§ 7.20 p.m.
§ The Attorney-General (Lord Goldsmith) rose to move, That the draft order laid before the House on 25th November be approved [3rd Report from the Joint Committee].
§ The noble and learned Lord said: My Lords, I should inform the House that the Joint Committee on Statutory Instruments approved the draft order last Tuesday, 3rd December and that a Standing Committee in the other place approved it this afternoon.
§ I hope that your Lordships have had the opportunity to study the explanatory memorandum and the draft code of practice which provide background on the need for and content of the draft order.
§ Your Lordships will recall that the Proceeds of Crime Act contains a comprehensive package of measures focusing on the recovery of criminals' proceeds and wealth. Included in the provisions is a scheme for the recovery of cash in summary proceedings. These can be found in Chapter 3 of Part 5 of the Act. The draft order before the House brings into operation a code of practice connected to that scheme.
§ Provisions relating to the recovery of cash are not new. The Criminal Justice (International Co-operation) Act 1990 introduced a power for police and Customs officers to seize cash discovered on import or export which was reasonably suspected of being derived from or intended for use in drug trafficking. An application could then be made subsequently in a magistrates' court for the forfeiture of the cash. No conviction was required for the forfeiture of the cash to be ordered. Cash forfeiture proceedings are civil proceedings and the civil standard of proof applies. These provisions were later consolidated into the Drug Trafficking Act 1994, which applied on a UK-wide basis.
§ The Proceeds of Crime Act replaces and extends this scheme to cash related to all unlawful conduct and also provides for the seizure of such cash inland. Like the previous legislation, the Act provides for a minimum amount of cash in respect of which the search and seizure powers may be exercised. My honourable friend 180 the Under-Secretary has made and laid before Parliament the Proceeds of Crime Act 2002 (Recovery of Cash in Summary Proceedings: Minimum Amount) Order 2002, which sets the minimum amount at £10,000.
§ Significantly, police and Customs officers have no existing specific power to search for cash inland. Under previous legislation, Customs officers could rely upon their general powers of search at the borders under the Customs and Excise Management Act 1979. The Police and Criminal Evidence Act 1984 allows police to search for evidence. Cash may be evidence, but not in every case. A specific search power is therefore necessary to support the ability to find and seize cash inland.
§ In recognition of the sensitivity of search powers, this new search power is subject to a number of safeguards, including a statutory code of practice. The code is required before the search powers can come into operation. Section 292 of the Act requires that the code be made in connection with the exercise of the search powers by a constable or Customs officer. The code has been drafted and the draft order before the House will bring that code into operation.
§ An initial draft of the code was published for public consultation on 23rd August. That consultation period ended on 15th November. Revisions have been made to the draft code in the light of the comments received, and a summary of the responses to the draft code and the Government's comments are in the Library.
§ The draft code has a short introduction. It places an obligation on the police and Customs to ensure that the code is publicly available for consultation. The Government believe that the availability of the code will ensure that the operation of the power will be open to public scrutiny and accountability.
§ The draft code draws particular attention to the officer's obligations under the Human Rights Act and the Race Relations Act. I am satisfied that this order and the code are compatible with both of these Acts. It is vital that the rights and protections conferred by these Acts are uppermost in an officer's mind when he is considering and exercising the search power. The draft code defines the limitations of the search power and gives guidance on the objective tests required for forming "reasonable ground for suspicion" before a search can be undertaken.
§ The draft code also provides guidance on the procedure required when an officer is seeking judicial prior approval, as provided in Section 290 of the Act. Rules have been made by my noble and learned friend the Lord Chancellor under which a justice of the peace can hold an application hearing in private away from the court. This will allow flexibility in arranging applications quickly and will encourage officers to use this route rather than their own administrative powers of search.
§ "Reports to the 'Appointed Person" gives guidance on the requirement in Section 290 of the Act to report to an appointed person and sets out the related procedure. A report will be required to be sent to the appointed person where searches were not approved by a justice of the peace and cash was either not seized 181 or not detained for more than 48 hours. The appointed person is an independent person overseeing the operation of the new search power.
§ The remaining sections of the code deal with the steps prior to a search, the actual search of both persons and premises and the officer recording his actions. They ensure that officers conduct searches in a reasonable manner and provide several limitations and safeguards on that power. For example, paragraph 32 sets out the limitations of a search, disallowing the forcible removal of objects next to the skin, and paragraph 36 requires that searches should be performed at a reasonable hour where practicable.
§ The draft code is intended to be self-explanatory and easily understood and any further detail I give would merely be repetition of the document.
§ In summary, I am satisfied that the draft code sets out clearly the processes and safeguards required for the operation of the new search power. I hope that having more than 4,500 words shows the detail of best practice that we are imposing on officers and satisfies noble Lords that searches will have the required safeguards as checks on the power.
§ Because of the nature of the draft order I have spoken more to the draft code rather than to the order. The only further point specifically on the order is that it brings the code of practice into operation on 30th December. My honourable friend the Under-Secretary has signed a commencement order bringing the cash scheme into force on that date.
§ I commend the order and the draft code of practice to the House.
§ Moved, That the draft order laid before the House on 25th November be approved [3rd Report from the Joint Committed.]—(Lord Goldsmith.)
§ Viscount Bridgeman
My Lords, we on this side of the House support the order which, as the noble and learned Lord, Lord Goldsmith, made clear, effectively gives teeth to the power to seize cash conferred under the Proceeds of Crime Act 2002.
We note that the language and structure of the order are based on similar codes of practice under the Police and Criminal Evidence Act 1984, where these procedures for search are largely proven. I certainly welcome the assurance of the noble and learned Lord that the code complies with the Human Rights Act and with the Race Relations Act.
We are pleased to note the requirement for prior judicial authorisation wherever possible; the requirement for a report giving reasons for any action where such approval has proved impracticable—one presumes that that will be largely on grounds of time considerations; and, indeed, for the requirement that any search operations must be fully reported.
We also note that any searches, whether of persons or of premises, must be proportionate. That leads me to the question that I asked the noble and learned Lord, Lord Falconer, earlier. The whole issue of proportionality is subjective. I should welcome an 182 assurance that this is being kept under review. There are constant changes, not only in the technology but also in the increasing sophistication and resourcefulness of criminals in making use of it; and also in terms of the increasing globalisation of crime. With that request for an assurance, we on these Benches welcome the order.
§ 7.30 p.m.
§ Lord Goodhart
My Lords, the order is to a large extent dictated by the terms of the Proceeds of Crime Act. It is very much in line with what one would have expected under that Act. Certainly, we on these Benches have no quarrel in principle with the proposals in the order. But I am afraid that, having looked through the code of practice, I am going to make a few rather tedious points on the drafting—which is less than perfect and not as good as one would have hoped.
First, paragraph 9 reads:Where the power to search a person is exercised the Act requires that the officer or constable"—the words "or constable" are unnecessary, since the word "officer" has already been defined as including a constable—may require the suspect—so far as he thinks necessary or expedient—to permit (a) a search of any article he has with him; or (b) a search of his person".It is provided that an officer may detain the person for so long as is necessary to carry out the search.
This implies that detention is possible where the search is carried out under either (a), the search of an article, or (b), the search of the person. In fact, the authorising provision of the Act—namely, subsections (3) and (4) of Section 289—makes it clear that detention is only possible under (b), that is, for the purpose of the search of the person, and that there can be no detention for the purpose of searching an article that the person has with him. Perhaps the noble and learned Lord the Attorney-General would comment on that.
The third sentence in paragraph 10 is ungrammatical and reads extremely awkwardly.
Paragraph 22 states:The report must be submitted to the independent person appointed by the Secretary of State"—Simply by way of comment, I think it slightly unfortunate that one is left with the statutory phrase "the appointed person", which I assume is due to the fact that the "appointed person" has not yet been appointed. It might have been easier for people reading the code to understand it if someone had been appointed already and could be referred to by name in the code—subject, of course, to it being made clear, as with the minimum figure of £10,000, that the information is subject to change.
Perhaps more importantly, the second sentence of paragraph 22 says that,Reports in respect of searches undertaken by customs officers in Scotland, must be submitted to the independent person appointed by Scottish Ministers".183 It is clear from Sections 290 and 291 of the Act that reports not only by Customs officers but by police officers in Scotland must be submitted to the independent person appointed by Scottish Ministers. So, in so far as the reference is specifically and exclusively to Customs officers, the statement in paragraph 22 is incorrect.
Moving on to paragraph 35, I am afraid that once again the sentence is ungrammatical.
I ask the noble and learned to comment on a point in the fourth sentence of paragraph 36, referring to rights of entry. It states:It would also include a search carried out when an officer has exercised a power of entry conferred by a search warrant granted in some other connection or power of entry conferred under some other legislation such as the Police and Criminal Evidence Act 1984 or Customs and Excise Management Act 1979 and circumstances subsequently lead him to believe that there is cash on the premises".I should have thought that where a right of entry was conferred under some other statute it would be legitimate to carry out a search even if the officer conducting the search believed before entering the premises that cash might be there; whereas paragraph 36 suggests that it must be circumstances subsequent to the lawful entry which lead him to believe that there is cash on the premises.
On a further grammatical point, in paragraph 40 the expression,the object of the search",is given quite different meanings in two successive sentences. The first sentence states:Premises may be searched only to the extent necessary to achieve the object of the search".The paragraph then goes on to say:A search may not continue once the object of the search has been found"—where, equally plainly, the term means the thing that you are looking for. I also wonder whether in the second sentence "the object of the search" has any obvious meaning when you are talking about cash, because cash is not normally a single object but a whole series of objects and it may be difficult to be certain that you have found all the cash that you are looking for.
Those points are, as I said, rather tedious. In making them I do not intend to suggest that we do not fully support the purposes behind the order. I await the noble and learned Lord's reply with interest.
§ Lord Goldsmith
My Lords, I am grateful for the noble Lord's last sentence. I was beginning to wonder in the light of what he had said previously.
I am grateful for the general support for the code that came from the noble Lord, Lord Goodhart, and the noble Viscount, Lord Bridgeman.
I turn first to the comments of the noble Viscount. He is absolutely right in saying that this follows a precedent set by other codes, particularly PACE codes. There is, of course, an important difference. The PACE codes relate to criminal matters, whereas the provisions in the Proceeds of Crime Act are civil. 184 But in terms of following the precedent that they have established, in terms of setting up clearly, in order, the way in which these powers should be exercised, we have drawn on that and the noble Viscount is right to draw that comparison.
He asked whether it was intended to keep under review the operation of the code. Again, he is absolutely right in saying that we have to take account of the fact that there are constant changes in the ways in which criminal conduct is committed, and we have to keep up to date with those. I can assure him that the operation of the code will be kept under review.
The noble Lord, Lord Goodhart, will forgive me if I do not pick up on his grammatical points. I am sure that they are all good—although I took exception to one or two and was not sure that I agreed with them. But never mind. It is not possible to amend the code at this stage. Plainly, the noble Lord's points will be taken into account when there is a revision of the code. Dare I say that there was an opportunity to comment previously? Had those points been made at an earlier stage, they would no doubt have been looked at and either accepted or not as the draftsmen thought right.
I shall deal with the noble Lord's specific points. The first question, related to paragraph 9, was on the power to detain so that a search can take place. The noble Lord is right in saying that under Section 289(3) of the Act, the power to detain applies only where there is a search of a person, not where there is a search of an article. The code says that the person may be detained,so far as he thinks necessary or expedientto carry out the search. If the item to be searched is a bag, it is not necessary to detain the person. Strictly speaking, the code is right, because of that important qualification on the power. I assure your Lordships that that point will be made explicit in a Home Office circular that will be circulated to police and Customs before the recovery of cash scheme begins so that there is no misunderstanding about the power to detain.
The second point, related to paragraph 22, was on reports to be made by Customs officers in Scotland. It states that they must be submitted to a "person appointed", who will be appointed by Scottish Ministers. The noble Lord is not right on this point. It is a devolution issue. The draft code covers Customs officers throughout the United Kingdom. In respect of police officers, a separate code is issued by Scottish Ministers. The difference between the two is that Customs matters are reserved under the Scotland Act 1998 whereas policing matters are not. That accounts for the difference in treatment between them.
The noble Lord also questioned whether the appointed person had yet been appointed. He has. A panel under Home Office chairmanship, which included a circuit judge and an independent assessor, met on two days in November to consider candidates from a wide field. My honourable friend the Under-Secretary has invited Mr Andrew Clarke to take up the post on 30th December.
The noble Lord referred to paragraph 36 of the draft code. The intention is to prevent a situation in which anyone would misuse the powers of entry given in 185 other legislation to find cash. In the majority of cases, police or Customs officers will come across cash when they are lawfully on the premises for a different purpose. It therefore seemed right to emphasise in the code that those other powers were not to be used for the purposes of searching for cash. The Act does not provide any power of entry to premises to search for cash itself. The powers can be exercised only when someone is on the premises.
I hope that those answers will satisfy the noble Lord. I am grateful for the support of the noble Lord and the noble Viscount.
§ On Question, Motion agreed to.