Mrs. Brooke: I want to ask a question, although it might be naive. In the broadest sense, any item can be counted as cash, in so far as it can be part of transactions, yet there are final definitions of legal tender within the country, which would not include Scottish euros and so on. Is it not a case of being able to define whether something is cash or property after seizure? I shall give an example. A hoard of gold sovereigns would be easy to use for transactionsfar easier than old francsbut I imagine that they would be classified as property rather than money, although they could perform the function of cash in our society. Is the definition of what is cash and what is property tied in to the legislation in that way, so that the item will be caught either way?
Mr. Carmichael: I do not intend to engage with this point in relation to amendment No. 321, as I fear that we are back with the angels on the head of what must now be a rather blunt pin, but I have one query about amendment No. 322. I admit that it is esoteric and, in practical terms, is not likely to constitute a massive problem, but will the Minister explain why, if there is a separate enforcement procedure and structure for Scotland, orders to be made under new subsection (7) must be made by a Minister of this House, albeit in consultation with a Minister of the Scottish Parliament? If a Scottish Minister, especially the Lord Advocate, felt that it was necessary to specify some
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manner of monetary instrument as cash, power should be given to that Minister to do so without having to come cap in hand here first.
Mr. Ainsworth: On the negative-positive issue, the hon. Member for Beaconsfield would have to persuade me that abuse of the power was possible in the way that he suggests before I would agree that we should move to the negative. The problem is about definitions of cash. I cannot see that there is scope for the power to be used as he suggests.
I do not want to appear complacent about the point made by the hon. Member for Mid-Dorset and North Poole (Mrs. Brooke), and I shall cover the point made by the hon. Member for Orkney and Shetland (Mr. Carmichael) as well. We are not dealing with cash and legal tender alone. We are trying to deal with items that have instantly tradeable value, such as building society cheques, banker's drafts, foreign currency and so on. We think that the definition is right, and that we have covered what we needed to.
The hon. Member for Beaconsfield, who has obviously followed the matter more closely than me, says that the phased-out currencies still have value. I am advised that while they do, they are still covered by the scheme. I do not want to be complacent, but if the franc has a tradeable value for a period, it will be covered by the scheme. Turning to the point of the blunt pin, I cannot see too many criminals being able to pull drug deals, or anything else, with francs by the time the Bill gets on the statute book. None the less, it is a possibility that I believe has been covered.
Mr. Wilshire: The hon. Member for Mid-Dorset and North Poole has raised a point that the Minister should consider further in relation to sovereigns. I did not refer to sovereigns when I mentioned krugerrands. My understanding of sovereigns is that they are legal tender, but worth much more than their face value, as are crowns. If the administrator has to sell seized property to pay his expenseswe dealt with that subject previouslyand tries to sell coins of that sort, what value does he attribute to them? Does he regard a sovereign as having a face value of £1, or as property worth whatever price he can get for it at auction?
Mr. Ainsworth: We are getting to the subject of what is cash and what is tradeable. Items that clearly have a face value, are tradeable at that face value and can be paid into an account, and on which interest can be calculated, are money, whether they take the form of a building society cheque, a banker's draft or cash itself. When we move on to antique coins, gold coins and other such items, there is no clear value. At that point, such items become property, and are not necessarily subject to the provision.
Mr. Wilshire: With respect, I suggest that the Minister checks on the status of the sovereign. Sovereigns are still issued with a face value of £1 and are legal tender. They can be considered to be worth £1, but the value of the gold is much higher than £1. The Minister must clear the matter up. Will he treat that coin as having its face value of £1, or its real value?
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Mr. Ainsworth: I think that it is to be treated as having its real value, and would be classed as property. If I am wrong I shall inform the hon. Gentleman, but I am not aware that there are many organised crimes paid for and funded by stashes of sovereigns. I may be being naive. Something with a value well above its face value is property, not cash.
On the point made by the hon. Member for Orkney and Shetland about Scotland, I wish that my hon. Friend the Minister of State, Scotland Office were here. I honestly do not know the answer. The Scottish Parliament has given us the ability to bring in the legislation, and if orders affect the legislation that applies to Scottish constables, it will want to be consulted. I shall clarify that with the hon. Gentleman as soon as I am able.
Amendment agreed to.
Amendment made: No. 322, in page 167, line 35, leave out subsection (7) and insert
'(7) Cash also includes any kind of monetary instrument which is found at any place inthe United Kingdom, if the instrument is specified by the Secretary of State by an order made after consultation with the Scottish Ministers'.[Mr. Ainsworth.]
Clause 288, as amended, ordered to stand part of the Bill.
Mr. Grieve: I beg to move amendment No. 452, in page 168, line 3, leave out from 'approval' to end of line 4.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 408, in page 168, line 5, leave out from 'officer' to the end of line 6.
Amendment No. 409, in page 168, line 11, leave out subsections (4) to (9).
Government amendments Nos. 443 and 323.
Mr. Grieve: The amendment relates to powers in respect of prior approval, which we touched on when we discussed clause 288. Then, the Minister explained that the powers in that clause could be exercised only with the prior approval of a judicial officer or, if that was not practicable, the approval of a senior officer. Failing that, there are certain other provisions relating to reports on the exercise of powers.
The amendment would require the appropriate approval to be given by no one other than a judicial officer. Thus amendment No. 452 would delete the words
''unless . . . it is not practicable to obtain that approval before exercising the power.''
Amendment No. 408 would restrict the power of giving approval to a judicial officer, and amendment No. 409 would delete the definition of a senior officer and the reference to the reporting procedure that would apply if approval were not given by a judicial officer.
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I do not want to dwell on these issues because we have touched on them already, but we would do well to consider one point. If the searches are carried out in the planned way envisaged in the rules and guidelines, one would expect there to be no difficulty in obtaining the approval of a judicial officer, because the searches would be systematic, targeted and intelligence-led, rather than random. If that is the case, why should provision be made for an emergency procedure?
I ask that particularly because, as has already been said, in exercising pre-existing powers to search individuals or premises, the police or customs officers may come across money that they believe falls within the appropriate category. In those circumstances, one would expect them to be able to lay their hands on that money, at least temporarily, until they could obtain the necessary approval of a judicial officer, because the original intention in seizing the money was to investigate a crime. Therefore I question whether the power needs to be so widely drafted. If the Minister is right, there will not be many circumstances in which it is necessary to exercise the power where there is not ample opportunity for a judicial officer to give the appropriate authority.
Mr. Ainsworth: The Opposition amendments would require judicial approval to be obtained before any search could be conducted under clause 288. The Bill establishes that a senior officer will be able to give that approval if it is not practicable to obtain judicial approval, and recognises that in some circumstances, it may not be practicable to obtain prior approval.
The mandatory requirement to obtain judicial approval would render unnecessary the provisions applying to approval by a senior officer and render obsolete the post of an appointed person and the related provisions. The two Government amendments are minor drafting amendments. As the Bill is drafted, there is a recognition that it will not always be possible for prior approval to be obtained from a judicial officer, or even from a senior officer, before a search is undertaken. There will be occasions on which the circumstances lead an officer to want to search for cash almost immediately. It is important that that officer should be able to conduct that search without prior judicial approval.
It is an unfortunate reality that organising and obtaining judicial approval is a time-consuming exercise. The Government recognise that the search provisions are a significant and intrusive power. The creation of the appointed person to oversee all unsuccessful searches that have been conducted without prior judicial approval is a safeguard to make such searches more transparent and subject to independent scrutiny. If, for example, a customs officer were in a hotel room to seize drugs and suspected that the person present was the seller of those drugs, he might want to search that person and the hotel room for connected cash.
The hon. Gentleman is asking us to encourage the forces of law and orderconstablesto try to guess all the circumstances that might arise in any operation in which they are going to be involved, and to obtain prior judicial approval for those circumstances. I ask
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him to accept that that is not reasonable. Either it will be ineffective, or in the course of an operation cash will be found that should be forfeited, but the seizure will not have been given prior approval, so the cash will go unseized, if the amendment is accepted. Alternatively, we shall burden both the police and the judicial authorities with countless prior approvals that subsequently prove not to be necessary.
We hope that, in the overwhelming majority of cases, the proposed structure will mean that prior judicial approval will be the route down which the constable or customs officer goes. However, we should not ask such officers to foresee every single opportunity and render them unable to seize cash when it has not been possible to obtain prior judicial authority. Will the hon. Member for Beaconsfield accept that that is the sensible way to create a balance between imposing over-burdensome procedure and allowing cash that should be forfeit to go unseized?
There is an obligation for the constable or customs officer to obtain prior judicial authority whenever it is practical to do so. He will have to justify the fact that he did not, either when the forfeiture gets to court within the two daysif he takes the matter straight to courtor, if the cash is forfeit and handed back, to the appointed person who is to report to Parliament. That should have the effect of discouraging searches that have not been given prior judicial authority, except those that are clearly justified.
Of the Government amendments, No. 443 is a minor drafting amendment. Subsection (4) makes provision as to who qualifies as a senior officer for the purposes of giving prior approval for searches under clause 288. In the case of customs, the clause currently provides that the commissioners are to designate a rank of customs officer equivalent to that of a senior police officer, subsequently defined as an officer of at least the rank of inspector. Although in the context the commissioners could only meaningfully be the commissioners of Customs and Excise, the amendment will ensure that there is no room for doubt on that point. It will also ensure consistency with clause 294, where the full title is already used.
Amendment No. 323 is another minor drafting amendment. Subsection (6) of clause 289 in certain circumstances requires the officer or constable who carries out a search without prior judicial approval to give a written report to the appointed person. Amendment No. 323 will put it beyond doubt that the officer referred to is a customs officer. I commend the Government amendments to the Committee.
I ask the hon. Gentleman to consider his amendments and to accept that they would mean on the one hand the inability to act, and on the other the imposition of unnecessary burdens with regard to prior judicial approval. For those reasons I ask him to withdraw his amendment.