§ 26B. Any party to proceedings in which an order for the forfeiture of cash is made by the sheriff under section 26 above may appeal against the order to the Court of Session.".
§ (2) The Act of 1990 shall be further amended as follows.
§ (3) In section 26 (forfeiture of drug trafficking cash), after subsection (3) there shall be inserted the following subsection—
§ "(4) Proceedings on an application under this section to the sheriff shall be civil proceedings.".
§ (4) In section 28 (procedure), the words "or appeals" shall be inserted after the word "applications" in each place where it occurs in subsection (2).
§ (5) In section 30 (forfeited cash to be paid into the Consolidated Fund), the following subsection shall be added at the end—
§ "(3) Subsection (2) above does not apply—
- (a) where an appeal is made under section 26A or 26B above, before the appeal is determined or otherwise disposed of; and
- (b) in any other case—
- (i) where the forfeiture was ordered by a magistrates' court, before the end of the period of 30 days mentioned in section 26A(2); or
- (ii) where the forfeiture was ordered by the sheriff, before the end of any period within which, in accordance with rules of court, an appeal under section 26B must be made.".
§ (6) The amendments made by this section apply only in relation to orders under section 26 of the Act of 1990 made on or after the date on which this section comes into force.'.—[Mr. Maclean.]
§ Brought up, and read the First time.4.18 pm
§ The Minister of State, Home Office (Mr. David Maclean)
I beg to move, That the clause be read a Second time.
§ Mr. Maclean
The new clause inserts two new sections—26A and 26B—in the Criminal Justice (International Cooperation) Act 1990. The new section 26A provides a right of appeal against an order made under section 26 of the 1990 Act for the forfeiture of cash which a magistrates court was satisfied represented the proceeds of drug trafficking. There are currently only limited rights of appeal in England and Wales against such orders, and application for "case stated" can be made on the grounds that the order was wrong in law or in excess of jurisdiction, but the merits of decision cannot be re-evaluated.
The matter was raised by my hon. Friend the Member for Beckenham (Mr. Merchant) and by the hon. Member for Lewisham, West (Mr. Dowd) last year. We have since decided that it would be right to correct the situation. New section 26A will allow any party to the proceedings to appeal to the Crown court—or, in Northern Ireland, a county court—within 30 days of the order being made.
In effect, this right will not apply to prosecutors, as it is an appeal against the forfeiture of the cash. The appeal will take the form of a re-hearing, and the magistrates court will, on the application of the appellant, be able to release some of the cash to enable the appellant to meet his legal expenses for the appeal. The court hearing the appeal may make such order as it considers appropriate, and, if it upholds the appeal, may order the cash, together with accrued interest, to be released. The standard of proof for the re-hearing is the civil standard—the same standard as is applicable in the original hearing.
New section 26B expressly provides a right of appeal in Scotland, to the Court of Session. The rest of the new clause makes the necessary consequential changes to the 1990 Act. Subsection (5) disapplies section 30 of the Act, which provides that forfeited cash is paid into the Consolidated Fund where an appeal is made under section 26A, until the appeal is determined and until the time for making an appeal has expired.
Similar arrangements may apply in Scotland, where the period will be determined by the rules of court. That will mean that the forfeited cash can be retained in an interest-bearing account, pending the lodging and determination on an appeal, when it may have to be returned. That would not be possible if the money went straight into the Consolidated Fund, as is currently required by section 30.
The clause also makes it clear that the proceedings in Scotland under section 26 will be civil. That is necessary in order to ensure that the appropriate Scottish appeal provisions apply.
I think that the House will agree that this is a reasonable and sensible clause, and I commend it to the House.
§ Mr. Alun Michael (Cardiff, South and Penarth)
The Minister always sounds sweetly reasonable when he brings yet more changes to this Bill. What he has said today sounds sweetly reasonable. The remarks that I shall address to this group of amendments will apply also to the next group, and I do not intend to repeat myself.
These are yet further changes which appear to be technical and helpful, but I must warn the House of the dangers of the process that the Bill is going through. This is yet more amendment, accepting points that have been made in criticism, to a Bill that started in the House of Lords, went through all its processes there, has been extensively amended in Committee, for which there is no effective revising period, and how now arrived at this stage.
I am not sure that there is a great deal to worry about in the amendments that the Minister has tabled. He has made it clear that they address issues that have been raised in earlier debates, and that they are designed to be constructive. However, there is a danger in the process of making law on the hoof. Will the Minister assure us that he has burned the midnight oil on this group of amendments to ensure that they are absolutely right? The Criminal Justice Act 1991 is an awful warning to legislators who come to the Dispatch Box with that sort of confidence. I hope that the Minister will think carefully and tell us whether he is that confident.
It is important to make these remarks at the outset of the debate, because we should remind ourselves that the Bill began by dealing only with drug trafficking, insider dealing and money laundering. It has been extended considerably. For instance, it has been extended, with the Opposition's support, to include terrorism, and it has been extended in response to Labour demands on matters such as previous convictions and the unit fines system, which led to a need for amendments to the 1991 Act. However, as will be clear from further debates, the Bill is still a missed opportunity.
This is a very late stage in the Bill's consideration. It started in the House of Lords many months ago and went into a sort of frozen state for several months after it was introduced in the House, when presumably all sorts of midnight oil was burnt in the Treasury, if not in the Home Office. In accepting amendments at this stage, the House should be assured by the Minister that they have been introduced with full and adequate care and consideration.
§ Mr. Maclean
The warnings of the hon. Member for Cardiff, South and Penarth (Mr. Michael) are particularly apposite, not just for this Bill but for any legislation where new clauses are introduced for the first time on Report. I accept that it is not the ideal way to create any legislation. The legislation will be important and will be subject to interpretation by the courts no matter how watertight and unambiguous we think we have made it. The hon. Gentleman quotes the Criminal Justice Act 1991 as a warning. Hon. Members from both sides of the House burned a considerable amount of midnight oil scrutinising that Bill, and they all believed that the system would work well, with its provisions for unit fines and previous convictions. No one, as I recall, popped up to warn that it would be wrong.
§ Mr. Michael
That is a calumny that the Minister continually repeats. The Opposition gave warnings, and I can state that with confidence. Further warnings were 842 given on that issue, which is not before us now, in October, when it seemed that Ministers then in office were rushing to implement it in a way that would bring out faults rather than strengths. I wish that he Minister would not repeat what is not correct but would accept that a foul-up was made—I accept that he has an alibi—by the previous Home Secretary and Minister of State, Home Office.
§ Mr. Maclean
I am not sure how many hon. Members could claim to have an alibi that would stand up in court. I say merely, let us look at the record of voting on the Bill, for which many Members on both sides of the House have many previous convictions to be taken into account. But let us not jump to a discussion that we shall probably have on later amendments.
I take on board the hon. Gentleman's point, but we have checked the clause carefully. I have burnt a little midnight oil considering the clause and many others. I am more reassured to know that my officials and parliamentary counsel have burnt considerably more than I have. We might have liked to make some other technical and difficult amendments, especially on shipping, but we decided that, because they would be so technical and because we could not guarantee that they would be as perfect as we would like, we would not table them. We shall debate that matter in a new Bill in another Session.
I take the general warning on board. I am glad that the hon. Gentleman likes what we are proposing. The amendment is sensible, and I am glad to have his support for it.
§ Mr. Michael Shersby (Uxbridge)
As the House knows, I am parliamentary adviser to the Police Federation of England and Wales. I wish to declare that interest, in case any comments that I may make relate to matters in which it is interested.
New. clause 14 deals with an appeal against an order forfeiting drug trafficking cash. Will my hon. Friend the Minister be kind enough to explain for my benefit the precise way in which that will operate?
I am concerned about the extent to which the new clause could invite an almost automatic appeal. The court may order the release of cash to which the forfeiture order relates as it considers appropriate to enable an appellant to meet his legal expenses. If, consequently, the court allows the appeal, the remaining cash, with any accrued interest, must be released. Will my hon. Friend assure me that the new clause will not encourage automatic appeals against that offence?
§ Mr. Paul Boateng (Brent, South)
In answering the question asked by the hon. Member for Uxbridge (Mr. Shersby), will the Minister say whether the Home Office had discussions with the Lord Chancellor's Department about the implications of the new clause for legal aid applications? For instance, will somebody who appeals against an order made in the magistrates court be able to apply, as one applies in an ordinary appeal from the magistrates court to the Crown court, for legal aid at the magistrates court and the Crown court, or will the legal aid already granted for the magistrates court hearing be extended to cover an appeal, within the relevant period, to the Crown court?
Where will an appellant's application to the magistrates court for legal aid be made, and will any sum forfeited by order of the court be taken into account in determining the applicant's eligibility for legal aid? Is it intended that. in 843 due course, we shall consider amendments to the regulations governing legal aid to enable these issues to be aired?
§ Mr. Maclean
First, I tell my hon. Friend the Member for Uxbridge (Mr. Shersby) that I do not think that automatic or frivolous appeals will be made, as there will always be a risk of an order for costs being made against the appellant if the appeal fails.
The court hearing the appeal can make such order as it considers appropriate, and if it upholds the appeal, it can order the cash, with accrued interest, to be released. Generally, we must trust the court to make the right determination of the amount of cash that it should release. Obviously, we shall keep this matter under constant review. It is not as if there will be very many appeals or very many cases; these are unique cases.
The hon. Member for Brent, South (Mr. Boateng) asked about legal aid. I confirm that discussions have taken place with the Lord Chancellor's Department. Again, we are content that few such appeals and applications will be made. No legal aid will be available in the Crown court, but the proposal allows for the release of cash to meet the costs of such an appeal.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.