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Mr. Heath: What is the hon. and learned Lady's view about maintaining a distinction between the SFO and the new agency in the first instance? When the Solicitor-General was questioned about that matter, she advanced the argument that because of the combined prosecution and investigatory role of the SFO, it must be a separate body. However, I was not entirely convinced and would welcome the hon. and learned Lady's view.
Vera Baird: That is a rather broad issue to raise in connection solely with this power. I agree with the hon. Gentleman to the extent that I am not convinced that that justification is one that would necessarily make for permanent separation. Irrespective of whether one merges the two, however, it is more or less inevitable that the use of disclosure notices will be much more frequent than it ever has been under the Serious Fraud Office. I am worried about its being delegated too far down and about the huge consequences of refusing to comply with a notice, whether rightly or wrongly imposed.
I have two more concerns about disclosure notices. First, whatever the person says under the pressure of such a notice cannot, rightly, be used in evidence against them, but assuming that what they have said is, in the ordinary course of events, disclosed to anybody who is a defendant in a case that follows, it will be impossible to put the person who is the subject of the disclosure notice on trial with those defendants. Although the Crown will not be able to put to the person who is the subject of the notice what they have said, the co-accused most certainly will, and they will use it to discredit that individual and to put the blame on to him
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if there is the slightest inconsistency between what he says in court in his defence and what he has said under the pressure of the disclosure notice. I fear that the information that emerges from the use of these disclosure notices will be used in evidence and weigh on guilt and innocence, and that that will give people second thoughts about complying with them.
Mr. Tony McWalter (Hemel Hempstead) (Lab/Co-op): Will my hon. and learned Friend vouchsafe to me her expertise on whether the procedure in clauses 56 and 57 might compromise the situation of journalists; or are they excepted by the provisions governing privileged information later in the Bill?
Vera Baird: My understanding is that they do not need to fall within the ambit of privilege, because the Bill contains a specific exception for journalistic material which means that they will not be troubled by the provisions.
Secondly—I raised this with the hon. Member for Somerton and Frome (Mr. Heath)—disclosure notices will usually be issued against minor players; that is what they are for. When officers are trying to unravel a gang, they will be conscious of who is at the outside edges doing small amounts and want to put pressure on them, in the form of an incentive or a compulsion, to talk about what is going on further inside, so that they can gradually peel off the layers, as it were, to get to the Mr. Bigs. We must face the fact that as soon as the disclosure notice is issued that minor player will come under threat from the Mr. Bigs whom their silence protects. That does not happen in relation to the SFO; we are talking about a completely different kind of crime involving extraordinarily large criminal empires buttressed by the regular use of violence, intimidation and threats to sustain them. These people will undoubtedly face intimidation, threats to injure, and even threats to and attempts to kill.
As I said before—I hope that I am not in error—new section 74, which establishes long-overdue national witness protection measures, does not include in its ambit somebody who is the subject of a disclosure notice, because its definition of "witness" relates to someone who is miles further on in the process, giving evidence in proceedings. That will not take away the problem.
We want this to work, and it will do so only if people who are served with notices know that they are safe in responding. I would much rather go to prison for a couple of years, which is the maximum sentence, than face the wrath of a Mr. Big who is determined to silence me one way or another. That is a big burden that the authorities will have to recognise straight away by putting in place provisions to protect people.
Mr. Marshall-Andrews:
Before my hon. and learned Friend moves on, I want to ask her about the sanction for not complying with a disclosure notice. She will have noticed that the defence to such a charge is that they have not acted "wilfully". As she will know, that word causes more difficulty in criminal law than anything else. If she is on the Committee that steers the Bill through, as I am sure that she will be, will she contemplate at least attempting to amend it to the far more useful and reasonable term, "without reasonable excuse"?
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Vera Baird: As ever, my hon. and learned Friend makes a good point, and whoever is on the Committee should consider it. I entirely agree that the word "wilfully" is slightly outdated, very hard to define, and causes more problems than it solves in criminal law.
Formalising the giving of Queen's evidence is obviously a good idea. It should not be carried on in an under-the-counter, ad hoc or arbitrary way; it should be done in a systematic way. However, this will not produce a straightforward benefit to the criminal justice system. It is extremely difficult to get juries to rely on the word of someone who is pleading guilty to get a soft sentence, when the only way in which he can save himself from a 30 or 40-year sentence is to talk about what he has done with his co-accused. Of course, in those circumstances, he would have every interest in piling on to his co-accused offences of which he himself might well be guilty. It would be very clear to the jury that that was going on, and that would make it difficult for him to be believed. It would be impossible to keep it from the jury that it was going on without perverting the course of justice, because it has to be clear to the defence that the individual has a motive for giving that particular evidence, whether it is true or not. It is important that both parties know what is going on.
The Criminal Justice Act 2003 allowed the introduction of previous convictions and all sorts and shades of past villainy to be put against the person giving evidence, just as they can be put against a defendant. However, it would be easy to undermine a jury's ability to give any credence to what such an individual said, given that he could easily be discredited because he is almost certain to have previous convictions and because all the material that will come from the defendants about the way in which he has previously conducted himself will show him to be a terrible villain.
The definition of what is truthful in such circumstances will clearly involve what will get a conviction. The individual will have been told to tell the truth, and the Crown will rely on him to do so, but his way out of his dilemma is to get the people in the dock convicted. That is a difficult situation for the authorities to handle. The individual could be sentenced before he gave his evidence. That would look better, but the authorities would then be hooked by him, because if he reneged on his agreement, he would already have his sentence and it would be hard to unpick it. There could well be grey areas in terms of whether he had told the truth.
On the other hand, if he were sentenced after giving his evidence, it would be as clear as day that he had an incentive to tell the truth—that is, to get the Mr. Bigs off the streets, as the prosecution wanted. Both options look slightly corrupt, and it is easy to mix up the legitimate use of a criminal who has turned his face against crime and decided to go legit with the corrupt use of people who are just trying to save their necks. If, in any trial in which a person is in the dodgy position of giving such evidence, there were in addition any dodgy police evidence that called into question their motives, such a prosecution would be doomed to failure. We can only hope that this procedure will become more familiar to us so that juries will learn better to rely on what is said by supergrasses, or whatever they are to be called. However, I would suggest that, in the short term, these measures are not going to make a huge difference.
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By way of a footnote, I must point out that there is no provision in the Bill for the person entering into an agreement to give Queen's evidence to get legal advice during the negotiations. He will be subject to the terms of a detailed agreement that will be incapable of being revoked. Indeed, as I understand the Bill, his discounted sentence could be revoked if he did not tell the truth. It is hugely important that a person entering into such a contract should do so only if he has had its terms properly explained to him and understood them. I also wish the authorities luck in deciding whether someone has told the truth in a situation involving such an agreement, because that concept could become extraordinarily hazy.
The Bill is pretty clear and focused when it is targeted in those ways, notwithstanding the reservations that I have stated. However, when it is not targeted against serious organised crime, it seems to lack focus and to raise certain concerns. I am particularly worried about the amendment to the power of arrest. Clause 101 will amend the Police and Criminal Evidence Act 1984 by effectively making every offence arrestable, from parking on a yellow line or not having a light on a bicycle to murder, subject to a test of "necessity". That will be very difficult, I think.
Currently, when a policeman summonses someone, he must decide whether he suspects that person of committing a non-arrestable offence, an arrestable offence or a serious arrestable offence. The powers follow from that decision, but it is a fairly clear one to make, as he can see what is going on in front of him and what the offence is or is not.
It is said that that is a confusing position for officers to be in because there is no straightforward universal framework. The intention is that this should be the straightforward universal framework, with powers of arrest extended to every offence. I would have thought that if police officers find difficulty in deciding whether they are looking at a non-arrestable, arrestable or serious arrestable offence—granted, they have been trained to do that—they will find it bewildering to apply the test of necessity to everything that comes their way.
The hon. Member for Somerton and Frome referred to the 2002 review of PACE, which considered the problems of confusions over arrest powers but rejected this solution. I agree that it is right to reject it. The right hon. Member for Haltemprice and Howden (David Davis) referred, almost in passing, to this change representing a move from consent-based policing towards policing by discretion. In my view, it represents exactly that, which is not something that should be mentioned only in passing.
We are considering saying to police officers one of two things: either sort out some complicated principles of the Human Rights Act 1998 on the spot and make the decision accurately or—I think this is what we are saying—officers have all the powers they need and those should be used only when they think it necessary.
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