Mr.
Heath: I am most grateful to the hon. Gentleman, who
speaks with experience that I do not share.
I do not want to labour the
point. I welcome what the Solicitor-General has said, although I regret
that he did not say that he would allow the proposals to bed in and an
objective assessment to be made of its effect on jury trial before
bringing forward primary legislation. I still hope that that might be
the case, although it was not explicit in his
comments. The fact
that the Bill has been broadly welcomed in all parts of the Committee
and that we are, I hope, proceeding with it expeditiously suggests that
we all share the same objective. The fact that we profoundly disagree
on one point is unfortunate, but it is a disagreement that we can argue
about if and when primary legislation is brought forward. On that
basis, I beg to ask leave to withdraw the
motion. Motion and
clause, by leave, withdrawn.
New Clause
3OFFENCES
OUTSIDE THE UNITED
KINGDOM ‘(1) Any act done by
a person in a country or territory outside the United Kingdom
which— (a)
constituted an offence under the law in force in that country
or territory, and (b)
would constitute an offence under this Act if it had been
done in England and Wales or in Northern
Ireland, constitutes that
offence under the law of that part of the United
Kingdom. (2) Any act punishable
under the law in force in any country or territory constitutes an
offence under that law for the purposes of this section, however it is
described in that law. (3)
Subject to subsection (4), the condition in subsection (1)(a) is to be
taken to be met unless, not later than rules of court may provide, the
defendant serves on the prosecution a
notice— (a)
stating that, on the facts as alleged with respect to the act
in question, the condition is not in his opinion
met, (b) showing his grounds
for that opinion, and (c)
requiring the prosecution to prove that it is
met. (4) The court, if it
thinks fit, may permit the defendant to require the prosecution to
prove that the condition is met without service of a notice under
subsection (3).
(5) In the Crown Court the question whether the
condition is met is to be decided by the judge alone.'. —[Mr.
Heath.] Brought
up, and read the First
time.
Mr.
Heath: I beg to move, That the clause be read a Second
time. Again, I do not
intend to press the new clause to a Division, but it is important that
the Committee at least consider whether we should have jurisdiction for
fraud beyond our national jurisdiction. The issue was discussed in the
gestation of the Bill and there are conflicting views on it. I do not
advocate international jurisdiction other than in clearly defined
cases. When we debated the previous amendment, we discussed US
jurisdictions, some of which claim extraordinary extraterritorial
scope, way beyond what is reasonable in either law or common sense,
particularly in commercial law.
With fraud, there is great
cause for concern in some areas, as it can easily be perpetrated on
British citizens from outside our national jurisdiction. It is not like
knocking someone on the head; one is unlikely to be standing in another
jurisdiction—except, perhaps, Gretna Green—and knocking
on the head someone within the confines of England and Wales. Fraud is
an offence of a different sort, which can easily be perpetrated from
abroad. I know that
there is much collaboration and co-operation between law enforcement
and prosecuting authorities in other countries to deal with this
worldwide phenomenon, and I certainly do not propose that the English
and Welsh prosecuting authorities should seek to investigate and
prosecute fraud wherever it happens in the world, which would be
absurd, but there are occasions on which fraud has an international
dimension, which might obstruct the successful prosecution of a fraud
perpetrated on someone in this country—possibly by a British
national who is in another jurisdiction. There might be difficulties
because of the clear territorial limits on the offences as they stand
in securing a successful
prosecution. Let me
give a few brief examples. The first is obvious: multinational
corporations. We live in an increasingly multinational, global,
commercial world, which means that bodies corporate often work in many
countries and jurisdictions and have subsidiaries that might not trade
in this country. A company with an office in the great state of
Delaware, or, worse, in Liberia, might perpetrate fraud against an
individual or company in the United Kingdom. I want it to be clear that
there will not be a defence that allows a company operating in this
country that has committed an offence to avoid successful prosecution
by arranging its business so that the fraud is effectively perpetrated
by a subsidiary company that is not registered or trading from this
country, but is nevertheless under the control of that British company.
I hope that that is covered by the Bill, but I am not confident that it
is. My second example
is unsolicited mail. We and our constituents receive torrents of
unsolicited mail, some of which I believe constitutes fraud. A few
years ago, I brought to Parliament’s attention a case in which a
clairvoyant was threatening vulnerable people with consequences through
her enhanced psychic awareness. She said that major events would occur
if the targeted
person did not secure her protection by virtue of an amulet or other
device, which would protect her from the inevitable consequences of not
paying over money to an address abroad so as to secure that
protection. That
abhorrent correspondence was carried through the Royal Mail from a
business address in the Netherlands, and was of great concern to the
people who were vulnerable to that sort of material. I think that that
fraud would not be prosecutable under the Bill. Perhaps the Minister
will say that it would be, but I do not think that he can. I think that
other measures need to be
taken. Frankly, it
appals me that despite the fact that these matters are drawn to the
attention of Royal Mail, it, as a carrier, is still prepared to take
bulk mailings of extremely questionable material, but that is by the
by. I want to ensure that when fraudulent materials that are sent
through the post are involved, the matter can be prosecuted if it is
possible to secure an extradition and an
arrest. Some
unsolicited mail is sent electronically. We are all familiar with the
famous west African scam, which seems to have gone global—it is
no longer just relatives of President Abacha who will have untold
amounts of money available if they can persuade people to part with a
small amount to establish a new bank account. Relatives of President
Marcos in the Philippines, or any recently deposed despots who appear
to have many relatives with access to large amounts of money, say that
all they need is a British bank account so as to secure untold riches
for the unsuspecting recipient of their
communication. Most
people are aware that this is a scam, but there must be some who are
not or it would not continue. Some unfortunates must lose a lot of
money as a result, and it is important for us to provide as much legal
protection as possible for those
people. I want to draw
the Committee’s attention to something that was brought to my
attention in my constituency surgery last week, and it is a new one on
me. A gentleman came in outraged because he had applied for death
certificates on the internet and had been charged in euros. His
original outrage related to the fact that a Department—part of
the British Government—was charging in euros rather than pounds
sterling, which is the sort of complaint that we get in my part of the
world. He thought that an extraordinary state of
affairs. I
investigated the matter because I thought it sounded odd and I
uncovered the fact that a website purporting to be a British Government
website—it even has the appellation .gov—is selling
Government certificates to people who do not know better. It appears in
the search engines above the Government’s own websites and sells
certificates at a higher cost than they do. The person concerned buys
forms for £7 from the Government and sells them for £21
as a private enterprise while purporting to be a
Department. The view
of the registrar’s department was that there is no illegality in
such transactions, although it obviously deplores and would like to
deal with them. I hope that they will be illegal under the new measure,
because it would be a misrepresentation if a person purported to be
connected with the Government when they were not. Even so, I am not
convinced that such a
thing could successfully be prosecuted under the Bill because the person
involved in the case that I cited is based in France, in spite of the
fact that he has a .gov.UK
website. There
are strong arguments for international jurisdiction. The
Under-Secretary’s argument at the conclusion of the debate on
Second Reading drew a distinction between corruption and fraud. I would
like the Bill to have included corruption, but my amendments were out
of order in that respect, which is right. He
said: “The
resource implications for ‘policing’ UK nationals
worldwide for fraud are therefore much larger. The cost would need to
be carefully examined before any party committed itself to
it.”—[Official Report, 12 June 2006; Vol. 447, c.
580.] Yes, of course.
The same applies to sexual offences in respect of international
jurisdiction, but we cannot police every transaction and investigate
every
allegation. 9.30
am However, the
capacity to indict and successfully prosecute is an important part of
the armoury of our national jurisdiction on the offence because it can
so easily be perpetrated by someone outside our territorial boundaries.
I invite the Solicitor-General to comment on my remarks, explain the
reasoning that has led the Government to believe that we should seek no
form of international jurisdiction in the Bill, and say whether they
will keep that position under review or whether they will return to
it.
The
Solicitor-General: The hon. Gentleman raises a number of
issues, some of which touch on points made earlier, particularly the
question of where we draw the line between what is and ought to be a
crime of fraud, and what is a commercial relationship that we decide
should not be criminal, in which the buyer needs to beware, but where
there are various safeguards through advertising regulations and other
means, and where there are civil rights. The hon. Gentleman also asked
what we should be prepared to prosecute in our courts, where actions
are committed by persons
abroad. The UK does
not have jurisdiction over foreign companies, wherever their ownership
is, for acts carried out overseas that have no impact in the UK.
However, if the fraud results in a loss of property in the UK, we have
some jurisdiction. Part I of the Criminal Justice Act 1993 confers
jurisdiction over certain crimes of dishonesty if a “relevant
event” occurs in England and Wales, which is defined
as: “any act or omission
or other event (including any result of one or more acts or omissions)
proof of which is required for conviction of the
offence.” Paragraph
24 of schedule 1 to the Bill amends definitions of offences for the
purposes of the jurisdictional provisions of the 1993 Act, deleting
references to offences that are repealed and adding references to new
offences. Those changes ensure that the wide jurisdictional provisions
of the 1993 Act apply to the new fraud offences so that, in a phishing
case, for example, where a false representation is made in the UK, it
does not matter whether the offender is operating from abroad, because
he may be caught by the offence in clause 2.
In addition, paragraph 25 of
schedule 1 amends section 2 of the 1993 Act to ensure that the offence
of
fraud in clause 1 can be prosecuted if the only event that takes place
in this jurisdiction is the gain or loss of property. That provision
covers cases where fraud committed entirely overseas leads to the
removal of funds from a bank in the UK. I hope that with those
reassurances, such as they are, the hon. Gentleman will feel able to
withdraw the motion. The ambition of the new clause
is extraordinary. It seeks to broaden our courts’ jurisdiction
over fraud offences committed by anyone located anywhere in the world
where fraud is a crime. The new clause is so extraordinarily wide that
I dare say that it would collapse under the weight of its own ambition,
as it would require anybody—not just UK nationals who live in
jurisdictions where fraud is a crime—to behave in accordance
with UK fraud law. A citizen of the USA or France, or anyone else for
that matter, who commits acts while in their home country or anywhere
where fraud is a crime, would face prosecution by UK prosecutors, even
if the crime had no impact in the UK. The hon. Gentleman indicated that
that is not his intention, but it would be the effect of the new clause
as drafted. We want
to ensure that fraudsters, where they can be properly dealt with in our
courts, are so dealt with. They can be located in any number of places
all over the world. We have all heard about the number of sinister
scams over the years involving Spanish lottery frauds or African
advanced fee frauds. Such cases already have some coverage under the
1993 Act. If it is the case that proof of any act or omission if is
required for conviction—for example, if the deception or gain
takes place in the UK—our jurisdiction will cover
it.
Mr.
Heath: I am extremely grateful to the
Solicitor-General for his helpful comments. He admonished me a little
on the drafting of my new clause. The provision is analogous to that
set out in the Sexual OffencesAct 2003 and uses almost exactly
the same terms. It is not such an extraordinary provision, as the
British Government already have the jurisdiction or ability to
prosecute for any sexual offence carried out by any person anywhere in
the world on the exact same basis. That is the section that I have
lifted, effectively en bloc. Of course, the limiting factor is the
decision to investigate and prosecute. It is completely impractical to
investigate and prosecute every offence that occurs anywhere, and we
would not wish to. The new clause would allow there to be no blockage
to procedures against any person.
I share some
of the misgivings about extra-territorial jurisdiction. Indeed, I often
criticise the ambitions of the United States in that respect and the
fact that that its jurisdiction applies to British citizens as a result
of the extraordinary asymmetric extradition arrangements we have with
it, but that is another matter.
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