Clause 289 - Prior approval

Part of Proceeds of Crime Bill – in a Public Bill Committee am 6:00 pm ar 8 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 6:00, 8 Ionawr 2002

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 order—constables—to 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

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 days—if he takes the matter straight to court—or, 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.