Standing Committee B
Tuesday 18 December 2001
(Morning)
[Mr. John McWilliam in the Chair]
Schedule 3
Powers of interim receiver or administrator
10.30 am
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I beg to move amendment No. 309, in page 262, line 20, leave out from 'may' to end of line 22 and insert
The Chairman: With this it will be convenient to take the following:
Amendment No. 359, in page 262, line 27, leave out sub-paragraph (3)(c).
Amendment No. 360, in page 262, line 29, leave out sub-paragraph (4).
Government amendment No. 310.
Mr. Ainsworth: Amendments Nos. 309 and 310 alter the provisions giving protection against self-incrimination under paragraph 2, which gives the interim receiver or administrator the power to obtain information or to require a person to answer a question. It is a significant power and may result in the person providing evidence against himself. Sub-paragraph (3) therefore makes provision as to the circumstances in which compelled answers can be used in legal proceedings.
As the schedule is currently drafted, compelled answers may be used only in civil recovery proceedings in a prosecution for perjury or for some other offence if, in giving evidence, the defendant makes a statement inconsistent with that, and the statement arises out of the defence case. We are clear in our mind that an answer should not be used in relation to criminal proceedings, except as described under the schedule.
We consider, however, that the provision in relation to the use of compelled answers in civil proceedings is currently too narrow. Sub-paragraph (3) will allow an answer to be used in relation to civil recovery proceedings, but not in any other civil proceedings. That is too restrictive. The restrictions under paragraph 2 of the schedule in relation to criminal proceedings reflect the Strasbourg case of Saunders v. United Kingdom, which has no relevance to civil proceedings. We therefore see no reason why an answer given in response to the exercise of the power under paragraph 2 should not be available for all civil proceedings.
Amendment No. 309 establishes that an answer may not be used in criminal proceedings except as provided for under the schedule. There is no change to the conditions under which it may be used. There is therefore no change to the position in criminal proceedings. The effect of the amendment is, however, that the answer can be used in all civil proceedings, not only in civil recovery proceedings. The amended provision will also be consistent with the self-incrimination provisions under clause 349, which relate to the use of statements made under disclosure orders.
Amendment No. 310 is consequential on amendment No. 309.
Mr. Dominic Grieve (Beaconsfield): Given that the Minister approaches the matter from one direction while I approach it from another, our amendments touch on different issues. The hon. Gentleman is attempting to widen the use and scope of the evidence that has been given effectively under compulsion in civil proceedings. Our amendments, particularly No. 359, were tabled to see whether we should narrow the scope under which the information provided could be used in criminal proceedings. Amendment No. 360 is more of a probing amendment under which we want to explore the intention behind sub-paragraph (4), because we consider that it is slightly convoluted. I look forward to hearing the Minister's response.
I will deal first with the Minister's amendments. I understand that the reasoning behind the provision is to widen the replies and to allow their use in relation to civil procedures generally. However, given the unusual nature of the power, the clause should not be maintained as it stands. I shall be interested to hear from the hon. Gentleman how the intention to depart from the current practice was derived. There is currently a restriction on allowing such information to be adduced in civil proceedings. Is he seeking to widen the powers, when we should be going in the other direction? That said, if he can persuade me that there are good and sufficient reasons why such information—which is effectively supplied under compulsion for a specific purpose—should then be made available in civil litigation, I shall not press the amendment to a Division.
The matter raises other issues. When the receiver is carrying out the receiving, full proceedings may not have taken place. Indeed, the information supplied to the receiver will have been stored and may not lead to a successful civil recovery. In subsequent civil proceedings, individuals—I assume that, in respect of civil litigation, we are talking about litigation between individuals and corporations—may seek access to material that the receiver has obtained and held confidentially. How would that information be obtained from the receiver? Does the civil litigant make an application to the court and say, ''I believe that, in the course of an investigation, the receiver asked questions of an individual to which replies were given. May I have access to those replies?'' What are the criteria, in respect of confidentiality, that would be applied by the receiver and by the court to make that information available?
The Minister put forward a broad proposition. It should, in principle, be possible for information previously supplied to the receiver to be made available in civil litigation. How, in practice, would that be carried out? I worry about that. It would have been much simpler to retain the confidentiality provision, especially because the information that the receiver is obtaining is not necessarily linked to any wrongdoing by that individual. At the time that the receiver obtains the information, the wrongdoing will not have been proved.
I shall return to the Government amendments when I have heard the Minister's reply. I shall now discuss my amendments. In respect of the criminal law, is it correct that we should allow evidence to be adduced when, in giving evidence in the prosecution of some other offence, the defendant made a statement that was inconsistent with a statement that he had previously made to the receiver? In my experience, there are instances when statements or signed documents that were prepared during litigation were not made available to the court in criminal proceedings, even though they showed a contradiction.
I recall a case that I was prosecuting, in which a defendant in the witness box gave certain information about his finances that sounded extremely odd. When I looked at his legal aid application form, I found that he had signed a document that gave completely contradictory information. As the rules stood, even though that document was available to the court and I had seen it, I was not allowed to cross-examine the defendant about his legal aid application form because of its confidential nature. The principle is well established that, in some circumstances, even if a defendant in the witness box makes a statement that can be contradicted by other evidence that is available, it may not be possible to consider that evidence because of its nature in the circumstances in which it was originally supplied.
Mr. Nick Hawkins (Surrey Heath): I am listening carefully to my hon. Friend. What he has just said about his professional experience reminds me of a not dissimilar case that further reinforces his point. The case involved not me but a colleague in chambers, who was in the embarrassing position of having been instructed by a client who had paid for solicitors and counsel privately, but, unbeknown to my colleague, had separately submitted a legal aid form with completely contradictory information about his finances. The matter could be examined only because the judge became aware of it. As my hon. Friend knows, if a judge becomes aware of a clear inconsistency relating to legal aid, he may make entirely separate inquiries. As a result, the solicitors and counsel had to withdraw from representing the client and the entire case had to be stopped and started again with fresh counsel, because the defendant had plainly deceived the legal aid authorities. However, it was not possible for any of the counsel to cross-examine, just as my hon. Friend describes.
The Chairman: Order. I remind hon. Members that interventions should be just that. That one was too long.
Mr. Grieve: I am grateful to my hon. Friend the Member for Surrey Heath (Mr. Hawkins) for his intervention and for developing it at length to explain his recollection of a case that tallies exactly with my experience.
In my experience, it is not impossible or, indeed, unusual for material evidence to be available at a criminal trial on which the prosecution or defence counsel would not be allowed to rely even though it shows a material inconsistency with what a defendant has said in the course of giving evidence in the witness box. I wonder whether we should allow such evidence to be given in cross-examination.
As I said, amendment No. 360 is a probing amendment. I should like confirmation from the Minister that the wording provides, as I believe, merely that the defendant himself must adduce the evidence that can subsequently be rebutted. I note that because of the use of the phrase ''on his behalf''. Evidence can be submitted on someone's behalf in several ways. One is by another witness for the defence saying something in the witness box that is materially inconsistent with a document that the defendant has provided or a statement that the defendant has made to the receiver. Are such circumstances intended to be covered, or is the intention merely to cover circumstances in which the defendant makes a statement in the witness box that is inconsistent with a statement that he has made previously to the receiver, or—a second possibility—circumstances in which his counsel makes on his behalf a formal admission that is inconsistent with evidence given to the receiver? As long as only those two categories are involved, I am content with sub-paragraph (4) as it stands. If, however, the provision is being widened in scope to include evidence called on behalf of the defendant that is inconsistent with what the defendant has said to the receiver, I would have serious objections, for obvious reasons, as that would not be what the defendant himself said. I wait to hear from the Minister about the arguments that I have made about his amendments, and I hope that he will provide reassurance and comment on mine.
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