The
Solicitor-General: In the end, it will be up to a judge to
decide how to apply the provisions. However, I shall examine the hon.
Gentleman’s point and its implications, and I shall then write
to him, if that is appropriate. I suspect that there is not a lacuna,
but he raises an interesting and potentially difficult point, and I
ought to give it more thought. If necessary, we can return to it on
Report.
Mr.
Heath: This is an interesting point. I am not
clear—perhaps I am being particularly obtuse—which
judge makes the judgment. Is it the judge in the civil proceedings who
determines whether the person can be excused from answering the
question on the grounds of
self-incrimination?
The
Solicitor-General indicated
assent.
Mr.
Heath: The Solicitor-General is nodding, so that is the
point at which the person is excused or otherwise. In that case, what
happens in cases where criminal proceedings take place subsequently and
the prosecution wishes to use evidence that was given on the basis of a
decision by the civil court judge? What if that person was not covered
by the clause, and the civil proceedings judge had wrongly directed
that the person was obliged to answer the questions, because the
offence was not an offence or a related offence under the clause? The
judge in the criminal proceedings would inevitably say that the
evidence was admissible, and nothing could be done to turn back the
clock. The defendant’s convention rights would be breached by
virtue of those two decisions, both of which could be entirely proper.
Obviously, one of the decisions must be mistaken, but they can both be
made in good faith by two judges in quite different
proceedings. A degree
of clarity in the definition, rather than it allowing an infinitely
expandable group of related offences, would therefore be advantageous.
It would be perfectly in order in statute terms to say that all
offences are covered by the provision. That would very debatable in
terms of convention rights, but it is a perfectly arguable position to
say that all offences could be covered. The Minister would then have a
provision to say that, on any offence, that the information would not
be admissible. The
Minister is in some difficulties, having two points at which an offence
is included or not: first, when the judgment is made in civil
proceedings, and then when it is made in subsequent criminal
proceedings. The judgments can be different on quite proper grounds.
So, I invite the Solicitor-General to give that further consideration
before Report, as I fear that we may unintentionally be producing a new
difficulty through that lack of precision.
Mr.
Grieve: I am sorry to have been out of the room briefly
when the hon. Gentleman first raised the question. It seems to me that
it cannot have been the Government’s intention to remove the
privilege against self-incrimination in criminal proceedings—if
that is indeed what clause 13 does, as highlighted by my hon. Friend
the Member for Torridge and West Devon, outside the scope of fraud and
related offences—and that in those circumstances, the provision
must be wrong. If the Solicitor-General can reassure us on Report or in
writing that we have misunderstood the position, so be it. Otherwise,
the Government will be constrained to do something about it, because it
is clearly incompatible with every principle of law in this country,
quite apart from the Human Rights Act 1998.
Mr.
Heath: I think the waters are rather murkier than might
have been presumed, so a little further consideration is required, but
if the Solicitor-General does not accept that and thinks that the
provision perfectly self-evident,
I have obviously failed to understand the
situation—which is entirely likely, as I do not have the
expertise in these matters of the hon. Members for Torridge and West
Devon and for Beaconsfield. If I have misunderstood, I would be
delighted if the Solicitor-General explained what I have
misunderstood.
The
Solicitor-General: Briefly, the intention of clause 13 is
to remove the right relating to self-incrimination in property cases.
However, if the person answers in civil proceedings, the evidence
cannot subsequently be used in a criminal trial—in a drugs case
of the sort to which the hon. Member for Torridge and West Devon
referred and which I said I would examine in greater depth. If the
person refused to answer questions in civil proceedings, the privilege
against self-incrimination is not removed, if his answer relates to a
drugs offence. If a
person refused to answer but the civil judge ruled that subsection (1)
applied, and ordered him to do so, the use of the evidence is
prohibited by subsection (2). We do not consider that a criminal judge,
who has to comply with human rights legislation, would take a different
view from a civil judge. Even if neither applied the Human Rights Act
1998, the evidence would be excluded under section 78 of the Police and
Criminal Evidence Act 1984. I think that we are covered, but I hear
what the hon. Gentlemen have said, so I shall look again at this
complicated area of law. On the face of it, the provision seems
reasons, but, as I have indicated, I will look at it
again.
Mr.
Heath: I am grateful to the Solicitor-General and look
forward to hearing his further consideration at a later
stage.
Mr.
Cox: I wonder if I might make a supplementary point on the
clause. I am necessarily thinking as I go along, but I ask the
Solicitor-General to consider one further point. Under subsection (1),
and leaving aside the question of “complying with any
order” for now, the person would not be excused from
“answering any question put to him
in proceedings relating to property...on the ground that doing so
may incriminate
him”— leaving
aside also the other persons referred
to— “of an offence
under this Act or a related
offence.” It would appear
that if what the Solicitor-General just said is correct, someone would
retain their privilege if answering might incriminate them of a drugs
offence. That was the Solicitor-General’s answer to my question.
In those circumstances, the defendant would be entitled at the first
stage to say to the civil judge, “I am not answering because my
answer may incriminate me of an offence.” The difficulty I
foresee is that the judge in a civil case will not be able to inquire
much further. He may have to say, “Will you tell me for what
offence you think I may afford you the grounds to refuse before I can
decide whether you are correct?”
I foresee
some difficulty that may benefit from further consideration by the
Solicitor-General. Would he be good enough to write to me on how the
system would work under clause 13? Clearly, if the offence is a drugs
offence or another offence unrelated to property, the system will be
highly unsatisfactory at the civil stage of proceedings. I imagine that
it will be a judge with a glowering face who faces a litigant who says,
“I am
taking the fifth and the offence is not one relating to
property.” It is difficult to see how the system will work, so I
would be most grateful for further
examination. The
Solicitor-General: I am very happy to consider
that.
Mr.
Heath: The hon. Member for Torridge and West Devon raised
a point that I was coming on to: the fact that the litigant must decide
during the civil proceedings what he might be accused of at a future
stage by a prosecuting authority. He must decide about the range of
offences on which he might be indicted before seeking to excuse himself
of giving evidence. That is not an entirely satisfactory position to be
in. Given that the Solicitor-General has said that he will reconsider
the matter and communicate his views to the Committee, and with the
specific leave of the hon. Member for Torridge and West Devon because I
do not want to catch him out again, I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Clause 13 ordered to stand
part of the Bill.
Clause
14Minor
and consequential amendments
etc. Question
proposed, That the clause stand part of the
Bill.
The
Solicitor-General: The clause gives effect to schedules 1,
2 and 3, which set out, respectively, the legislation to be amended,
the transitional provisions and savings and the legislation to be
repealed by the Bill.
Question put and agreed
to. Clause 14
ordered to stand part of the Bill.
Clause
15Commencement
and
extent
Mr.
Heath: I beg to move amendment No. 16, in clause 15, page
6, line 11, at end
insert— ‘( ) The Secretary
of State may not appoint a day by order for section (Abolition of
conspiracy to defraud) until he has received a report on the operation
of this Act, and in any case not earlier than three years after the
commencement of the
Act.'.
The
Chairman: With this it will be convenient to discuss the
following: New clause 2— Abolition of conspiracy to
defraud— ‘(1) The common
law offence of conspiracy to defraud is abolished for all purposes not
relating to offences wholly or partly committed before the commencement
of this Act. (2) An offence is
partly committed before the commencement of this Act
if— (a) a relevant event
occurs before its commencement,
and (b) another relevant event
occurs on or after its
commencement. (3)
“Relevant event” in relation to an offence, means any
act, omission or other event (including any result of one or more acts
or omissions) proof of which is required for conviction of the
offence.'.
New clause 9—Abolition
of conspiracy to
defraud— ‘The
offence at common law of conspiracy to defraud shall be abolished and
no further prosecution brought thereunder, upon the expiration of a
period of five years from the day on which this Act is passed, unless
there has been a resolution of both Houses of Parliament within the
said period to a contrary
effect.'.
5.45
pm
Mr.
Heath: We come now to the clauses on commencement. The
amendments deal with the common law offence of conspiracy to defraud.
We could have a long debate on the merits or otherwise of the offence,
but that would not be a productive use of the Committee’s time
because there is broad agreement on both sides that the common law
offence should be abolished. That is the theoretical position of the
Law Commission, which indicated that it was insupportable to retain the
offence in law once the new statute was in place as a replacement.
However, on Second Reading, the Minister said, quite properly, that
although he wanted the common law offence to be abolished, he had to
take note of the very strong reservations expressed in the consultation
process, not only by the wider spectrum of consultees but specifically
by parts of the judiciary, who together with some of the prosecuting
authorities perceived the offence of conspiracy to defraud as being of
value. I slightly
discount the opinions of prosecuting authorities, because it is always
helpful to them to have the widest possible number of offences at their
disposal to secure a conviction. For them to argue that they should
have a wider spectrum, even in the context of new offences, is to some
extent to be expected and is natural. However, it is not a position
that we as a legislature should take if we are content that the full
range of offences under the broad title of fraud is covered by the new
law. The offence of
conspiracy to defraud has been widely criticised. As I said on Second
Reading, one of my principal concerns about it is that, because it is a
catch-all offence, it provides a very straightforward route by which
the dual criminality requirements of an extradition application can be
met. It is easy to establish that someone has, or could have, committed
the offence in this country and that that person is therefore
extraditable on a related fraud offence in another country. I
instinctively feel that that is a dangerous
position. Despite
having listened to the arguments on both sides and being firm in my
conviction that the offence of conspiracy to defraud should be removed
at the earliest opportunity, I accept the Minister’s comment
that he would prefer a “suck it and see” approach in the
short term, so that an assessment can be made of how the new offences
bed down and of the pattern of prosecutions. He was kind enough to
provide the draft guidance for prosecutors, which I think is extremely
helpful. We therefore
have a choice. The first course of action open to us is to have a
period of review in which the Solicitor-General or the Attorney-General
carefully consider the prosecution patterns and whether there have been
offences that have proved impossible to prosecute except under
conspiracy to defraud, followed by introduction of new primary
legislation to abolish the common law offence. Alternatively, at this
stage and as a better process, we could incorporate into the
Bill a provision for abolition, with safeguards for the Minister in the
form of a delay in commencement, as I have suggested, or a sunset
clause for the offence, as suggested in the amendment tabled by the
hon. Member for Beaconsfield. Either approach ends at almost precisely
the same result. The hon. Gentleman’s approach has an
automaticity that mine does not—mine simply allows for a delay
in commencement of the relevant part of the Bill until such time as the
Minister introduces an Order in Council. To some extent mine is a more
Government-friendly amendment than the hon. Gentleman’s in that
his forces their hand, whereas mine invites them to consider the point.
The merit of both courses is that we would not have to start from
square one with a new Bill or find another suitable vehicle for the
repeal or abolition of the conspiracy to defraud offence. Either way,
the spade work is done, the legislation is on the statute book and
someone only has to press the button to make it
happen. Given that the
Solicitor-General has made it clear that he would prefer to abolish the
offence in due course, it is unquestionably better in procedural terms
to deal with it in the Bill now, rather than revisit the matter later.
However many Home Office and Department for Constitutional Affairs
Bills we have to deal with month in, month out and year in, year out,
hon. Members can bet their lives that someone will say that none of
them are appropriate for the specific purpose and there will be a
substantial delay, which is avoidable and unnecessary. I commend my
amendment and the new clause to the
Committee.
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