Examination of Witnesses (Questions 80-99)|
QC AND MR
14 MARCH 2003
Q80 Lord Waddington: Is there not
a third alternative which we should explore? You said that there
could be dangers about importing the concept of dishonesty, but
we are still left with a situation where this Bill stigmatises
as criminal conduct which you, I think, are conceding is not morally
wrong and should not be criminal. Another way of getting round
that problem is to follow the theme of a general prohibition but
then have specific exceptions. Surely you could eliminate a lot
of the nonsenses by a few well spelt out exceptions, like, for
instance, normal and reasonable and moderate corporate hospitality;
like, for instance, dealing with facilitation payments which are
made only in order to gain your legal rights, and without any
wish to corrupt the person to whom you are giving the money. Is
that a way forward, that we could spell out a few exceptions?
Mr Wardle: It is certainly a possible
way forward. Our experience is that if you do put in such specific
defences, then they will be pushed to the limit, and far beyond
the limit, and you end up having an argument not really about
what the problem is all about, which is paying people bribes,
corrupt payments, in order to get some advantage, but you have
an argument about what is right at the margin, when really I think
it should be for the jurors to say, "We stigmatise this conduct
because we think it is morally unacceptable that people give and
take bribes or act dishonestly."
The Committee suspended for a division
Q81 Chairman: I would
like to ask about the parliamentary position and also about the
role of the Attorney General. Some people feel very strongly that
the need for the Attorney General to give his consent to prosecutions
is a very necessary safeguard. Would it be desirable to make the
consent come from the Director of Public Prosecutions rather than
Sir David Calvert-Smith: Our submission
in the past, certainly our submission to the Law Commission, was
that it would be better that the public prosecutor be the filter
for malicious private prosecutions than the Attorney General,
who is, in the public eyes at least, a politician.
Q82 Lord Waddington: But we are told
that one of the disadvantages of that is that the DPP's responsibilities
can be delegated to the most humble prosecuting officer, so in
fact, it would not be a safeguard at all.
Sir David Calvert-Smith: I hope
it would, in that all the other DPP's consents to a prosecution,
which are probably into three figures, are theoretically exercisable
by any crown prosecutor. That is because the code of crown prosecutors
applies to me as to the humblest prosecutor. There are certain
offences the level of which we within the service have fixed higher
than every crown prosecutor, because of the particular sensitivities
of the case, probably because there are not many of them every
year and so on, so it is possible for a smaller group of prosecutors
to deal with the business, so to speak, but I do not accept that
for any crown prosecutor to give the DPP's consent is no sort
of filter for the kind of malicious prosecution which one can
imagine people taking out around about election time or whatever
it is, just to queer the pitch of their opponent in some campaign.
Q83 Chairman: Could you deal with
that kind of prosecution by the Attorney rather than requiring
consent in advance? Would that be practical or not?
Sir David Calvert-Smith: You could.
I believe that the stigma of it being announced that somebody
has been charged with something is such that, if there is absolutely
no basis and it is in fact a malicious or vexatious prosecution,
it should not be allowed to happen at all, rather than it being
put right later. Therefore I strongly support a leave or consent
provision, and I would not object to the Attorney having it. It
is simply that it occurred to us at the CPS that, particularly
if we are going to move on to the question of the parliamentary
privilege issue and possible prosecution of politicians, the Attorney's
leave might be perceived by the public as a bit odd depending
on which party it was the defendant belonged to.
Q84 Chairman: But in your view, it
would be practicable as well as desirable that it should be the
Director who should give the consent rather than the Attorney?
Sir David Calvert-Smith: On balance,
Q85 Chairman: You could perhaps avoid
the difficulty which Lord Waddington rightly raised about specifically
providing that the decision had to be taken either by the Director
per se or by a named deputy or alternate.
Sir David Calvert-Smith: Exactly.
Q86 Baroness Whitaker: If the mandate
of the Serious Fraud Office were widened, would there be any objection
to consent being required from the Director of the Serious Fraud
Mr Wardle: No, I do not see any
difficulty there. We have a relatively small number of cases,
and I know each one to a greater or lesser extent. As far as our
cases are concerned, very often the consent of the Attorney has
to be obtained but one wonders why. It is not that sort of case
where there is a risk of malicious private prosecutions, particularly
in the private and semi-private area. It is not something that
troubles me either way. I would be quite happy for the Attorney
to continue giving his consent if he wants to do so, and the House
felt that was proper. Equally, I would be quite happy for a scheme
to be put in place whereby it was made by myself personally in
Serious Fraud Office cases or a nominated deputy. An alternative
might be to follow the example in the Enterprise Act, where prosecutions
may only be brought, for example, by either the Director or by
myself or by a Secretary of State.
Q87 Baroness Whitaker: That is a
very interesting example, because if your mandate were broadened,
it is your organisation which would have the expertise, including
going overseas, which we heard the other day from the police causes
problems. So you would be in a position to use your discretion
as to when to prosecute, with perhaps more background, better
information, than the more generalised services.
Mr Wardle: Yes, and the advantage
of course is in that we direct and carry out the investigations
ourselves. We would be able to say, "No, we will stop this
now because the evidence is not coming along and we will never
be able to give consent" perhaps at an earlier stage than
the police were able to do, and thereby save the expenditure of
resources, money and the like.
Q88 Baroness Whitaker: Might you
be in a position to judge the public interest in a prosecution?
Mr Wardle: I think so, yes. I
think we have to do that, obviously, when we decide to prosecute,
and increasingly we have to do that when we decide whether to
take a case on, because if it is not going to be in the public
interest to prosecute, for whatever reason, then we do not want
to spend many tens or hundreds, or even millions of pounds, investigating
something to no end.
Chairman: Let us turn to the question
of Parliament. There are obviously some very serious issues which
need to be raised in relation to possible investigations and prosecutions
of Members of Parliament.
Q89 Lord Campbell-Savours: Can I
ask you, Sir David, what do you actually think of the process
of consultation with the Parliamentary Commissioner for Standards?
Sir David Calvert-Smith: About?
Q90 Lord Campbell-Savours: In the
case of prosecution of Members of Parliament.
Sir David Calvert-Smith: So that
at the stage that we are about to make a decision, we would be
required to consult the Parliamentary Commissioner?
Q91 Chairman: Required by what?
Sir David Calvert-Smith: I am
Q92 Lord Campbell-Savours: I am asking
what you think of the proposition of a process of consultation.
Sir David Calvert-Smith: I would
have imagined that, were Clause 12 to be enacted, a protocol would
have to be drafted in which such a consultation would be mandatory.
Q93 Chairman: That would have to
be in the Bill specifically if it were made mandatory?
Sir David Calvert-Smith: There
are a number of fields in which we have protocols with various
bodies which we regard as mandatory and which are public, and
which therefore if we do not comply with we will be in trouble
in court, and there are a number of others where the statute has
requiredfor instance, the Code for Crown Prosecutorsfor
us to produce some document or other against which we agree to
be measured. Whether it was in the statute or whether it was by
voluntary negotiation between the Commissioner and ourselves,
I am quite sure, one way or another, there would have to be a
chain of communication.
Q94 Lord Campbell-Savours: You would
be perfectly happy with that?
Sir David Calvert-Smith: Yes.
Q95 Chairman: Do you think it could
be done without it being put in the Bill?
Sir David Calvert-Smith: If it
were not done in the Bill, we would do it, so I suppose the answer
Q96 Lord Campbell-Savours: We were
told by the police last weekthey were talking about how
they would investigate an allegation of corruption against a Member
of Parliamentthat it would include proactive operations,
which we conclude to be covert and intrusive surveillance, perhaps
use of technical equipment, interviews under caution, but with
a focus on evidence which could actually be used in court. Do
you think that is reasonable in relation to elected Members of
Sir David Calvert-Smith: I think
it is reasonable. I suppose that depends on the scale of the allegation
that you are considering. If it really is, to go abroad for a
moment, a Lockheed situation, as in Japan, I would think the public
would want every possible means available to an investigator to
detect it and to bring it to justice. So I would not want to rule
out any means of investigation simply because it was an investigation
of an MP.
Q97 Lord Campbell-Savours: You would
have no objection to that happening without you knowing that that
was going on? It is the police that would be carrying it out.
Sir David Calvert-Smith: Yes.
This is of course where Robert's function and mine differ. Robert
rightly points out in his favour that he would have control over
that sort of investigation if it were an SFO case, whereas currently,
albeit we are now entering into protocols, to go back to your
previous question, with the police about pre-charge advice and
circumstances in which the police undertake to come to us for
advice before they do various things, the constitutional position
is that the police can now do what they wish.
Q98 Lord Campbell-Savours: So Robert
would have no trouble doing that at all.
Mr Wardle: Let me put it this
way. If I investigate, before I can investigate, I have to have
reasonable grounds for believing that an offence involving serious
or complex fraud has been committed, and if those grounds suggested
that it had been committed by an elected Member, I would have
no difficulty, using all the legitimate, legal, investigative
tools at my disposal, including using the powers of interview
under s.2 of the Criminal Justice Act 1987, which require people
to answer questions on pain of prosecution; I would have no difficulty
about using intrusive surveillance if that were appropriate under
the Regulation of Investigatory Powers Act, or any other legal
method of obtaining evidence.
Q99 Lord Campbell-Savours: I am sorry
to press this, but I am sure many people in the House of Commons
will be interested in your comments. You do not feel that that
could in any way be abused by perhaps an individual officer who
might veer further than perhaps the precise remit in that particular
inquiry? We are dealing with people elected to Parliament.
Mr Wardle: There is always that
risk. Certainly as far as our cases are concerned, they are controlled
by lawyers at very senior level who report to me, and I act under
the superintendence of the Attorney. If an elected Member were
involved, I think we would take every precaution, and we would
discuss this with the police and various security or intelligence
services before taking any such measure.