Examination of Witnesses (Questions
260-279)
WEDNESDAY 6 MARCH 2002
MR BRIAN
BENDER CB, MR
JOHNSTON MCNEILL
AND MR
HUGH MACKINNON
260. The people who would lead the prosecutions,
are they part of the 60 or additional to the 60?
(Mr MacKinnon) They present the case very much as
the police do. They do that job up to the point where—
261. They are part of the same 60?
(Mr MacKinnon) Yes.
262. It is not an additional group of people?
(Mr MacKinnon) No.
263. Why did the police politely decline to
prosecute?
(Mr MacKinnon) I do not think we know the answer to
that. They decided that they would not proceed with it. They were
congratulated by the judge for their part in the proceedings.
264. Would that normally be the case, that there
would be a gentlemen's pass the parcel until one of you, usually
you, ends up with it?
(Mr MacKinnon) I could not tell you statistically
but I am aware from my involvement in a number of cases that there
have been a number of cases where the police have been involved
and they have decided not to bring the prosecution but that is
very much a matter for them.
265. Is there any discussion with the CPS?
(Mr MacKinnon) There is indeed, yes.
266. They do not prosecute either, it is left
to you really?
(Mr MacKinnon) We would need to satisfy the CPS that
there was a case to take into court.
267. Of the 10,000 cases which we have now identified
rather than the 2,500 which we have now identified coming from
the public, you have got 60 people to sift through those and get
it down to one or two. Am I right in saying that you are dealing
with five per cent of the 10,000 since I do not believe that the
60 are adequately covering 10,000 cases in a year?
(Mr MacKinnon) A lot of those will be cleared at a
very early stage because although this may have seemed odd to
the informant, what is going on has a perfectly rational explanation
and will take no time at all.
268. Can I just turn to one other subject and
then I will draw my questions to a close, which is the issue of
recovering money. Has the department now taken a fresh look at
this? What is the current policy in relation to that matter? I
do not know about my colleagues but I guess our view would be
that we were not very quick off the mark here. Is there now a
new policy?
(Mr Bender) There was a new policy that was confirmed
in the year 2000 about being, as you say, quicker off the mark.
In the light of this report we are looking at our guidance, again,
to make sure it is crystal clear to avoid misunderstandings.
269. If I was a person in the situation that
Joseph Bowden was in, I think I would go bankrupt. I think I would
go bankrupt by encouraging my wife or somebody who was close to
me to set up a number of companies and to invoice me for large
amounts of money and thereby legitimately transfer all of this
illegitimate money out of my assets as debts to somebody else.
I have gathered the impression that we have not really asked how
this bankruptcy came about other than he has only had the one
holiday in ten years. He went to the Bahamas and he may well have
taken a suitcase of money over. Assuming that he legitimately
went bankrupt in the sense that invoices were produced and so
on, was any effort made to look at the possibility that he has
displaced his assets somewhere safe?
(Mr MacKinnon) We always have to make a judgment as
to whether it would be worthwhile to take civil action for recovery.
There was nothing in this case to indicate that there was sufficient
substance there in Mr Bowden's case to take civil action for recovery.
The prosecution having taken place, there was good evidence as
to what had been going on and a higher degree of proof had been
met in that case.
270. I have to say that I feel the department
continues to fail to demonstrate that it is sufficiently diligent
in prosecuting rather than taking other measures. The other conclusion
I would draw is you have been insufficiently diligent in pursuing
assets which are rightly the public's which have gone into private
hands by one means or another. Before I give myself a last word
on that I wonder if you would just like to comment?
(Mr MacKinnon) Can you just say that again?
271. My conclusion is that you are insufficiently
diligent in taking prosecutions, I think you should be taking
more to make it clear to the farming community that the one or
two miscreants will be dealt with firmly and publicly. Secondly,
you have been insufficiently diligent in pursuing frauds. Your
responses today indicate to me that you are, perhaps complacent
is one word, and have not given thought really to what you might
have done—perhaps that is complacency—and therefore
to draw lessons on what might be done in the future.
(Mr Bender) I really do want to contest the use of
the word "complacent" because that is one thing we are
not on these issues. I think on the question of the action we
take in respect of something that is between an irregularity or
a clear fraud, this is a matter of judgment as to how many we
should pursue to prosecution bearing in mind the resource effort,
the Attorney-General's guidelines and so on. I do know that it
is something that the Committee has expressed views on in the
past and we will obviously look carefully at what conclusion the
Committee reaches this time. On the question of pursuit of assets,
I was concerned when I read the NAO Report about the way in which
the department at the time had handled the balance between the
criminal case and the civil proceedings, the action to recover
or freeze the money. We changed the rules in 2000 and we are looking
again, as I said earlier, at the clarity of the guidance we are
giving on recovery of assets, so I am not complacent on that either.
272. Let me just quickly go to page 23, Appendix
3. It has been drawn to my attention that the proceedings for
the Arable Area Payments Scheme, the third box, indicates the
computer database carries out automatic checks, including map
references.
(Mr Bender) Yes.
273. Is that something which has happened since
these incidents or is that something which was happening at the
time, it is not clear from the report.
(Mr MacKinnon) The Arable Area Payments Scheme has
always had map references in it. They have always had to give
full map references.
274. It was because of the other scheme.
(Mr Bender) Exactly.
Chairman: Thank you, Mr Trickett. The last questioner
is Mr Alan Williams.
Mr Williams
275. Picking up on three or four small points.
In answer to Mr Steinberg, you said that one of the cases was
not pursued against him, the one referred to on page 13.
(Mr MacKinnon) Yes.
276. Because the judge said there was not enough
evidence. On page 13 it says that it was not pursued by the prosecution
although the court allowed the charge to lie on the file.
(Mr Bender) Yes.
277. Do those mean exactly the same thing or
is that saying something different?
(Mr McNeill) Sorry, I responded to that question.
I said I was not a lawyer, I was trying to give you my understanding
of that but that I would ask our lawyers to write to the Committee
and explain the detail of what exactly that meant in this particular
case.
278. Looking at the three cases that were allowed
to lie on the table, it does raise in one's mind the possibility
that since he had 18 charges against him and since he then changed
his mind on nine of them and pleaded guilty that he may have struck
a deal.
(Mr Bender) I think that is right.
279. A deal was done?
(Mr Bender) Because he pleaded guilty to some charges
there may have been some element of plea bargaining, so to speak,
in what the judge decided to pursue as opposed to leave on the
file. We will clarify that.
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