Enterprise Bill

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Mr. Djanogly: Would it be necessary for the person being questioned to be read their rights at the time at which the investigation started, rather than some later time?

Miss Johnson: I am assuming that any investigation would have to be conducted according to the codes of practice for criminal investigations, just as any other similar investigation would—that is under the voluntary arrangements, when information is given voluntarily. Where OFT investigators seek information under compulsion using the powers conferred by clauses 184 to 186, PACE does not apply.

However, clause 188 does provide protection against self-incrimination. In other words, any information obtained under compulsion cannot be used against the person who made it in court, except in very limited circumstances. That safeguard mirrors

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that provided to persons subject to a fraud investigation using powers conferred on the SFO by section 2 of the Criminal Justice Act 1987.

A suspect has no right to have a lawyer present when being interviewed under compulsory powers. However, in the interests of fairness and unless it would unduly delay or obstruct the investigation, the SFO would advise persons under investigation that they might wish to seek legal representation, and the OFT will follow SFO practice in that respect. I hope that that explains the situation for England and Wales.

In the case of suspects being cautioned in Scotland, PACE does not apply. When the OFT is seeking voluntary statements from suspects in Scotland, it will nevertheless give a caution in line with normal practice under Scots common law. Omitting to give a common-law caution before questioning a suspect would place the admissibility of the evidence in doubt. As I said earlier, the Crown Office will be providing training in Scots law and practice to OFT investigators. When the OFT is seeking information from suspects in Scotland using its compulsory powers, clause 188 will have effect. As I explained a moment ago, that clause restricts the use to which the information provided under compulsion can be put in court.

Mr. Carmichael: The provisions as they stand seem to make it particularly difficult for the prosecution rather than for the defence. We accept that questions can be asked during an investigation of someone who, it subsequently becomes apparent, should be charged but it is quite inconceivable that, if powers of compulsion have been used, they cannot—or so the Minister tells us. I suggest that there might be some merit in the Law Society of Scotland's briefing, which suggests that there should be a measure of prior judicial oversight to protect the position of all parties in that respect.

Miss Johnson: As I have said before, the powers of investigation conferred on the OFT under the Bill are entirely necessary and proportionate for the detection and successful prosecution of offences. The hon. Gentleman is making a point. I had hoped to persuade him that we were in entirely the right place; I seem to have persuaded him that we are in the wrong place but for a different reason. I take it that he will not support the amendments on that basis. The powers include the power to require information under notice without the requirement for judicial approval. Those powers are not unique; other enforcement agencies use them in the investigation of similarly serious crime. Indeed, the powers in the Bill have been modelled on the powers conferred on the SFO in the Criminal Justice Act 1987. I have no reason to believe anything other than that they are entirely compatible with the European convention on human rights.

I am sure that the hon. Member for Orkney and Shetland is well aware that there is no absolute right to a solicitor in Scotland. However, Scottish case law has established the principle that if a suspect asks for a solicitor and the investigating officer refuses the request, the refusal can be used as evidence in determining whether the interview was fair. In

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practice, the OFT would offer a suspect under Scottish jurisdiction access to legal representation whether or not it was seeking voluntary statements that could be used as evidence against that suspect. For those reasons, I shall take away amendment No. 97 and consider the matter further, but I hope that I have persuaded the hon. Gentleman that he should withdraw the amendment.

Mr. Waterson: I am most grateful to the Minister for her careful explanation. With the possible exception of amendment No. 96, we are extremely wedded to the principles set out in the amendments. We shall read carefully what she had to say. On such things as the right to silence, self-incrimination and legal representation, we want to be absolutely clear that, in this sort of investigation, an accused or a potential accused will have the same rights as any other person under suspicion under any other circumstances. The Minister has gone some way to reassuring us on that, but we shall be taking advice on specific points.

I want to be absolutely clear that, as the Bill stands, evidence that is obtained without those safeguards will be regarded as tainted, that it would never come to a full investigation or that it would be struck out later because the evidence had been obtained without following those procedures, as would be the case in other criminal matters. There should be no difference whatever between the procedures followed to protect the accused in this case and those followed under any other sort of criminal prosecution. We shall reconsider the point. We are grateful to the Minister and we shall seek detailed advice on everything that she has said. If she would like to send us anything to reinforce what she has said, that will be welcome. On that basis, I am happy to withdraw the amendment.

Miss Johnson: Let me just confirm, to reassure the hon. Gentleman, that I see that there is no difference.

Mr. Waterson: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 184 ordered to stand part of the Bill.

Clause 185

Power to enter premises under a warrant

6 pm

Question proposed, That the clause stand part of the Bill.

Mr. Carmichael: I have a few concerns about the clause, and I return unapologetically to the point that I made on Second Reading. I draw the Committee's attention to clause 185(5)(b), which defines ''Court'' in Scotland as the High Court of Justiciary. It seems bizarre that only the High Court of Justiciary is to issue a warrant in Scotland. Is the wording of the clause influenced by the fact that the High Court in England and Wales and the High Court in Northern Ireland are to be given the power to grant warrants? I understand from my consultants in English criminal law and procedure, the hon. Members for Huntingdon and for Cities of London and Westminster (Mr. Field), that the High Court in England is a court of civil

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jurisdiction. The High Court of Justiciary is clearly a different sort of beast; it is an exclusively criminal jurisdiction.

As the normal procedure in the investigation of all offences is to give the power to seek a warrant to the procurator fiscal, who then goes to the sheriff court to obtain a warrant for investigation, at the very least I should think it appropriate for the warrant to be obtained from the sheriff court as well as the High Court. Given that there are some 22 senators of the College of Justice—judges in the High Court in Scotland—there is no need to burden them in the way proposed. I do not see why, either, the procurator fiscal should not be given the power to seek the warrant. I cannot think of another instance, with the possible exception of a few customs and excise offences, in which the procurator fiscal is not given the power to seek a warrant. I should be grateful if the Under-Secretary explained why the clause is so worded. It serves to reinforce my suspicion that the drafting of the Bill does not take sufficient account of separate Scots law and criminal procedure.

Mr. Djanogly: I should like to touch on a couple of errors. The first relates to the status of the documents that may be seized or handed over under subsection (1). If they are handed over or seized in respect of a criminal investigation, can they then be used for civil proceedings as well? If a company were willingly to give the OFT confidential information as part of a civil investigation relating to what turns out to be a criminal offence, or for any other reason—perhaps as a market-testing expedition—could that information be used in the criminal trial?

My other question relates to the fact that in subsection (2)(b) and (c) the documents are referred to as of the ''relevant kind'', but in paragraph (d), which deals with electronic mail, the information concerns

    ''relates to any matter relevant to the investigation''.

So, a different formula of words is used for what seems to be the same thing. I would be interested to hear from the Under-Secretary whether there is any particular reason for that.

Miss Johnson: As the hon. Member for Orkney and Shetland knows, the Bill proposes that warrants should be granted by the High Courts in England and Wales and in Northern Ireland and by the High Court of Justiciary in Scotland. The objective is to ensure the right level of scrutiny. I hear what has been said about it being the usual business of sheriffs in Scotland to grant warrants for criminal investigations into even the most serious offences. I am grateful for the comments that have been made, and I will consider whether we should revise the clause in that respect. However, I assure the hon. Gentleman that we have liaised extensively with Scottish legal experts and taken their advice.

Mr. Carmichael: Is the Under-Secretary telling the Committee that the Crown Office was consulted and pronounced itself satisfied with the High Court of Justiciary having a warrant-granting power, because I have information to the contrary?

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