Examination of Witnesses (Questions 40-59)
SIR MICHAEL
JAY KCMG, MR
DAVID WARREN
AND SIR
MICHAEL WOOD
KCMG
25 JANUARY 2005
Q40 Chairman: ***
Sir Michael Wood: Yes, but the
question is whether the English courts have jurisdiction over
such an offence committed overseas, which is a very complex issue
which I am happy to go into.
Q41 Mr Mackay: Sir Michael, I have a
large number of questions. You have mentioned duty of care. I
presume you would agree that we have a considerable duty of care
to innocent civilians anywhere where we have a post?
Sir Michael Jay: Yes.
Q42 Mr Mackay: The duty of care is not
just to those we employ?
Sir Michael Jay: I think the duty
of care we have to our own staff is of a different order from
that, but I agree there is clearly a duty of care to others.
Q43 Mr Mackay: ***
Sir Michael Jay: Yes.
Q44 Mr Mackay: In all these circumstances,
do you not find it unfortunate, to put it at its gentlest, that
you as the Permanent Secretary were informed so late in the day?
I readily acknowledge minor offences and misdemeanours must be
dealt with at a level much lower down the Foreign Office, ***
that you, and I would presume in turn the Foreign Secretary, would
have been informed at a much earlier time. Do you not agree with
me it is unfortunate and strange it did not happen?
Sir Michael Jay: Again, if a similar
case were to happen now, I would expect to be told.
Q45 Mr Mackay: I am pleased to hear that.
The chronology, as Mr Mackinlay has said, is vitally important.
***
Sir Michael Jay: I will ask Mr
Warren to answer that second question. The first question was?
Q46 Mr Mackay: ***
Mr Warren: ***
Q47 Mr Mackay: *** I accept you have
not confirmed it but you have not refuted it either. ***
Mr Warren: Without discussing
with *** the precise terms of the meeting, I am not in a position
to confirm the precise terms.
Mr Mackay: I think, Chairman, it is very
important we do learn in due course about this. I think we do
need to have a written answer on that to the Clerk.
Q48 Chairman: ***
Sir Michael Jay: At this stage,
I take note of the question, Chairman. We will do our best to
answer that.
Q49 Mr Mackay: The other question was—
Sir Michael Jay: I have remembered
the other question.
Q50 Mr Mackay: ***
Sir Michael Jay: As I said in
my opening remarks, almost opening remarks, I think that we have
moved quite a bit in the last few years in this area. I have been
concerned myself, not only in this case as I said earlier on,
that patterns of behaviour which have become established over
time have, for whatever reason—*** sometimes perhaps for
other reasons—not been made known to those who need or who
would benefit from having that knowledge. We have changed our
procedures in the last few years, to the extent, as Mr Warren
was explaining just now, there is now much closer co-ordination
between the various parts of the Human Resources Directorate in
London, so ***, people who have knowledge of people's files, and
those who are responsible for posting, work more closely together
than they did, and some of the barriers which I suspect in the
past have existed have broken down. I think this is an improvement
and I hope will ensure that some postings which have happened
would not happen, ***
Q51 Mr Mackay: ***
Sir Michael Jay: *** As I said
earlier, I think that there are a number of elements of this which
I would have wished had been handled differently. As I said, with
hindsight, given the history, in a case like this it would be
better not to have made the posting. I think there were questions
whether it was right to try to handle the issue by the line management
in post, or whether it might have been better to have recalled
the officer earlier. I think there are questions as to the balance
of responsibility in handling the case between the Human Resources
Directorate in London and the Ambassador on the spot. I think
there are a number of issues which arise which I would hope in
any such case in the future would lead to either the posting not
taking place or the posting having been terminated earlier than
it was.
Q52 Mr Mackay: You have just said there
are a number of elements, and clearly there are. If there was
just one element, or two, it could be coincidence that mistakes
were made, but when it happens again and again and again you can
understand why many of us would think there was a cover-up.
Sir Michael Jay: But covering
up what?
Q53 Mr Mackay: Covering up that nothing
has been done to deal with this *** which would cause embarrassment
to the Foreign Office. *** This is what we find appalling. At
every single point there appears to have been a cover-up, a lack
of information and lack of action—at every single point
along the way—over what is apparently a number of years.
Sir Michael Jay: I really do not
think there is any cover-up here, nor do I think the issue of
"Is this going to be embarrassing to the Foreign Office"
was an issue which arose. What did arise, as I have tried to explain,
is a series of handling issues which were not as well-handled
as they should have been. I would hope, because of the way procedures
have been changed, it would be handled differently now.
Q54 Mr Mackay: One last question for
the time being. The Criminal Justice Act 1948, section 31(1),
refers to jurisdiction and procedures in respect of certain indictable
offences committed in foreign countries. I would hope that we
can agree with Sir Michael that grievous bodily harm must be indictable.
I can see Sir Michael Wood nodding. *** It says under (1) "Any
British subject employed under His Majesty's Government in the
United Kingdom in the service of the Crown who commits, in a foreign
country, when acting or purporting to act in the course of his
employment, any offence which, if committed in England, would
be punishable on indictment, shall be guilty of an offence . .
. and subject to the same punishment, as if the offence had been
committed in England." *** At the end of the day, it should
not be you or I who make the decision but the British courts.
***
Sir Michael Jay: I will ask Sir
Michael to answer that one because it depends on the interpretation
of the law and jurisprudence under that particular Act.
Sir Michael Wood: There are two
issues. First, do the English courts have jurisdiction. Then the
second issue would be a very practical one, is it possible to
get the evidence for a prosecution. I will dwell just on the first,
but the second is very important when one is thinking of extraterritorial
offences—they are very rarely prosecuted because of the
practical difficulties of getting evidence. The key point I think
about section 31 of the 1948 Act is that it only applies to indictable
offences committed in the course of employment. The mischief I
take it Parliament had in mind was officials who received bribes
as part of their employment overseas, issued false passports,
this kind of thing, and it was that that was being aimed at. Insofar
as British officials overseas were acting in a private capacity,
they are treated no differently from any other British citizen
who happens to be overseas. I have not been involved, or looked
in detail at the allegations in this particular case, but it does
seem to me that for the most part they were clearly acts outside
the course of the employment of that secretary. ***
Q55 Andrew Mackinlay: ***
Mr Warren: ***
Q56 Andrew Mackinlay: ***
Mr Warren: Yes, alleged.
Andrew Mackinlay: Which has not been
investigated.
Chairman: Do you want to continue, Andrew?
Mr Mackay: No thank you.
Q57 Mr Olner: I must have applied for
many internal jobs when I had a proper job at Rolls Royce, and
I have to say at every one of those interviews those who interviewed
me knew what my medical condition was. I have to say, if I was
barking mad they probably would not have given me a job. People
have said about a cover-up, it is either a cover-up or it is complete
and utter incompetence, Sir Michael. It just beggars belief. ***
Sir Michael Wood says that you still have not looked at the offences
as to whether a prosecution could or could not take place. I am
no legal man but I rather take it, Sir Michael, *** Why have you
not acted on it?
Sir Michael Jay: ***
Andrew Mackinlay: They did you a favour,
did they not?
Q58 Mr Illsley: ***
Mr Warren: ***
Q59 Mr Illsley: ***
Mr Warren: ***
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