CASES IN WHICH RESTRAINT ORDERS AND CHARGING ORDERS MAY BE MADE (Hansard, 18 February 1986)

§ The Parliamentary Under-Secretary of State for the Home Department (Mr. David Mellor)
I beg to move, That the clause be read a Second time.

§ Mr. Speaker
With this it will be convenient to take Government amendments Nos. 8 to 17.

§ Mr. Mellor
Perhaps I may set the scene for this afternoon's discussion. The Bill is supported by hon. Members on both sides of the House. It received an enthusiastic Second Reading and went into Committee. The evidence of the considerable good will that flows towards the Bill is the fact that the Bill completed its Committee stage in two sittings.
A number of significant issues were raised during those debates, and I gave a range of undertakings. I said that the Government would reflect on those issues and return to them on Report. That will be done either by amendments or by explanation as to why, in our judgment, amendments were not moved or, on reflection, were not desirable. The fruits of that reconsideration are in the two new clauses and a number of amendments in my name which we shall deal with this afternoon. 197 There are certain other matters which were the subject of detailed discussion in Committee but which are not to be found in any of the amendments. I should like to take the opportunity on Third Reading to deal with the reasons why those matters have not been canvassed. I shall explain why we have, on reflection, decided that no change is needed or, as a result of further consideration, that it is not practicable at this stage to conclude our deliberations. I ask the indulgence of the House. I suggest that these matters should be addressed to another place. Of course, we would have the opportunity to reconsider the issue when the Bill returns.
In that context I mention clause 15 and the precise terms of the new laundering offence which were the subject of a good deal of discussion. Also, on Third Reading, I should like to consider the position in Scotland, which was of interest to a number of Scottish Members. The problems are first, the applicability of the Bill to Scotland and, secondly, the extent to which Scottish law will need to be changed to reflect the changes that have been made in England and Wales. It has not been possible simply to apply the provisions of the Bill to Scotland, because the Bill draws on the established parts of the English and Welsh legal system which are not common to the different legal system in Scotland. Some kind of dovetailing must be effected between the two systems, and that has been the subject of further active consideration.
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Hon. Members may recall that last Friday week a private notice question was raised by the right hon. Member for Manchester, Gorton (Mr. Kaufman), who leads for the Opposition on home affairs matters. He asked about cocaine sniffing kits and invited the Government to give urgent attention to this matter. In response not only to that question, but to the obviously very widespread feeling in the House, I said that action should be considered urgently to clarify whether any provision in the present law could properly deal with this problem. In the event that the answer to that was in the negative, I said that we would consider whether a new provision could be drafted that might be suitable for incorporation in the Bill.
We have taken those discussions forward and further progress has been made. I shall describe that on Third Reading. I hope that there will be an opportunity for some discussion not outwith the rules of order as to whether it might be possible to make such changes to the Bill in the other place as would give effect to the widespread public feeling against retailers who seek to exploit the awful habit of taking cocaine by selling kits to facilitate that habit.
New clause 2 is a major new clause designed to meet an important point made in Committee by a number of hon. Members. I particularly mention the hon. and learned Member for Montgomery (Mr. Carlile), whom I am pleased to see in this place. In Committee and on Second Reading it was suggested that restraint and charging orders should be available before the institution of proceedings. As it stands, the Bill provides that the appropriate point at which application should be made to a High Court judge is either when a warrant for arrest has been granted, even though the application might be made before the warrant was executed, or, when arrest took place without a warrant, at that point.
198 It was forcefully stated by the hon. and learned Member for Montgomery and other hon. Members that it was inappropriate to tie this arrangement so closely to the issue of proceedings, on the basis that that might be rather late in the day to trigger an important power in the Bill. It might be at such a late stage that the potential defendant, the suspect, would have the opportunity to do what we know people have done in cases under the present arrangements. When they think that they are liable to be convicted of the offence, they take steps to divest themselves of their property or to move it out of the jurisdiction so that they cannot be touched by the English courts. We wish to address that point. We have rethought our position, and the new clause gives effect to that rethinking.
In practical terms there must be some link with a late stage in the proceedings, for a number of good reasons. First, it is a serious infringement of individual rights that property should be so restrained. That is a valid point and I do not abstain in any way from the enthusiastic advocacy of the need for this power in which I and many other hon. Members have been engaged for many months. However, this power cannot be given lightly because it is an interference with the liberty of the subject. Because this is a serious matter, we have given the power to a High Court judge, not to lesser judges. It will require the judge to take a balanced view as to whether it would be proper to make the order. Plainly, the only basis on which he can determine that it would be proper is if he is satisfied, on the merits, that there is evidence that the individual concerned has been involved in drug trafficking and has benefited from it.
New clause 2(1), which deals with the straightforward situation when proceedings have already been started, is not a matter of concern. Instead, clause 2(2) is the nub of the matter. It says that where proceedings have not started: Those powers are also exercisable where the court is satisfied—

(a) that an information is to be laid under section 1 of the Magistrates' Courts Act 1980 that a person has or is suspected of having committed a drug trafficking offence, and

(b) that there is reasonable cause to believe that he has benefited from drug trafficking."

The police will be able to go to court at the point at which they have their tackle in order and are ready to move against the suspect. That has the advantage of pushing the application a day or two back from the point of arrest so that leakage of information is less likely. I know that my hon. and learned Friend the Member for Fylde (Sir E. Gardner) has, in the work that he has done on the Bill, placed enormous emphasis on the need for there to be due process, even though he has rightly been calling for new powers. We do not want to take advantage of the public climate to introduce legislation that does not have the appropriate checks and balances. We move a few days back from the original decision, but at the same time the judge will not want to make this order unless he is satisfied that the evidence exists.
I hope that I have met the spirit of the lively discussions that took place in Committee and that the new clause will commend itself to the House.

§ Mr. Alex Carlile (Montgomery)
I shall not delay the House for more than a few minutes. I am grateful to the Minister for considering and producing so quickly a new and satisfactory provision that brings the civil type Mareva 199 injunction powers into the criminal jurisdiction relating to drugs. It is crucial that the police should have the opportunity of freezing the assets of the suspect before they move in to make the arrest. We shall find that the use of that power, supervised as it will be by a High Court judge, will lead to the seizure of substantial assets that would not otherwise have been seized. It will have the additional advantage of leading to the obtaining of important evidence that might not otherwise have been obtained against the suspect. 'Therefore, I hope that hon. Members will support the new clause.

§ Mr. Mellor
I thank the hon. and learned Gentleman for his welcome for the clause. We took very seriously his point about the Hodgson committee and its recommendation. The committee recommended that the order should be available once there was a prima facie case. We thought that there would be some cases in which the establishment of a prima facie case would be a rather stiffer test and therefore make restraint orders available at a later stage than the institution of proceedings. That is why we chose a formulation which is similar but not identical.
Perhaps I might point out, so that the House will know the care with which we have addressed the matter of creating powers with proper checks and balances, that subsection (4) of the new clause is worthy of consideration. It provides that the High Court must discharge any order it makes if, in the event, proceedings are not instituted within what it regards as a reasonable time. I think that it would be oppressive if a High Court judge granted the order sought on the basis that proceedings were shortly to be brought—I suspect that is the basis under which the power in subsection (2) will be exercised—and then found that proceedings had not been issued. There might come a point when a court would properly want to discharge the order.