HL Deb 13 May 1991 vol 528 cc1357-62

3.2 p.m.

The Paymaster General (Lord Belstead)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Belstead.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 1 [The scheduled offences]:

Lord Belstead moved Amendment No. 1: Page 1, line 9, leave out ("or Part III") and insert (", III or IV").

The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 4, 26 and 27.

The Committee will be aware that the provisions conferring new powers to investigate terrorist finance which were added in the other place are now found in Clause 57 and Schedule 5 to the Bill. Clause 57 provides that in certain circumstances the Secretary of State may appoint a person other than a police officer to have certain powers of investigation. These powers are in the main set out in Schedule 5.

Experience in Northern Ireland and elsewhere has indicated that it will often be extremely difficult to obtain sufficient evidence against terrorist financiers for offences which specifically relate to their terrorist activities. But the experience is that such criminals and gangsters often fail to comply with their obligations under the general law of the land. The Committee may recall Mr. Capone was sentenced for tax evasion rather than the other violent crimes for which he was undoubtedly responsible. We believe that in the course of investigating terrorist finances authorised investigators are likely to uncover other crimes committed by the terrorists. Where there is sufficient evidence, prosecution ought to follow. But because of the nature of the defendant's activities, there would be a real risk of intimidation of jurors. That is why we propose that any offence arising out of the new powers of investigation should be a scheduled offence. That is the effect of Amendments Nos. 1 and 4.

Whether an offence is or is not charged as a consequence of the use of the provisions in Clause 57 and Schedule 5 is a question of fact. Because the pre-trial procedures for scheduled and non-scheduled offences are different, it is necessary to have some mechanism for making clear at an early stage whether an offence involving finance is to be treated as a scheduled offence. That is why provision is made in Amendment No. 4 for an officer of the RUC not below the rank of superintendent to certify that as a matter of fact a particular offence is charged in consequence of a terrorist funds investigation.

While there is little doubt that by far the majority of offences arising out of the use of these new powers will be closely connected with the emergency, there is at least a theoretical possibility of an authorised investigator uncovering an offence which has nothing to do with the emergency. That is why the Attorney-General will be empowered to certify that an offence which has been uncovered in that way shall not be treated as a scheduled offence. His criteria for granting such a certificate will be the same as those which he applies when certifying-out those offences in Part I of Schedule 1 which are subject to note 1 in that part of the Bill.

We also propose—this is the effect of Amendments Nos. 26 and 27—that any such offence which has not been "certified out" should be a relevant offence for the purpose of the confiscation scheme in Part VII of the Bill.

These amendments will enable those involved in terrorist finance to be brought to justice without the risk of jury intimidation. The power to certify out is an important safeguard which will ensure that those whose offences are unconnected with the emergency will continue to be tried before a jury. I hope that the Committee will feel that that is practical and fair. I beg to move.

Lord Prys-Davies

We very much welcome these four amendments and support them. The noble Lord spent some time explaining Amendment No. 4. In a sense that is a little unusual and perhaps the Minister could go further and explain precisely what will be the role of the police in determining whether or not an offence should be a scheduled offence.

As I understand it, the Government up to now have resisted giving the police a role in deciding whether an offence is to be a scheduled offence or not a scheduled offence. But as I read Amendment No. 4, the police will be given that role, subject to the Attorney-General certifying that the offence should not be treated as a scheduled offence. I listened carefully to the Minister and his words will have to be studied. But I wonder whether he can say any more which will throw light on the precise role of the police in determining whether or not an offence is to be treated as a scheduled offence.

Lord Belstead

The noble Lord is absolutely right to ask the question. There has always been concern expressed whenever it has been suggested that the police might be involved in some way in the process of determining whether or not an offence should be scheduled. But we are dealing here with a matter of fact and not a matter of discretion. The effect of this part of the amendment is that where there is an offence which has become evident as a result of investigative powers under Clause 57 by the use of special investigators using powers which are given to them also in Schedule 5, we propose that any offence arising out of Clause 57 and Schedule 5 shall be a scheduled offence.

As I said, that is the effect of the Amendments Nos. 1 and 4. But the magistrates' court to which the case comes needs to know—from the point of view of considering bail, for instance—whether or not the offence is scheduled. If it is a scheduled offence the magistrates' court will not deal with a bail matter in Northern Ireland, as the noble Lord knows. It is at that point that in this part of the Bill somebody is needed to certify whether the offence coming to the court is or is not a scheduled offence. At that point we have put in Amendment No. 4 which states that a senior RUC officer will certify—not as a matter of discretion but as a matter of fact—that the offence coming before the court arises because of an investigation under Clause 57 and Schedule 5. I hope that replies to the noble Lord's point.

Lord Prys-Davies

Perhaps the Minister can go just a little further. Will there be an arrangement between the police and the Attorney-General for Northern Ireland whereby the police will consult with the Attorney-General and take guidance or steering from him before they decide that this is to be certified in?

Lord Belstead

Once again the noble Lord has every right to probe. We are in Committee. Therefore at this point if there is any matter that I ought to add or change I shall either try to put it right later or write to the noble Lord. However, I am fairly sure that the answer to the noble Lord's point is no. The Attorney-General is in the important judicial position of being able to certify out an offence. That position has existed since scheduled offences began.

It is important that I repeat the point that I made in my opening remarks. In order to bend over backwards to ensure that there is a safeguard, if, despite the fact that a financial offence has arisen because of an investigation under Clause 57 and Schedule 5, the Attorney-General finds that the offence has nothing to do with the emergency, it will be open to the Attorney-General to certify the offence out.

However, I may need to write to the noble Lord on this point. I should have thought that it would not be appropriate for the Attorney-General and the Royal Ulster Constabulary to be in communication on the certifying point about which the noble Lord asks me.

Lord Prys-Davies

I hope that I have made the point clear. Our concern is this. It seems to me that for the first time in connection with scheduled offences, the police are given a semi-judicial role. We shall have to study carefully what the Minister said and decide whether or not we need further clarification.

Lord Belstead

At the risk of being tedious, I do not believe that the noble Lord's final intervention is right. The police are being used as a channel of communication to tell the court that the offence arises because of an investigation under Clause 57 and Schedule 5. A senior police officer will tell the court that as a matter of fact and not as a matter of discretion.

Lord Prys-Davies

I take it that he will be a channel of communication from the Attorney-General's department to the magistrates' court.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Schedule 1 [The Scheduled Offences]:

Lord Belstead moved Amendment No. 2:

Page 51, leave out line 44 and insert: ("(e) paragraph 25B of Schedule 4 (contravention of restraint orders.").

The noble Lord said: I speak also to Amendments Nos. 3, 36 and 49. Amendments Nos. 36 and 49 have the effect of creating new offences of contravening a restraint order granted under Schedule 4 to the Bill or Schedule 4 to the Prevention of Terrorism (Temporary Provisions) Act 1989. The amendments also provide that such offences shall be scheduled offences and relevant offences for the purposes of the confiscation provisions of the Bill. That is the effect of Amendments Nos. 2 and 3.

As the Committee will be aware, the purpose of restraint orders is simply to freeze assets so that those assets are available for forfeiture or confiscation in the event of a subsequent conviction. Such orders are normally granted by the High Court but because of the special difficulties that exist in Northern Ireland an amendment made in the other place provides that in certain closely defined circumstances the Secretary of State may grant such orders.

Breaches of a restraint order granted by a court would under the existing law be dealt with as contempt of court with the result that the maximum period of imprisonment is two years. As the Bill stands at present the same maximum penalty would be available for contravention of a Secretary of State restraint order.

I believe the Committee will fully understand that a maximum penalty of two years would not be adequate to deal with the deliberate flouting of such orders in cases involving terrorist finance. In other words, to be blunt, terrorists would move their money out before the money could be frozen. For that reason the maximum period of imprisonment for the new offences will be 14 years, as proposed in the amendment. That penalty is fully consistent with the no more serious offences which are set out in Clauses 53 and 54 of the Bill: that is, of assisting another to retain proceeds of terrorist-related finance; or concealing or transferring proceeds of terrorist-related activities.

However, it is right that only those who deliberately or recklessly flout such orders should be punished. The new offences accordingly include a defence that the person acted, with lawful authority or reasonable excuse". Where that defence is relied on, it will be for the defendant to make it out only to the civil standard of proof en the balance of probabilities.

I contend that these amendments would both simplify and clarify the law, would rightly provide a statutory defence to protect the innocent, and would provide the courts with an adequate range of penalties with which to deal with persons convicted of the new offences relating to terrorist financing.

3.15 p.m.

Lord Prys-Davies

Again we agree the amendment moved by the noble Lord and those amendments to which he spoke. However, I should like to have a further explanation of Amendment No. 36, which increases the penalty on indictment for contravention of a restraint order from a two year sentence to a 14 year sentence. I hope that the Minister will agree on consideration that we should have an explanation as to why 14 years was not considered necessary when the Bill was presented to Parliament last November. The Government were then content with a two year sentence.

I happily go along with a 14-year sentence. Indeed the last impression I wish to give is that we wish to go soft on such offenders. But we are entitled to an explanation as to why the Government did not consider such a penalty three months ago.

Lord Belstead

I do not know that I have a particularly good answer to that question because of the lengthy time that the Bill was in another place. However, in my opening remarks I stated that this maximum penalty of 14 years for such an offence would be on all fours with other offences in the Bill. I drew the attention of the Committee to Clauses 53 and 54 of the Bill. Clause 53 relates to assisting another to retain proceeds of terrorist-related activities. Clause 54 relates to concealing or transferring proceeds of terrorist-related activities. This amendment relates to flouting of restraint orders. I can think of nothing more to drive a coach and horses through the confiscation provisions than making it easy for a terrorist, who is liable to have Part VII of the Bill visited upon his head—in other words confiscation—to move the money away to another jurisdiction.

For flat reason we believe that the maximum penalty ought to be on all fours with, for instance, Clauses 53 and 54.

Lord Prys-Davies

I thank the noble Lord for that explanation. It does not answer my curiosity as to why such provision was not considered three or four months ago.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 3: Page 52, line 15, leave out ("8(4)") and insert ("8A").

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 4: Page 53, line 13, at end insert:

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