Proceeds of Crime Act 2002 (Investigations: Code of Practice) (England and Wales and Northern Ireland) Order 2016

Wednesday 10th February 2016 Grand Committee

Motion to Consider

17:41

Moved by

[Lord Ashton of Hyde]

That the Grand Committee do consider the Proceeds of Crime Act 2002 (Investigations: Code of Practice) (England and Wales and Northern Ireland) Order 2016.

Relevant documents: 14th Report from the Joint Committee on Statutory Instruments

[Lord Ashton of Hyde (Con)]

My Lords, with the Committee’s permission I intend to speak all the orders in my name en bloc. The Proceeds of Crime Act 2002 —or POCA—is a vital and effective tool in the fight against crime; criminals must not financially benefit from their criminality. The Government stated categorically in the Serious and Organised Crime Strategy that we would attack criminal finances by making it harder to move, hide and use the proceeds of crime. In delivering that commitment, we have provided strengthened powers in the recent Serious Crime Act. The matter before us today relates to commencing those and other powers to assist in the enforcement of court orders and recover the proceeds of crime. The powers referred to cannot be commenced until associated codes of practice are in place.

First, it is important to note that many of the powers have already been commenced in England and Wales as of 1 June last year. In order to extend this commencement, as is necessary, to Scotland and Northern Ireland, we are required to make codes of practice that encompass those jurisdictions and bodies using the powers there. The codes will largely replicate those that were considered and approved by your Lordships last year.

We plan to commence all the remaining powers in the Proceeds of Crime Act throughout the UK on 1 March, in so far as they are not already in force. To achieve that, we need to issue the codes of practice that will provide guidance on the use of the powers throughout the UK. Once commenced, the new powers will give officers important new tools for the recovery of criminally obtained assets. The codes before the Committee build on previous codes issued under the Proceeds of Crime Act. It is also of note that they closely follow those issued more widely to police officers under the Police and Criminal Evidence Act 1984. The codes set out established and agreed procedures and safeguards in the operation of powers, and they ensure that the powers are used in a targeted, consistent and effective way, thus providing vital reassurance to the public that the powers are being used appropriately and proportionately.

The five orders before this House bring into force a number of codes of practice that provide guidance on the use of various powers under POCA. Four current codes need updating and a new code is required as a consequence of amendments made to POCA by primary legislation already passed by your Lordships’ House. I draw the Committee’s attention in this respect to the Policing and Crime Act 2009, the Crime and Courts Act 2013 and the Serious Crime Act 2015.

The codes were subject to a full public consultation late last year and have been amended in the light of representations. It is important to note that the Scottish Government and the Northern Ireland Assembly will be considering codes that fall within their competence due to the devolution position.

17:45

The amendments to POCA that require codes of practice providing guidance on their use are: the power to allow search of vehicles for criminal cash; search and seizure powers to prevent the dissipation of property that may subsequently be used to satisfy a confiscation order; expanded confiscation investigation powers to allow the tracing and identification of assets following a confiscation order; expanded civil recovery investigation powers; and a change of court jurisdiction so that the Crown Court rather than the High Court will make investigation orders in relation to cash forfeiture cases. It is important to note for the terms of the debate today that we are not debating the powers themselves but are considering the codes that give guidance on the use of those powers. I am therefore not going to give a detailed technical explanation of the underlying powers, which have already been passed and received their Royal Assent.

In summary, though, one code—cash searches—governs the use of powers to search for cash suspected to be the proceeds of, or intended for use in, crime. Another two orders give effect to codes of practice governing the use of search and seizure powers to prevent the dissipation of property that may be used to satisfy a future confiscation order made under POCA. These codes also govern the use of the power to detain such property. One of these codes is for England and Wales, the other for Northern Ireland. Another order before the House gives effect to a revised code of practice providing guidance on the use of the powers of investigation by law enforcement officers under POCA. There is a final further code, which relates to the use of the investigation powers by prosecutors.

The orders before this House will bring all the relevant codes of practice into effect, ensuring that effective and up-to-date guidance and safeguards are in place, and enabling full commencement of the POCA amendments that I have described. The use of these powers will be guided by the revised codes of practice. It is worth repeating that the codes are an important safeguard to ensure the targeted, proportionate and effective use of the powers in POCA, balanced against the rights of individuals and communities.

The structure of each of the codes is basically the same. They contain a comprehensive explanation of the law and the considerations that officers should apply when using the powers, and explain the need fully to record and justify their use after the event. I therefore ask that the House approve these orders to give effect to the codes of practice.

[Lord Rosser (Lab)]

I thank the Minister for his explanation of these five statutory instruments, which we are rightly dealing with en bloc. I accept his point that they deal with the issue of a code of practice and guidance, and that they reflect legislation that has already been agreed and passed.

As he said, and as at least one of the Explanatory Memorandums states, the first four orders are made under the Proceeds of Crime Act 2002 and provide that three revised codes of practice and one new code of practice, giving guidance on the exercise of certain functions under POCA, come into operation on 1 March this year. He says that the revised new codes are required because of amendments to POCA made by subsequent Acts of Parliament.

I note with interest that in respect of only one of the codes, paragraph 4.10 of the Explanatory Memorandum says:

“The code has … been restructured to make it easier to read and understand”.

I am not sure whether that applies to all the other codes. While that will no doubt help, have these codes of practice—which, as the Minister said, constitute guidance and reflect the amendments made to POCA—been drawn up with a view to increasing the amounts that should be collected, or property seized, under the 2002 Act, or is it not expected or intended that they will have any impact in this regard? This point may well have been discussed when the original legislation went through. Also, if such an impact is anticipated, what is it likely to be? I do not mean down to the last penny but in general terms.

There is a further Explanatory Memorandum relating to the fifth and last of these orders, which is also made under the Proceeds of Crime Act 2002. Again, it creates a revised code of practice providing guidance on the exercise of certain functions under POCA, which in this case came into operation on 30 November 2015. More specifically, that fifth order brings into operation a revised code of practice for prosecutors in England, Wales and Northern Ireland which replaces earlier codes of practice. As far as I can see, this separate Explanatory Memorandum does not say that the revised code has been restructured to make it easier to read and understand, which is either bad news for prosecutors or means that they are people of exceptional ability who can understand any previous code. I will leave it at that.

[Lord Browne of Belmont (DUP)]

My Lords, I thank the Minister for his comprehensive explanation of the orders. I strongly support the measures contained in the five orders which he has presented to the Committee today. I certainly do not wish to prolong the Committee’s deliberations unnecessarily, so I will not discuss the technical complexities of the legislation in detail. Overall, it appears that the new powers granted to the prosecuting authorities will be effective in ensuring that the law is enforced by removing, as far as possible, any possibility of evasion. At the same time, provision is made for the supervision of the operation of the new rules by the appropriate authorities. In Northern Ireland, for example, I am thinking of the role played by the Northern Ireland Policing Board.

I particularly welcome the new rules concerning the search, seizure and detention of property in Northern Ireland, set out in the eighth item on the Order Paper. It is generally accepted that, unfortunately, the number of organised crime gangs operating in Northern Ireland has increased significantly in recent years. The law enforcement authorities must have the powers to ensure that activities such as money laundering, dealing in illicit fuel and smuggling cigarettes and drugs are no longer profitable enterprises. The new powers of search and seizure should go a long way to eliminate most of the ill-gotten gains from these activities.

I congratulate the National Crime Agency on its effectiveness in tackling serious and organised crime in Northern Ireland since it began operations with full powers on 20 May 2015. Between 1 April and 30 September 2015, the agency recorded 29 disruptions against organised crime groups and high-priority threats in Northern Ireland. It will be fully engaged in delivering the commitment outlined in A Fresh Start: The Stormont Agreement and Implementation Plan.

Does the Minister agree that, in the light of the recent appalling gang-related murders in Dublin, it is essential that the law enforcement authorities in the Republic of Ireland agree to co-operate fully with those in Northern Ireland in taking all necessary steps to bring to an end the cross-border operations of criminal gangs? I fully support these orders and I believe that they will go a long way to thwart the activities of criminal gangs throughout the United Kingdom.

[Lord Ashton of Hyde]

My Lords, I thank noble Lords who have contributed to the debate. I am grateful for the comments from the noble Lord, Lord Browne of Belmont, which reinforce the comments of Northern Ireland Members in the other place when these orders were scrutinised in Committee there. I agree with him that law enforcement agencies should co-ordinate cross-border; that applies not only to the Republic of Ireland and Northern Ireland but further abroad as well, in the rest of Europe. As with so many other things, the world is getting to be a small place, and that includes organised crime so it is essential that effective co-operation takes place.

I am grateful for the support from the noble Lord, Lord Rosser. He asks whether the orders are intended to increase revenue. We are talking about seizing the proceeds of crime, so obviously if the orders are more effective then we will increase revenue, though it is difficult to say exactly by how much.

The wider package of measures that we are commencing across the UK is mostly to do with ensuring that property is available to be recovered, and increasing the effectiveness of tools that are used to enforce the orders made by the courts. I will not go through all those orders and powers, but I think that there has been general support, not just today but previously when they were passed.

On numbers, I cannot predict what we anticipate because, after all, this is covering the proceeds of crime so it is difficult to estimate what crime is going to take place. However, I can say that in 2014-15 we recovered £199 million, which is the best ever total, and in addition denied criminals access to over £441 million in assets. Hopefully, these measures will improve that.

I think that covers most of the points, except for the noble Lord’s comments about the Attorney-General’s order. Obviously that was written by lawyers for lawyers, so perhaps I can leave it at that.

This has been a useful debate. As I say, I welcome the cross-party support. The effect of serious and organised crime can be felt in communities right across the country. The truth is that it can and does wreck the lives of ordinary people. The powers have been agreed and widely supported and these orders will bring all those codes of practice into effect, thus providing effective guidance safeguards as well as enabling the full commencement of the POCA amendments throughout the UK, as described in my opening speech. I ask noble Lords that these orders be agreed to, and I beg to move.

Motion agreed.