Serious Crime Bill [HL]

Debate between Baroness Smith of Basildon and Lord Warner

Tuesday 14th October 2014 Lords Chamber

[Lord Warner (Lab)]

My Lords, I support my noble friend’s amendment. I apologise to the House for not being able to participate in the earlier stages of the Bill. I am doing so now mainly as a result of my membership of the Joint Committee on the draft Modern Slavery Bill, which will be coming to this House later in the Session. The Minister may recall that the Joint Committee made a number of recommendations to improve asset recovery, given what I might describe as the lacklustre performance in this area under the 2002 Proceeds of Crime Act, which was heavily criticised by the Public Accounts Committee.

In the Government’s response to the Joint Committee’s report, they said that the regime in the 2002 Act would be strengthened through this Bill and that they would use what they called,

“a range of non-legislative proposals to improve performance”.

They committed to implementing most of the committee’s legislative recommendations through a combination of this Bill and the Modern Slavery Bill. I have some concerns that the Bill before us does not really cut the mustard in terms of protecting proceeds of crime for the benefit of victims under the Modern Slavery Bill. I do not want a situation where, when this House gets to the Modern Slavery Bill, we are told that we have not done all we should under the Serious Crime Bill.

The key issue for the Joint Committee was the ability of the police, prosecutors and the courts to move swiftly to ensure that there were some assets to confiscate on securing a conviction. This means that when the police are about to act, they have to enable prosecutors to go to the court to try to freeze assets, not only to secure proceeds but to prevent those assets being used for criminal purposes. It is far from clear in the Bill how this is to be achieved. Can the Minister point me in the direction of provisions that effectively allow this early intervention to safeguard assets for confiscation? What work has been undertaken on the non-legislative means, especially with the police and prosecutors, to ensure that the previous practices are put to one side and that their behaviour and conduct are changing more in line with the need to confiscate such assets? What confidence can we have, when we come to consider the Modern Slavery Bill, that the Bill before us has been toughened up sufficiently to improve the prospects of securing the proceeds of crime for the benefit of victims?

Can the Minister also explain why he thinks that the government amendment on third party goes far enough to secure control over third-party holdings of criminal assets? Asking people who are sophisticated criminals to provide information about the transfer of assets to them is hardly likely to produce much in the way of assets for victims. Why cannot the police and prosecutors seek restraint on suspicion of asset transfers or shared use at a much earlier stage in the proceedings? I accept that the transfer of assets abroad poses more difficult jurisdictional issues, but should we not be raising this issue while this Bill is before the House, rather than waiting for the Modern Slavery Bill? Many of us who were on the Joint Committee will assuredly be raising these issues if we do not think that the committee’s report has had an adequate response.

To sum up, I suggest that the Bill leaves too many questions unanswered about a more credible system for restraining the disposal of criminal assets before conviction. That is why my noble friend’s amendment is so helpful; I think it helps the Government off a hook. The Home Secretary has made it clear that the Modern Slavery Bill is a flagship Bill for her, so I do not think that she will be desperately pleased if we get to the consideration of that Bill and find that we have blundered over these provisions when we get there.

[Baroness Smith of Basildon (Lab)]

My Lords, perhaps I should have spoken to my Amendment 4 before the noble Lord, Lord Warner, but I first want to welcome the noble Lord, Lord Bates, to his new position. I know that it is not easy taking over in the middle of a Bill. I congratulate him on the amendments that he has brought forward and on some of the measures mentioned in his comments. I know he listened to the comments that we made in Committee. We spend a lot of time on Home Office matters in your Lordships’ House, and I am sure that we shall spend many happy hours debating this Bill and others.

We debated this issue at some length in Committee because nothing can be more important in this area than ensuring that proceeds of crime legislation is properly enforced. As I said at the time, we support many of the measures in the Bill, but we want to encourage the Government to use this opportunity to make the Bill as effective as it can possibly be. I shall not go into the detail of what we raised and discussed in Committee, other to say that the systems as a whole, including confiscation orders and restraint orders, are not working as well as they should. I think that was the point being made by my noble friend Lord Warner. We are not really recovering enough of criminals’ ill gotten gains. We can do better.

The noble Lord, Lord Bates, will be aware that in Committee my noble friend Lord Rosser and I went into a number of reasons why we feel the system is so ineffective and how it could be improved. These are some of the areas. The evidential threshold for freezing the subjects’ assets is very high and the cost to the CPS can be prohibitive. As we have heard, criminals often move their money overseas. There are those who try to move their money once they know that they are under investigation, and there are sophisticated criminals working here who have complex labyrinths of companies and transactions to try to hide the money. Moreover, confiscation orders are often an afterthought and the penalties for non-payments are not enough of a deterrent. Recoverable assets, including the third-party interests, are not identified early enough. There is a lack of leadership and strong incentives for the agencies involved in applying for and enforcing confiscation orders and, as we have heard, it is incredibly difficult to recover assets from overseas.

At the time, we tabled a number of amendments to address those specific areas. They were probing amendments, as we wanted to try to stimulate the debate and make some progress but also to prioritise those issues on which we felt serious progress could be made in the Bill. I say to the noble Lord, Lord Bates, that at the time I was disappointed by the answers from the noble Lord, Lord Taylor, as the then Minister. I felt that he was not really willing to engage to find ways to improve the Bill. I am delighted by the noble Lord’s comments today that I was at least partially wrong—if not entirely, unfortunately—because the Government have considered one of our amendments and I am pleased to see some amendments put down before us today.

At this stage of the Bill, we did not want to retable a whole raft of amendments that we felt could be helpful but there is still an opportunity to improve matters here. We could do better than what we have here and there is an opportunity to consider further some of the points we raised in Committee. Our amendment is a single amendment, which asks for a wider consultation to be undertaken on a number of ways in which we can improve the system as a whole. We have taken advice on this and spoken to those who are practitioners, have been involved and have given advice. There are things we could do better to really make a difference, so while we support many of the measures here and appreciate the amendment, we could be more effective. The fact that the Government have already taken on some of our suggestions indicates that room for progress remains.

I shall not go into detail on those matters that we have discussed previously but I want to focus on three areas that we think the consultation could take note of and improve. The first is the importance of early disclosure of third-party interests. The value of the money that is eventually confiscated is eroded when people other than the defendant crop up and say, “Actually, that property being confiscated is mine, or partly mine, and not the defendant’s”. Sometimes that will be genuine; equally, it is not unknown for it to be a ploy drummed up by the defendant. The practitioners have told us that this happens because the confiscation process is so lengthy and strung out that it ends up giving criminals plenty of time to be inventive in looking at ways to drum up bogus claims. It is very quick to tell the truth but it takes much longer to be imaginative.

At the moment, third-party claims are not addressed at the confiscation stage in the Crown Court. They get heard afterwards, at a different stage, in the High Court. The Bill seeks to address this by ending the split jurisdiction between the Crown and High Courts. Under the Bill, third-party claims will be determined by the Crown Court at confiscation stage. Clauses 1 to 4 introduce requirements for prosecutors to set out any known details of third-party interests in the statement of information that they provide to the court and for the defendant to detail any known third-party claims in response to the prosecutor’s statement. The court then has the power to determine the extent of any third-party interests in the defendant’s property, prior to making the confiscation order. It is good that that determination will be binding but we went further in our amendments in Committee, one of which suggested giving the court the power to order the defendant to provide information at any time under an order and details of any third-party interests in property.

The Government took that on board and we welcome the amendment the Minister has spoken to. Where a third party unreasonably fails to comply with the order, the court will be able to draw the appropriate inference. In our amendment we suggested a specific time delay of 21 days, but there is no time in the government amendment. What would be the time period here before the court can draw any inference from not providing that information? Will it be set out in secondary legislation or by order, and will they also have to notify the prosecutor of any change in circumstances—which is something we also suggested at the time.

I also assume that there will not be a reciprocal duty on the prosecutor and that the details of the investigation will not have to be disclosed to the defendant, but it would be helpful if that could be confirmed or if the Minister could tell me if I have misunderstood and if that is incorrect.

I also want to check whether the Minister has given any further thought to providing such a power to the court at the restraint stage. When I spoke in Committee, I quoted the impact assessment, which said:

“In many cases third party claims are made at a relatively late stage in proceedings and are deliberately used to frustrate confiscation investigations”.

In Committee, the noble Lord, Lord Taylor, said that it was not appropriate to bring the determination of third-party interests back to restraint stage. The reason he gave was that not all defendants were made subject to a restraint order and not all restraint orders lead to confiscation orders. That is an entirely valid point and we accept that. That is why it would be helpful for the further consultation that we are proposing to work through those points—which are important, crucial and very valid—to make sure that assets are not dissipated before we are even able to do anything about it.

The second point made in Committee which could make a lot of difference is the costs to the CPS of seeking to obtain a restraint order. One of the issues raised with us by practitioners is that when an application is unsuccessful, the prosecution is liable for the legal costs of the defendant. The CPS is undergoing cuts of 27% to its budget over the course of this Parliament. Obviously prosecutors want to minimise any risk of what could be an expensive failure. In Committee, the noble Lord, Lord Taylor, told us that it would not apply in most cases because the orders are obtained ex parte. That is correct, but we have looked into this further and, of course, not all orders are obtained ex parte. If an order is obtained ex parte, it is more likely to be appealed and significant costs can be racked up on appeal.

The amendments that we tabled in Committee suggested that defendants should be able to recover costs at legal aid rates only when an application requires an individual who has succeeded in setting aside a restraint order to pay his or her own costs. But if the alternative is to put the cost risk on to the prosecutor, there will be an inevitable dampening effect on the appetite for large-scale restraining orders, which is clearly not in the public interest. If I recall correctly, the noble Lord, Lord Taylor, said in Committee that the Government would look into this and draw it to the attention of the Ministry of Justice. Has there been any further thinking on this issue? What was the response from the Ministry of Justice?

The third point concerning deficiencies in the system is that we seek further consideration on the enforcement of orders against assets located abroad. This is perhaps one of the most important issues in the whole proceeds of crime debate. Practitioners tell us that this is one of the key problems that they face. Criminals hide their ill-gotten gains overseas. In an FOI response to the shadow Attorney-General’s office, the Serious Fraud Office revealed that £37 million of its £106 million of unpaid confiscation orders is thought to be located overseas.

Criminals are pretty savvy. When they have substantial assets, they often seek to put them where the UK authorities are least likely, and will find it hardest, to recover them. That usually means a jurisdiction with which the UK has no standing mutual co-operation agreements. Even where that is not the case, without mutual recognition of confiscation orders in the jurisdiction where the assets have been hidden, those charged with enforcing the orders effectively have to relitigate the issue abroad. It is hard, it is slow and it is not very effective. There are countries that want to co-operate with us to return criminal assets, but the process by which they would have to do so is quite difficult and drawn out, and they may not have much experience or expertise in doing so.

There is an example on page 5 of the fact sheet that is quite useful in illustrating that. So we have included in the consultation proposal a legal obligation to repatriate liquid assets subject to a restraint or confiscation order that have been removed overseas. When we tabled this in Committee, the noble Lord, Lord Taylor, said that the Proceeds of Crime Act already allows the court to make any order that it believes is appropriate for the purpose of ensuring that the restraint order is effective. But it is not being effective; time and again the issue is the ability to enforce any order.