Baroness Williams of Trafford
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Serious Crime Bill [HL]
Baroness Williams of Trafford Excerpts(10 years, 4 months ago)
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Baroness Hamwee
My Lords, both my Amendments 31A and 31B would delete wording, but they enable me to ask a question. The Secretary of State, and in the case of Northern Ireland, the Department of Justice, have the power to make an order to substitute a different amount for the maximum amount of the confiscation order which can be made by a magistrates’ court. Can the Minister give the Committee an assurance that the Secretary of State will consult before such an order is made? I appreciate that it is not in his gift to give any assurance on behalf of the Department of Justice, but he might be able to make a comment, because I know that the Government have been in touch with the Northern Ireland Assembly.
Baroness Williams of Trafford (Con)
My Lords, as the Proceeds of Crime Act currently operates, a confiscation order may only be made by the Crown Court. As a result, if someone is convicted of an offence in the magistrates’ court and the Bench considers the case is appropriate for a confiscation hearing, the matter must be referred to the Crown Court. This is clearly not the most effective use of resources for handling simple cases. As the noble Lord, Lord Ponsonby, notes, there is already legislation on the statute book that would enable the Home Secretary to modify Part 2 of the Proceeds of Crime Act so as to enable confiscation orders to be made in a magistrates’ court in cases where the criminal benefit did not exceed £10,000. The relevant legislation can be found in Section 97 of the Serious Organised Crime and Police Act 2005.
I can fully understand the frustration of the noble Lord, as a sitting magistrate, in having to refer all confiscation cases to the Crown Court when it would be perfectly possible for straightforward cases to be dealt with in the magistrates’ court, subject to that £10,000 threshold. The noble Lord is all the more frustrated given that the legislation to allow magistrates’ courts to make confiscation orders has been on the statute book for almost 10 years, as he pointed out. The provision in Section 97 of the 2005 Act had, of course, already been on the statute book for five years when this Government came to office. Like the previous Administration, we judged that there were other priorities for improving the asset recovery regime and responding to serious and organised crime, including the setting up of the National Crime Agency. However, we are now working towards enabling magistrates’ courts to make confiscation orders, including putting in place the necessary judicial training from spring 2015.
Given that we are now actively working to implement a scheme empowering magistrates to make confiscation orders, I hope the noble Lord will agree that his amendment, which places a duty rather than a power on the Home Secretary to make such a scheme, is unnecessary. I would be happy to update the noble Lord in the autumn on progress in this area. On that note, I hope that he will be content to withdraw his amendment.
Turning to Amendments 31A and 31B, my noble friend Lady Hamwee indicated that her intention was not to remove the power to vary the £10,000 limit by order but simply to seek an assurance that there would be proper consultation before the order-making power was exercised.
Generally, our approach is that magistrates’ courts should be able to make confiscation orders only in less serious cases. However, there may be situations in which the defendant has been convicted in the magistrates’ court but is potentially liable to an order greater than £10,000. Such a case would still need to be sent to the Crown Court to be dealt with. The order-making power in the clause allows for the £10,000 threshold to be varied if the evidence following implementation shows that the limit is generally too low.
Once we have brought into effect the provisions allowing for confiscation orders to be made in magistrates’ courts, we will keep the arrangements under close review. I assure my noble friend that before any change is made we will consult with the senior judiciary, the Magistrates’ Association and other practitioners as to whether the £10,000 threshold can sensibly be raised.
I also remind my noble friend that this order-making power is subject to the affirmative procedure, so any change would need to be considered and approved by both Houses. I hope that with these comments I have been able to provide my noble friend with the assurance she is seeking.
Lord Ponsonby of Shulbrede
My Lords, I thank the noble Baroness for that answer. I think we got half a step forward. She said that there would be training in 2015 but could not quite go all the way and say when magistrates would actually receive these powers. Nevertheless, as I said, this was a probing amendment. I have got a little bit more information so I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, Amendment 31C is a small probing amendment. There is a definition in the clause of “a country or territory”, which provides that references to them include,
“the territorial sea adjacent to a country or territory”.
My amendment would change that to “territorial waters”. I simply ask how extensive is territorial sea that is adjacent? It must be less than territorial waters. The natural meaning of adjacent, I would have thought, is “very close to the land”. Why is there a limit and what is the limit? I would guess that this is relevant in the context of the clause about computer misuse to damage to such things as wind turbines and oil rigs, and perhaps, in a transport context, ferries and maybe fishing. I am sure there is a list of matters. I am fairly unclear as to what the clause means. If my noble friend can help, so much the better. I beg to move.
Baroness Williams of Trafford
My Lords, I hope I can clarify things to my noble friend’s satisfaction. As we know, cybercrime has a global reach; a perpetrator sitting in their bedroom in London could be hacking into a computer system anywhere in the world. The new offence acknowledges this reality and captures serious damage caused in any country. The clause goes on to define a reference to “country” as including a reference to a “territory” and to,
“(i) any place in, or part or region of, a country or territory;
(ii) the territorial sea adjacent to a country or territory”.
It is the last of these three points that my noble friend’s amendment seeks to address, and she raises a very interesting point.
The Territorial Sea Act 1987 specifies that the breadth of the territorial sea adjacent to the UK is 12 nautical miles. I can therefore reassure my noble friend that this form of words does not mean, as one might usually expect, the sea very close to the coastline, but captures the full 12 nautical miles of territorial water surrounding the UK.
However, the position will not be the same for all countries. Although the 1982 United Nations Convention on the Law of the Sea sets 12 nautical miles as a maximum for territorial waters, some states may have chosen a smaller limit. The boundary line for a country’s territorial waters will be governed by its own laws and by international agreements and conventions. The non-specific language in the Bill reflects this variation. Where the damage is caused in the UK the territorial sea adjacent to the country will be the 12 nautical miles around the UK. Where the damage is in another country we would expect the court to take into account the laws of the country in question, together with any relevant international conventions, such as the UN convention, and any other agreements, in determining the territorial sea’s breadth. I hope that my noble friend has found this explanation helpful and that she will agree to withdraw her amendment.
Lord Elton (Con)
Can my noble friend say whether territorial waters and a territorial sea adjacent to a country are normally co-terminous? My noble friend referred to some countries defining a territorial sea as extending less than 12 nautical miles, but she did not say whether it was less than the territorial waters of the country. I hope that is not too arcane.
Baroness Hamwee
My question was very similar—perhaps I will put it in a slightly different way. The explanation as I heard it is that this is about territorial waters. The language used seems to be that which is used to define territorial waters, whichever country one is talking about. However, it seems that there is no difference between the territorial sea adjacent to somewhere and the territorial waters. To give the Minister slightly more breathing space, perhaps I can also ask her to explain what a “territory” is, as distinct from a “country”?
Baroness Williams of Trafford
My Lords, to answer my noble friend’s question last, and hopefully throw light on my other noble friend’s question: a “territory” is a geographical concept, the land and sea over which a state has jurisdiction. A country’s land mass may be divided into several territories, so the state of a country may also have jurisdiction over far-flung territories. For example, the state of the country of the United Kingdom has jurisdiction over various overseas territories, such as the British Virgin Islands. However, it is a matter for each state to determine, subject to the 12-mile limit. I hope I have not further confused the House.
Lord Elystan-Morgan (CB)
My Lords, I hope to make a marginally relevant point. Is it not the case that by now the whole concept of a belt of territorial jurisdiction, 12 miles out from land, has been outdistanced by the realities of time? Grotius, I believe, was the international lawyer, who, many centuries ago, advocated a three-mile limit. Why? Because that was the range of a powerful cannon in those days. Then, ordnance became more and more powerful. Today, 12 miles is nothing in relation to the power of ordnance. Should not the whole question of the 12 miles therefore be eradicated?
Lord Swinfen (Con)
Before my noble friend answers that question, might I ask whether our gas and oil rigs and our large, hideous windmills that are beyond the 12-mile limit are within our territorial waters? If so, do not our territorial waters in some instances stretch very much further, and have we not claimed areas out into the Atlantic within the continental shelf in order to protect our own oil rights? Is the limit not much greater than 12 miles?
Lord Swinfen
If my noble friend will forgive me, if we have territorial rights that are limited to only 12 miles, who has jurisdiction over the gas and oil rigs that are further out than 12 miles? Are they outside the jurisdiction of the United Kingdom? If a crime is committed on them, is it not a free-for-all?
Baroness Williams of Trafford
I thank my noble friend Lord Bourne for very helpfully clarifying the issue over mineral rights et cetera. If a crime took place on an oil rig, windmill or anything out to sea, it would be a matter for whichever country had a flag on it. I hope that clarifies the matter in respect of anything that might be in any sea anywhere in the world.
On whether the 12-nautical mile radius should still stand, I do not think that that is a question for today. The fact is that it does stand.
Lord Elton
My Lords, I was hoping to protract the glory of this small question, but I think that I had better sit down in order to wrestle with my machine that is bleeping.
Baroness Hamwee
My Lords, after the tutorial that we have had from the noble Lord, Lord Bourne, I feel that I should just say that I surrender—but, before I do so, I will comment that it would be easier if the Bill were to refer to each country’s territorial waters as that country has determined, rather than using what appears to be general language without making reference to the technicalities. I am grateful to my noble friend the Minister, who no doubt now knows a great deal more about territorial waters than she really ever wanted to. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I will speak also to my Amendment 31H. Perhaps I should speak slowly to give the noble Baroness, Lady Smith, an opportunity to work out how to make her points in the debate on this clause.
In Clause 39, Amendment 31D would omit subsection (4) and Amendment 31H would omit subsection (7), both of which refer to a case in which the accused is in one country and the offence is linked to another jurisdiction, which will very often be the case when there is computer misuse. My amendments are probing; I am asking my noble friend whether there is a risk that a person could be prosecuted for the same act in more than one jurisdiction, and how it should be determined which jurisdiction takes precedence. Obviously, this point arises not only in connection with the Bill and the new offences, so I am not raising a novel point, but it would be very helpful to the House to understand how that conflict might be determined—I use the term “conflict” somewhat hesitantly as, technically, it is not a conflict—when more than one jurisdiction is involved. The first of these two amendments refers to the UK and the second to Scotland. I beg to move.
Baroness Williams of Trafford
I am grateful to my noble friend for the explanation of her amendments. I believe that I can provide the reassurance that she seeks. I know that a number of noble Lords are interested in this issue; indeed, it was raised in the House at Second Reading.
It might help if I briefly explain why we are making the amendments to the Computer Misuse Act in Clause 39 and then set out the safeguards against subjecting a person to double jeopardy. As the Committee is well aware, cybercrime is a serious threat that often crosses international boundaries. The Computer Misuse Act already recognises the transnational nature of cybercrime and provides for the extraterritorial jurisdiction of certain of the offences under the Act where there is a significant link to the United Kingdom.
Clause 37 adds nationality to the categories of significant linkage to the UK. This means that a UK national would be committing a computer misuse offence while outside the UK even where there was no link to the UK other than nationality, provided that the offence was also an offence in the country where it took place. Therefore, in the case of concurrent jurisdiction, a UK national could be prosecuted under the Computer Misuse Act in the UK subject to the usual extradition arrangements or the accused voluntarily returning to the UK.
Decisions about prosecution rest with the Director of Public Prosecutions. It would be for prosecutors in the affected jurisdictions to negotiate where the prosecution should take place. For example, in the EU, Eurojust was established to deal with criminality that extends over borders, and it has guidelines to help prosecutors decide where a case should best be tried. There is a similar protocol agreed by the Attorneys-General of the US and the UK for cases that in theory could be tried by either jurisdiction. The Crown Prosecution Service has domestic guidelines that its prosecutors are expected to follow to help them decide whether to bring a prosecution in the UK or cede jurisdiction to another state with an interest.
My noble friend is rightly concerned to ensure that an individual cannot be prosecuted in both jurisdictions where there is a concurrent jurisdiction. This is a risk that the existing guidance and agreed processes have been designed to manage. Using the UK and Clause 39 as an example, a UK national could commit a number of Computer Misuse Act offences in country B even if the criminality did not impact on the UK. As I described, the way in which we would expect this to work is that the prosecutors in the UK and country B would decide where to pursue the prosecution. In the absence of country B taking forward a prosecution, the UK could take one forward and would need to go through the extradition process to return the subject to the UK. If the case was prosecuted and the sentence served in country B, and the subject returned to the UK, the UK could not then take forward its own proceedings. Double jeopardy would prevent the subject being prosecuted for the same offence in the UK.
It is important to note that the extraterritorial scope of the offences in question does not place any requirements for the offences to be prosecuted here, especially in cases where the offence has taken place outside the UK and the only link to the UK is the nationality of the subject. Similarly, if the subject was outside the UK, the usual extradition procedures would be followed where prosecutors agreed that the prosecution should be pursued in the UK. I trust that that provides the assurance that my noble friend is seeking and that she will be content to withdraw her amendment.
Baroness Hamwee
My Lords, that was very helpful. I may have missed this, in which case I apologise, but I take it that the arrangements to which the Minister referred at the beginning of her reply deal with where the prosecution actually takes place and the decision between two states as to who takes the lead.
“(2A) A sheriff shall have jurisdiction in respect of an offence under section 3ZA above if—
(a) the accused was in the sheriffdom at the time when he did the unauthorised act (or caused it to be done), or (b) the computer in relation to which the unauthorised act was done was in the sheriffdom at that time.”
Baroness Williams of Trafford
My Lords, this is a technical amendment. Clause 39 extends the extraterritorial jurisdiction of certain offences under the Computer Misuse Act 1990. In doing so, the clause amends Section 13 of the 1990 Act, which relates to criminal proceedings in Scotland, to establish the criteria for when a sheriff court has jurisdiction to try certain offences under that Act. Our amendments to Clause 39(6) and (7) extend these provisions so that they also apply to the new Section 3ZA offence—inserted into the 1990 Act by Clause 37—of impairing a computer such as to cause serious damage. I beg to move.
(b) in addition to an order discharging the person absolutely.”
Baroness Williams of Trafford
My Lords, these amendments make further amendments to Part 1 of the Serious Crime Act 2007 as a consequence of extending serious crime prevention orders to Scotland.
The most substantive amendment in this group is Amendment 31Z, which inserts proposed new Section 27A into the 2007 Act. Sections 27 to 29 of the 2007 Act already make provision for the winding up of companies, partnerships and other bodies corporate where they have been the subject of a serious crime prevention order and are then convicted of a breach of that order under Section 25 of the 2007 Act. Hitherto, all SCPOs have been made against individuals rather than bodies corporate, but it is important that the legislation continues to provide for the possibility of an SCPO being made against a company or other commercial enterprise.
Proposed new Section 27A of the 2007 Act makes bespoke provision for the winding up of companies or other relevant bodies and dissolution of partnerships in Scotland. As now, the test of the winding up of a company or other relevant body or dissolution of a partnership will be that it has been convicted of the offence of breaching a serious crime prevention order and Scottish Ministers consider that it would be in the public interest for the company—or, as the case may be, relevant body—to be wound up or the partnership to be dissolved. Amendment 31Z effectively completes the provisions in Schedule 1, ensuring that all elements of Part 1 of the 2007 Act are extended to Scotland.
Amendment 31AA is in response to the helpful comments made by the noble and learned Lord, Lord Hope of Craighead, at Second Reading. In his comments, the noble and learned Lord correctly identified that new Section 36A of the 2007 Act, as inserted by paragraph 23 of Schedule 1, went wider than the England and Wales equivalent in Section 36 of the 2007 Act. As drafted, new Section 36A provides that in any proceedings before the High Court of Justiciary or the sheriff in relation to serious crime prevention orders, the civil standard of proof is to apply. Amendment 31AA clarifies that the civil standard of proof applies where the High Court of Justiciary or the sheriff, when sitting in a criminal capacity, are considering the making of an SCPO on conviction, or the variation of an order made on conviction, or the variation or replacement of an order following a conviction for breach. The criminal standard of proof would naturally apply, as now, to criminal proceedings in relation to the offence of breach of an SCPO. I am most grateful to the noble and learned Lord for highlighting the need for this amendment.
The other amendments in this group are minor technical or drafting amendments. I beg to move.
Lord Howarth of Newport
My Lords, I am aware that the Committee is hungry. I am hungry myself, so I shall be extremely brief. This amendment, helpfully tabled by the noble Baroness, Lady Hamwee, provides us with the only opportunity to debate the provisions in the Bill that deal with cutting agents used to bulk out illegal drugs. I simply want to draw to the attention of the Committee the law of unintended consequences. Cracking down on relatively harmless cutting agents such as benzocaine runs the risk that you drive criminals to use much more damaging cutting agents. A case was reported in Scotland recently in which six people died. They had used heroin that had been bulked out with a cutting agent contaminated with anthrax. Criminals are entirely unscrupulous. I hope that, when under the terms of this clause, the police, customs and courts are considering whether to return or retain cutting agents that have been seized, they will think very carefully about the consequences of impounding relatively safe cutting agents, thereby providing an incentive for criminals to use much more dangerous cutting agents.
I will also, although this is a painful thing to do, draw to the attention of the Committee the utterly tragic case of Martha Fernback, a 15 year-old girl who died nearly a year ago after consuming ecstasy—MDMA—which was 91% pure compared to the average street-level purity of 58%. Had that MDMA been cut and the purity been what it would normally be when it came into her hands, she would still be alive today. Her mother, Anne-Marie Cockburn, has campaigned with tremendous courage and great wisdom asking that the Home Secretary and the shadow Home Secretary think deeply about whether it would be right to move from the system of prohibition that trapped that girl towards a system of legalisation and strict regulation as well as vastly better education in this field. I will not enlarge on that theme because the Minister and the House know my views well, but as the House determines whether to approve these clauses we ought to bear in mind that legislation with the best of intentions, which the Government have, can lead to horribly counterproductive effects.
Baroness Williams of Trafford
My Lords, if a court approves the further retention of a suspected drug-cutting agent beyond the initial 30-day detention period, it is only right that the responsible police or customs officer makes reasonable efforts to inform the person who may be entitled to the substances if the person was not present or represented at the court hearing. A person entitled to the substances is defined in Clause 53 as the person the substances were seized from or the owner of the substances. It is important that all those persons who are entitled to receive notice do so. This provides additional protection for the legitimate trade, ensuring people have sufficient time to consider and act upon the notice, if appropriate.
I commend my noble friend Lady Hamwee for ensuring that we continue to minimise the impact on the legitimate trade by setting out in clear terms who should be informed of the court’s decision. I shall therefore give further consideration to extending the provision to ensure that notice is given to the person from whom the suspected drug-cutting agents were seized, if different from the owner. I will reflect on this point and let her know the outcome in advance of Report.
On the two points made by the noble Lord, Lord Howarth, about switching to more dangerous cutting agents, the proposals include a general seizure power which covers any substance suspected of being intended for use as a drug-cutting agent. Therefore, we do not anticipate that they will lead to drug traffickers using cutting agents that are more dangerous than those currently being used. I have heard of dangerous cutting agents being used currently. Any new substances that traffickers begin to use would be equally subject to seizure under these powers.
On the risk that the powers to seize cutting agents would place drug users in danger because of purity issues, by restricting the ability of drug traffickers to cut drugs we anticipate that the new powers will reduce harm by limiting the availability of drugs on the street. Lower availability should increase prices and therefore reduce use. The powers will also attack the profits of drug traffickers, which they use to fund a range of other harmful criminal activities. Moreover, the most common cutting agents are far from harmless. There has been a move away from inactive cutting agents to more dangerous pharmaceutical agents, such as benzocaine, lidocaine and phenacetin. Toxic doses of benzocaine and lidocaine can decrease the oxygen-carrying capacity of the blood and can cause convulsions that mimic the acute toxicity of cocaine. Phenacetin, a painkiller, is no longer used in the UK due to its carcinogenic and kidney-damaging properties.
I hope my response has addressed the issues that my noble friend and the noble Lord have raised and that my noble friend will be content to withdraw her amendment.
Baroness Hamwee
My Lords, the Minister is extremely generous and I consider my wrist to have been slapped. I beg leave to withdraw the amendment.