Baroness Williams of Trafford
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Serious Crime Bill [HL]
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Baroness Williams of Trafford (Con)
My Lords, I can be relatively brief with this group of essentially minor and technical amendments to Part 1 of the Bill. Amendment 2 is consequential upon the provisions in the Criminal Justice and Courts Bill in respect of the new criminal courts charge, which will recover some of the trial costs from offenders. This amendment will ensure that, although the court takes no account of any confiscation order when imposing a criminal courts charge, payment of a confiscation order will take precedence over payment of the new charge.
Amendment 51 inserts into Schedule 4 a consequential amendment to Section 22 of the Proceeds of Crime Act, arising from the provisions in Clause 6. That clause provides that priority will be given to the payment of a victim surcharge order where a defendant has insufficient funds to pay both a confiscation order and a victim surcharge order. This amendment to Section 22 of POCA will ensure that a victim surcharge order is taken into account by a court when it is reconsidering the available amount payable under an existing confiscation order. Amendment 52 makes the equivalent change to Section 107 of POCA which relates to Scotland.
Amendments 3 and 15 are to Clause 7 and the equivalent provision for Northern Ireland in Clause 29. These clauses amend POCA to provide the court with the power to make any order it considers appropriate for ensuring that a confiscation order is effective. Such a compliance order may, among other things, impose a travel ban on the defendant. Clauses 7 and 29 provide for a right of appeal to the Court of Appeal by the prosecutor against a decision by the Crown Court not to make a compliance order, and by the prosecutor or person affected by a compliance order against the decision to make a compliance order. However, as currently drafted, these clauses do not provide for any right of appeal against a decision of the Crown Court to vary or discharge a compliance order. This is at odds with the existing provision in respect of the variation and discharge of a restraint order. These amendments remedy the inconsistency.
At the request of the Department of Justice in Northern Ireland, Amendment 16 amends Clause 30. This clause empowers the Crown Court to discharge a confiscation order where the defendant has died and it is not possible or reasonable to seek payment of the order from the defendant’s estate—for example, where there are no assets remaining in the estate. In England and Wales, an application to the Crown Court will be made by the designated officer for a magistrates’ court. The Department of Justice in Northern Ireland has advised us that, in Northern Ireland, the prosecutor would be best placed to make any application to discharge an order and not the chief clerk. This amendment makes the necessary adjustment to Clause 30 to this end.
Finally, Amendment 54 corrects a drafting error in Section 185 of POCA. I beg to move.
Baroness Williams of Trafford
My Lords, we are considering the third group of amendments, rather than the fifth, and I should move Amendment 5, as that is my role. I apologise to my noble friend Lord Bates.
Strengthening the proceeds of crime legislation is a priority for the Scottish Government, as it is for the UK Government. Maximising recovery of moneys through the route of criminal confiscation is a major part of this. Chapter 2 of Part 1 already replicates for Scotland a number of the changes made by the Bill to the confiscation regime in England and Wales. At the request of the Scottish Government, it is now proposed to replicate a number of further provisions—namely, those in Clauses 7, 9, 10 and 12. In each case, the England and Wales provisions are subject to appropriate modifications and adaptations to take account of Scots law and any policy refinements determined by Scottish Ministers.
Amendments 5 and 6 broadly replicate the provisions in Clause 7 to enable the courts to make a compliance order imposing overseas travel bans and other restrictions and requirements on an accused person, for the purposes of ensuring that a confiscation order is effective. Unlike in England and Wales, it will not be possible to make a compliance order against a third party. Amendment 7 replicates the provisions in Clause 9, which ensure that individuals who abscond before conviction, but are then convicted in their absence, may be subject to confiscation.
Amendment 8, which replicates subsections (1) and (2) of Clause 10, increases the maximum default sentences where offenders fail to pay confiscation orders in respect of amounts over £500,000. There are no changes to the early release arrangements in Scotland. Amendment 8 also provides that, where a confiscation order was made by a court in England and Wales, or in Northern Ireland, but it falls to be enforced in Scotland, the courts in Scotland, when sentencing the defendant for non-payment of the order, would apply the default sentences set elsewhere in Part I of the Bill, rather than the sentences applicable for non-payment of a fine.
Amendment 9 replicates the provisions in Clause 12 to ensure that a restraint order may be maintained following the quashing of a conviction and pending the outcome of a retrial.
Amendments 10 to 13 point in the opposite direction. Rather than adding new Scottish provisions to the Bill, they would remove Clauses 19, 20, 22 and 23. Those clauses, which were included in the Bill at the request of the Scottish Government, sought to make it an offence to breach a prohibitory property order or an interim administration order. These orders are designed to prevent a person from dissipating identified assets through the course of a civil recovery investigation. As such, they are analogous to restraint orders under the criminal confiscation regime. Under the existing civil recovery regime, the focus of these orders is on applying prohibitions on dissipating property rather than on the owners of, or those who control, the property in question.
After further consideration and discussion with operational stakeholders, the Scottish Government have concluded that the introduction of these offences would result in a loss of flexibility in the civil recovery regime and have therefore asked for the relevant clauses to be removed from the Bill. Breach of these orders will continue, as now, to be dealt with through contempt of court proceedings.
The other amendments in this group are either consequential on the amendments that I have already described or make other technical amendments to the Scottish confiscation regime in Part 3 of POCA. I beg to move.
“Compliance orders: appeals by prosecutor
(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows.
(2) In section 108 (Lord Advocate’s right of appeal in solemn proceedings)—
(a) in subsection (1), after paragraph (cc) insert—“(cd) a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;”;(b) in subsection (2)(b)—(i) in sub-paragraph (ii), for “or (cc)” substitute “, (cc) or (cd)”;(ii) in sub-paragraph (iii), after “paragraph” insert “(cd) or”.(3) In section 175 (right of appeal in summary proceedings)—
(a) in subsection (4), after paragraph (cc) insert—“(cd) a decision under section 97B(2) of the Proceeds of Crime Act 2002 to make or not to make a compliance order;”;(b) in subsection (4A)(b)—(i) in sub-paragraph (ii), for “or (cc)” substitute “, (cc) or (cd)”;(ii) in sub-paragraph (iii), after “paragraph” insert “(cd) or”.”
“(b) after subsection (2) insert—“(2A) In its application in relation to confiscation orders, subsection (2) of section 219 of the Procedure Act is to be read as if for the Table in that subsection there were substituted the following Table—
Amount to be Paid under Compensation Order | Maximum Period of Imprisonment |
|---|---|
£10,000 or less | 6 months |
More than £10,000 but no more than £500,000 | 5 years |
More than £500,000 but no more than £1 million | 7 years |
More than £1 million | 14 years |
(a) amend section 219(2) of the Procedure Act (as applied by this section) so as to provide for minimum periods of imprisonment in respect of amounts ordered to be paid under a confiscation order; (b) amend the Table in subsection (2A) so as to remove, alter or replace any entry (including an entry inserted by virtue of paragraph (a) of this subsection) or to add any entry;(c) apply (with or without modifications) any provision of the Procedure Act relating to enforcement of fines in consequence of exercising the power in paragraph (a) or (b) (including modifying any such provision in its application in relation to confiscation orders by virtue of this section).(2C) In its application in relation to a confiscation order under Part 2 of this Act, subsection (8) of section 222 of the Procedure Act is to be read as if, in relation to a transfer of fine order under section 90 of the Magistrates’ Courts Act 1980, for “139 of the Powers of Criminal Courts (Sentencing) Act 2000” there were substituted “35(2A) of the Proceeds of Crime Act 2002”.
(2D) In its application in relation to a confiscation order under Part 4 of this Act, subsection (8) of section 222 of the Procedure Act is to be read as if—
(a) before the words “section 90” there were inserted “section 35 of the Criminal Justice Act (Northern Ireland) 1945,”;(b) in relation to a transfer of fine order under section 35 of that Act, for “139 of the Powers of Criminal Courts (Sentencing) Act 2000” there were substituted “185(2A) of the Proceeds of Crime Act 2002”.”( ) In section 459 of that Act (orders and regulations)—
(a) after subsection (3) insert—“(3A) Subsection (3) does not apply to the power of the Scottish Ministers to make an order under section 118(2B).”;
(b) in subsection (5)(a), after “section” insert “118(2B),”;(c) in subsection (6)(b), after “section” insert “118(2B),”.( ) In section 219 of the Criminal Procedure (Scotland) Act 1995 (fines: periods of imprisonment for non-payment), in subsection (8)(b), after “section 118(2)” insert “, (2A) and (2B)”.”
“Continuation of restraint order after conviction quashed or verdict set aside
(1) In section 121 of the Proceeds of Crime Act 2002 (application, recall and variation), after subsection (8) insert—
“(8A) The duty in subsection (8) to recall a restraint order on the conclusion of proceedings does not apply where—
(a) the proceedings are concluded by reason of—(i) an accused’s conviction for an offence being quashed under section 118(1)(c) of the Procedure Act, or(ii) the setting aside of the verdict against the accused under section 183(1)(d) of the Procedure Act,(b) the restraint order is in force at the time when the conviction is quashed or the verdict set aside (as the case may be), and(c) the High Court of Justiciary has granted authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution or the prosecutor has requested that the court grant such authority.(8B) But the court must recall the restraint order—
(a) if the High Court of Justiciary refuses a request to grant authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution, (b) if the High Court of Justiciary has granted authority under section 118(1)(c) or 183(1)(d) of the Procedure Act to bring a new prosecution but no proceedings are commenced by the expiry of the time mentioned in section 119(5) or 185(5) of that Act (as the case may be), or(c) otherwise, on the conclusion of the proceedings in the new prosecution of the accused under section 119 or 185 of the Procedure Act.””
“( ) After that section insert—
“168A Provision of information as to defendant’s interest in property
(1) This section applies if the court—
(a) is considering whether to make a determination under section 160A of the extent of the defendant’s interest in any property, or(b) is deciding what determination to make (if the court has decided to make a determination under that section).In this section “interested person” means a person (other than the defendant) who the court thinks is or may be a person holding an interest in the property.(2) For the purpose of obtaining information to help it in carrying out its functions under section 160A the court may at any time order an interested person to give it information specified in the order.
(3) An order under this section may require all or a specified part of the information to be given in a specified manner and before a specified date.
(4) If an interested person fails without reasonable excuse to comply with an order under this section the court may draw such inference as it believes is appropriate.
(5) Subsection (4) does not affect any power of the court to deal with the person in respect of a failure to comply with an order under this section.
(6) If the prosecutor accepts to any extent an allegation made by an interested person—
(a) in giving information required by an order under this section, or(b) in any other statement given to the court in relation to any matter relevant to a determination under section 160A,the court may treat the acceptance as conclusive of the matters to which it relates.(7) For the purposes of this section an allegation may be accepted in a manner ordered by the court.
(8) If the court makes an order under this section it may at any time vary it by making another one.
(9) No information given by a person under this section is admissible in evidence in proceedings against that person for an offence.””
Baroness Williams of Trafford
My Lords, as we noted in Committee, the tentacles of cybercrime can now stretch across the globe. A perpetrator, sitting in their bedroom in London, could be hacking into a computer anywhere in the world, or, located outside the UK, a British national could be causing serious damage to their host country or in our own. The new offence provided for in Clause 40 acknowledges this reality and captures the serious damage that cybercriminals can cause in any country.
Clause 40 goes on to define a reference to country as including a reference to: a territory; any place in, or part or region of, a country or territory; and the territorial sea adjacent to any country or territory. My noble friend Lady Hamwee moved an amendment in Committee to seek further clarity on the last of these three points, which gave rise to an interesting debate on how best to capture damage caused outside territorial waters.
Following that debate, we have given further consideration to the position of installations such as oil rigs, ships and so on that are located outside the territorial waters of any country. Although I acknowledge that this scenario is extremely unlikely, it is not clear that the offence as currently drafted would capture an attack that caused serious damage to the human welfare of those living and working on such an installation, or to the surrounding environment.
To provide greater clarity on this point, therefore, Amendment 17 replaces the reference to damage to human welfare in any country with a reference to damage to human welfare in any place. Amendment 18 similarly replaces the reference to damage to the environment in any country with a reference to damage to the environment of any place.
Once these changes are made, there is no longer any need to extend the meaning of “country” to include its territorial seas. References to damage to the economy or national security of any country will remain, as either the economy or national security of a country has been damaged or it has not. In these cases, it is not necessary to include territorial seas within the definition of a country, so Amendment 19 removes this reference. I am most grateful to my noble friend for raising this issue and I beg to move.
Baroness Hamwee
My Lords, I am grateful to both my noble friends on the Front Bench.
Baroness Williams of Trafford
My Lords, before I address the specific points raised by the noble and learned Lord, Lord Mackay, it might assist the House if I provide a little background to Schedule 1. The provisions to extend the serious crime prevention order to Scotland have been included in the Bill at the request of the Scottish Government. The main policy driver for this in Scotland is the implementation of the serious and organised crime strategy, Letting Our Communities Flourish, in which the Scottish Government have committed to tackle serious and organised crime and to disrupt and dismantle organised crime groups. That is a priority for both the Scottish and the UK Governments. Clause 45 of and Schedule 1 to the Bill will extend the serious crime prevention order regime to Scotland and provide an additional power for law enforcement agencies to minimise the harm that serious organised criminals do to communities in Scotland.
A serious crime prevention order is a civil order that is used to protect the public by preventing, restricting or disrupting a person’s involvement in a serious crime. It is not intended to operate as a punishment. Serious crime prevention orders have operated successfully in England, Wales and Northern Ireland since 2008. When the Serious Crime Act 2007 was going through Parliament, the then Scottish Government decided to consider the effectiveness of serious crime prevention orders elsewhere in the UK before deciding whether those orders should be introduced in Scotland. It is a measure of confidence in the value of the orders that the Scottish Government have now concluded, following consultation last year, that the provisions in Part 1 of the Serious Crime Act 2007 should extend to Scotland.
As the noble and learned Lord made clear, the intention of these amendments is that the serious crime prevention orders should only be made by a court following conviction for an offence. I hope that I can allay the concerns of the noble and learned Lord by reassuring him that there will be a robust framework of safeguards for the use of SCPOs—as they are called—in the civil courts.
The class of applicant authorities will be restricted. Only the Lord Advocate will be able to make applications for civil or criminal SCPOs in Scotland. This reflects the current position in England, Wales and Northern Ireland, where only prosecutors may apply for an SCPO. It is not the case, as suggested in the Law Society of Scotland’s briefing paper, that the police will be able to apply for stand-alone SCPOs. I hope the fact that the Lord Advocate will act as a gatekeeper in this regard will provide some comfort for the noble and learned Lord, as he is a former holder of the office.
When considering an application for an SCPO, the court will need to be satisfied that the respondent has been involved in serious crime and believe that imposing an order would protect the public. Courts will impose an SCPO only when it is a necessary and proportionate response. There will also be a right of appeal against the imposition of an order. Furthermore, third parties will have the right to be represented at SCPO hearings if a decision concerning the order is likely to have a significant adverse effect on them.
It is also worth noting here that, since the 2007 Act came into force, no stand-alone order has been imposed in the rest of the UK in the absence of a criminal conviction. That said, we are working with the CPS to make better use of this preventive tool in future, including by seeking stand-alone orders in appropriate cases. I stress that, although these orders are civil, their overriding aim is to protect the public from harm.
The noble and learned Lord made a point about stand-alone orders in the more junior sheriff courts. In Scotland, a sheriff court may consider both civil and criminal cases. For criminal cases, on indictment a sheriff court may consider all crimes except murder, treason, rape and breach of duty by a magistrate. Stand-alone orders may also be considered in the Court of Session. It will be for the Lord Advocate to decide in which court to make the application. If a sheriff court sitting in its criminal capacity has the power to impose an SCPO, it is logical that it should have the same power when sitting in its civil capacity.
Schedule 1 seeks to replicate what is already in existence in England, Wales and Northern Ireland. Other than allowing for different legal systems, there are no real differences in how the regimes will operate. I very much hope that I have been able to reassure the noble and learned Lord, Lord Mackay, that the safeguards that will be in place will ensure that SCPOs will be imposed by Scotland’s civil courts only where it is necessary and proportionate to protect the public from the harm caused by serious crime. In the light of those assurances, I hope that the noble and learned Lord will be content to withdraw his amendment.
Lord Mackay of Drumadoon
I am very grateful to the Minister for her clear and helpful response to my question on the reasons for the Government’s position. In the light of that position and in the absence of any support from anyone else in your Lordships’ House, these four amendments are coming to a rather abrupt end. Speaking more seriously about it, I have little doubt that what the Minister has said today will be of use to those in Scotland who will come to implement the provisions in this Bill. In these circumstances, I beg leave to withdraw the amendment.
Baroness Williams of Trafford
My Lords, the four amendments in this group are minor, technical and drafting amendments to the provisions in respect of serious crime prevention orders. I do not propose to go through them in detail, but I would of course be happy to do so if it would assist the House. In the mean time, I beg to move.
“(a) to the person from whom the substance was seized, and(b) if the officer thinks that the substance may belong to a different person, to that person.”
Baroness Williams of Trafford
My Lords, we now turn to the amendments relating to Clause 65—no, we do not. I am sorry but I had what is completely the wrong speaking note and I apologise to your Lordships.
During debate in Committee, I agreed to consider further an amendment put forward by my noble friend Lady Hamwee to what was then Clause 56—it is now Clause 59. Where a substance suspected of being used as a drug-cutting agent has been seized and the court makes an order authorising the continued retention of the substance, Clause 59(7) requires the relevant police or customs officer to notify a person entitled to the substance of that fact, if they were not represented at the court hearing. My noble friend queried why such notice should not also be given to the person from whom the substance was seized, if different from the person entitled to the substance.
I am grateful to my noble friend for raising a pertinent point. On further consideration, we agreed that her suggested amendment would strengthen the provisions in the Bill by helping to minimise any impact on the legitimate trade. Amendment 35 to Clause 59 therefore extends the notice provision in that clause. A similar point also arises in relation to Clauses 56 and 61, which also require notice to be given to a person entitled to the seized substance. Amendments 33, 34 and 36 therefore make equivalent changes to these clauses, while Amendments 37 and 38 to Clause 64 make consequential amendments to the definition of “entitled”. Once again, I am grateful to my noble friend for raising the point and I beg to move.