subsection (2)(i), for "paragraph" there is substituted "paragraphs 11A and".
3 In Schedule 4 (forfeiture orders), after paragraph 11 there is inserted
"Domestic and overseas freezing orders
11A (1) This paragraph has effect for the purposes of paragraphs 11B to 11G.
(2) The relevant Framework Decision means any Framework Decision of the Council of the European Union which is identified by the Secretary of State by order and is about the execution of orders freezing property or evidence.
(3) A listed offence means
(a) an offence described in a prescribed provision of the relevant Framework Decision, or
(b) a prescribed offence or an offence of a prescribed description.
(4) An order under sub-paragraph (3)(b) which, for the purposes of paragraph 11D(3), prescribes an offence or a description of offences may require that the conduct which constitutes the offence or offences would, if it occurred in a part of the United Kingdom, constitute an offence in that part.
(5) Specified information, in relation to a certificate under paragraph 11B or 11D, means
(a) any information required to be given by a prescribed document annexed to the relevant Framework Decision, or
(b) any prescribed information.
(6) In this paragraph, "prescribed" means prescribed by an order made by the Secretary of State.
(7) A participating country means
(a) a country other than the United Kingdom which is a member State on a day appointed for the commencement of Schedule (Terrorist property: freezing orders) to the Crime (International Co-operation) Act 2003, and
(b) any other member State designated by an order made by the Secretary of State.
(8) "Country" includes territory.
(9) Section 14(2)(a) applies for the purposes of determining what are the proceeds of the commission of an offence.
Domestic freezing orders: certification
11B (1) If any of the property to which an application for a restraint order relates is property in a participating country, the applicant may ask the High Court to make a certificate under this paragraph.
(2) The High Court may make a certificate under this paragraph if
(a) it makes a restraint order in relation to property in the participating country, and
(b) it is satisfied that there is a good arguable case that the property is likely to be used for the purposes of a listed offence or is the proceeds of the commission of a listed offence.
(3) A certificate under this paragraph is a certificate which
(a) is made for the purposes of the relevant Framework Decision, and
(b) gives the specified information.
(4) If the High Court makes a certificate under this paragraph
(a) the restraint order must provide for notice of the certificate to be given to the person affected by it, and
(b) paragraph 6(2) to (4) applies to the certificate as it apples to the restraint order.
Sending domestic freezing orders
11C (1) If a certificate is made under paragraph 11B, the restraint order and the certificate are to be sent to the Secretary of State for forwarding to
(a) a court exercising jurisdiction in the place where the property is situated, or
(b) any authority recognised by the government of the participating country as the appropriate authority for receiving orders of that kind.
(2) The restraint order and the certificate must be accompanied by a forfeiture order, unless the certificate indicates when the court expects a forfeiture order to be sent.
(3) The certificate must include a translation of it into an appropriate language of the participating country (if that language is not English).
(4) The certificate must be signed by or on behalf of the court and must include a statement as to the accuracy of the information given in it.
The signature may be an electronic signature.
(5) If the restraint order and the certificate are not accompanied by a forfeiture order, but a forfeiture order is subsequently made, it is to be sent to the Secretary of State for forwarding as mentioned in sub-paragraph (1).
Overseas freezing orders
11D (1) Paragraph 11E applies where an overseas freezing order made by an appropriate court or authority in a participating country is received by the Secretary of State from the court or authority which made or confirmed the order.
(2) An overseas freezing order is an order prohibiting dealing with property
(a) which is in the United Kingdom and is terrorist property, and
(b) in respect of which an order has been or may be made by a court exercising criminal jurisdiction in that country for the forfeiture of the property on a ground mentioned in sub-paragraph (3),
and in respect of which the following requirements of this paragraph are met.
(3) The grounds are that
(a) the property is likely to be used for the purposes of a listed offence, or
(b) the property is the proceeds of the commission of such an offence.
(4) The order must relate to
(a) criminal proceedings instituted in the participating country, or
(b) a criminal investigation being carried on there.
(5) The order must be accompanied by a certificate which gives the specified information; but a certificate may be treated as giving any specified information which is not given in it if the Secretary of State has the information in question.
(6) The certificate must
(a) be signed by or on behalf of the court or authority which made or confirmed the order,
(b) include a statement as to the accuracy of the information given in it,
(c) if it is not in English, include a translation of it into English (or, if appropriate, Welsh).
The signature may be an electronic signature.
(7) The order must be accompanied by an order made by a court exercising criminal jurisdiction in that country for the forfeiture of the property, unless the certificate indicates when such an order is expected to be sent.
(8) An appropriate court or authority in a participating country in relation to an overseas freezing order is
(a) a court exercising criminal jurisdiction in the country,
(b) a prosecuting authority in the country,
(c) any other authority in the country which appears to the Secretary of State to have the function of making such orders.
(9) References in paragraphs 11E to 11G to an overseas freezing order include its accompanying certificate.
Enforcement of overseas freezing orders
11E (1) Where this paragraph applies the Secretary of State must
(a) by a notice nominate a court in England and Wales to give effect to the overseas freezing order,
(b) send a copy of the overseas freezing order to the nominated court and to the Director of Public Prosecutions,
(c) tell the Director which court has been nominated.
(2) The nominated court is to consider the overseas freezing order on its own initiative within a period prescribed by rules of court.
(3) Before giving effect to the overseas freezing order, the nominated court must give the Director an opportunity to be heard.
(4) The court may decide not to give effect to the overseas freezing order only if, in its opinion, giving effect to it would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)).
11F The nominated court may postpone giving effect to an overseas freezing order in respect of any property
(a) in order to avoid prejudicing a criminal investigation which is taking place in the United Kingdom, or
(b) if, under an order made by a court in criminal proceedings in the United Kingdom, the property may not be removed from the United Kingdom.
11G (1) Where the High Court decides to give effect to an overseas freezing order, it must
(a) register the order in that court,
(b) provide for notice of the registration to be given to any person affected by it.
(2) For the purpose of enforcing an overseas freezing order registered in the High Court, the order is to have effect as if it were an order made by that court.
(3) Paragraph 7 applies to an overseas freezing order registered in the High Court as it applies to a restraint order under paragraph 5.
(4) The High Court may cancel the registration of the order, or vary the property to which the order applies, on an application by the Director of Public Prosecutions or any other person affected by it, if
(a) the court is of the opinion mentioned in paragraph 11E(4), or
(b) the court is of the opinion that the order has ceased to have effect in the participating country.
(5) Her Majesty may by Order in Council make further provision for the enforcement in England and Wales of registered overseas freezing orders.
(6) An Order in Council under this paragraph
(a) may make different provision for different cases,
(b) is not to be made unless a draft of it has been laid before and approved by resolution of each House of Parliament."
4 In paragraph 14 of that Schedule (enforcement of orders made in designated countries), in sub-paragraph (2), after the second "order" there is inserted "(other than an overseas freezing order within the meaning of paragraph 11D)".
5 In paragraph 45 of that Schedule (Insolvency: general provisions), in paragraph (c) of the definition of "restraint order"
(a) "external restraint" is omitted,
(b) after "of" there is inserted "paragraph 11G or of"."