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The Paymaster General (Dawn Primarolo): I was struggling to catch up with the hon. Gentleman's point. Clause 38 is about the expenditure for Her Majesty's Revenue and Customs, but the hon. Gentleman was making points about prosecution and defence costs.
Mr. Ruffley: I did take counsel from the Clerk to the Committee last week about where it would be appropriate to make these remarks. He indicated that clause 38 was as good a place as any. I have done my homework.
Dawn Primarolo: The hon. Gentleman does not need to be so defensive. I was explaining my rush to catch up with him, as opposed to questioning whether he had raised the issue in the correct place. I am sure that you would have informed him if he had not, Sir John. As I understand it, the hon. Gentleman is raising questions with regard to the prosecution and defence clauses in the 1985 Act. That is dealt with in the Bill under clause 30 and schedule 3, which relate to Revenue and Customs Prosecutions Office costs. As a general principle, the 1985 Act applies across the board to all prosecutors, including the Crown Prosecution Service and the Serious Fraud Office.
The hon. Gentleman quite rightly asked me for details on the operation of, and accounting for, those measures under section 16 of the 1985 Act. He asked how it applies, how it would be accountable and why it is not included in the Bill. I ask for his indulgence as I say two things. The requirement to account for moneys does not need to be in the Bill in that it is accounted for within Government accounting. However, to be perfectly frank, he asked me some questions to which I do not have detailed responses at the moment. May I undertake to write to him speedily, giving him the answers about how section 16 applies and how it is accounted for? I undertake to write to him as quickly as possible so that if he is not satisfied, he will have enough time to return to the matter. I hope that on this rare occasion he will forgive me. He has caught me off guard on this issue. With his agreement, I will write to him. I will of course send the letter to all members of the Committee and to his hon. Friends in case they want to return to the issue.
Mr. Ruffley: I am grateful for the Minister's graciousness in saying that she will write to the Committee after this sitting. She referred to section 16. I just want to emphasise that it is not so much that the prosecution costs would be costs awarded in favour of Her Majesty's Government in the broadest sense; in that sense, it is not a cost implication or resource implication that I am too bothered about. What I am concerned about is the award of costs to a defendant who is acquitted, or an accused who is convicted and for whatever reason has costs awarded against them, or an accused who is convicted, appeals and incurs further costs for the Government as a result of that appeal, which is then dismissed.
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9.45 am
The concern is not about prosecution costs, but about the costs of the defence and the accused, as set out in sections 17 and 18 of the 1985 Act. Those costs fall on the Exchequer and taxpayers, and while provision for them to be assessed may be lurking in the legal costs regime and other parts of the statute book—the test in the 1985 Act is that they must be just and reasonable—it would be useful for the Committee to understand how the new body will deal with prosecution costs when they are awarded against an accused. A costs order draws on the public purse and it would useful to understand the mechanics of that. I do not know whether there is a reference to the 1985 Act and clarification would be useful.
Dawn Primarolo: I want to be clear about what the hon. Gentleman is asking me. I believe that he wants to focus on issues such as when the Department's prosecution fails, giving rise to defence costs, and the Department appeals, giving rise to further defence costs. I believe that that is his particular point, although he is also interested in the general point and the criteria by which a decision is taken to pursue or not to pursue a case. That is what I am trying to respond to.
Mr. Ruffley: The right hon. Lady elegantly clarifies my point. To take it one step further, there will be instances of an accused being convicted and wishing to appeal. The appeal may be won or lost, but in both cases there will be additional resource implications of going to appeal. It would be useful to understand the position. Whatever the outcome, there will be not just a compensation award to the accused for grievance and stress, but the additional costs of taking the first-instance decision, which the prosecuting authority did not like, to appeal. There would be two hits; the cost of the appeal to the prosecuting authority and the compensation award in favour of the accused. That would also be the case if a defendant were convicted on first instance but won an appeal with a defence costs order. In the case of an accused who subsequently won an appeal, the resource implications would arise not only from the award of a lump sum to the accused, but from the costs of that appeal. If an accused were convicted and subsequently lost an appeal, there would be no resource implications for the prosecuting authority because there would be no order on costs. However, there might be a cost implication from the appeal that the prosecuting authority would incur over and above the costs of the trial of first instance.
I hope that the right hon. Lady and I have teased out what we need to understand about the cost implications. It is not just the award of costs as a lump sum, which may or may not apply in the cases that I outlined, but the additional costs of going to appeal. The 1985 Act goes into considerable detail much more elegantly than my precis this morning, but that appears to be the model that has worked in the past for all other prosecutions and instances where there are defence cost orders, or orders awarded against the accused where they lose either at first instance or at appeal. Not to have it on the face of the Bill puzzled me
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somewhat, though I know the right hon. Lady is assiduous in explaining to Committee after Committee why some things are not quite as we think. There is a lacuna in this legislation and I am happy for her to write in some detail, if she would be good enough to put my mind at rest.
Question put and agreed to.
Clauses 38 ordered to stand part of the Bill.
Clauses 39 and 40 ordered to stand part of the Bill.
Clause 41
Accounts
Amendments made: No. 13, in clause 41, page 19, line 20, leave out 'sums' and insert 'revenue'.
No. 14, in clause 41, page 19, line 21, leave out 'sums' and insert 'revenue'.
No. 15, in clause 41, page 19, line 23, leave out 'property accepted' and insert
'liabilities satisfied by the acceptance of property'.—[Dawn Primarolo.]
Clause 41, as amended, ordered to stand part of the Bill.
Clauses 42 to 44 ordered to stand part of the Bill.
Clause 45
Consequential Amendments, &c.
Amendments made: No. 16, in clause 45, page 21, line 35, leave out 'or other instrument' and insert
', instrument or other document'.
No. 17, in clause 45, page 21, line 40, leave out 'or other instrument' and insert
', instrument or other document'.
No. 18, in clause 45, page 21, line 44, leave out 'or other instrument' and insert
', instrument or other document'
No. 19, in clause 45, page 22, line 21, after 'instruments', insert 'and documents'.
Clause 45, as amended, ordered to stand part of the Bill.
Schedule 4
Consequential Amendments
Amendments made: No. 61, in schedule 4, page 31, line 29, at end insert
'Game Laws Amendment (Scotland) Act 1877 (c.28)
3A In section 11 of the Game Laws Amendment (Scotland) Act 1877 (no person to be prosecuted again for same offence) for ''the Inland Revenue'' substitute ''a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30.''.'.—
[Dawn Primarolo.]
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No. 30, in schedule 4, page 32, line 22, leave out 'The Commissioners for'.
No. 31, in schedule 4, page 32, line 35, at end insert
'13A In Part I of Schedule 1 (declarations: general and special commissioners, &c.) for ``an offence relating to inland revenue,'' substitute ''an offence relating to a former Inland Revenue matter (being a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30),''.'.
No. 32, in schedule 4, page 33, line 17, at end insert
'Health and Safety at Work etc. Act 1974 (c. 37)
(1) Section 27A of the Health and Safety at Work etc. Act 1974 (disclosure by Commissioners of Customs and Excise) shall be amended as follows.
(a) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs'',
(b) after ''obtained'' insert ''or held'', and
(c) for ''by the Commissioners'' substitute ''by Her Majesty's Revenue and Customs''.'.
(3) In subsection (3) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''.
(4) The heading to that section becomes ''Information communicated by Commissioners for Revenue and Customs''.
No. 33, in schedule 4, page 33, line 17, at end insert
'Health and Safety at Work (Northern Ireland) Order 1978 (S.I. 1978/1039 (N.I. 9))
(1) Article 29A of the Health and Safety at Work (Northern Ireland) Order 1978 (disclosure by Commissioners of Customs and Excise) shall be amended as follows.
(a) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs'',
(b) after ''obtained'' insert ''or held'', and
(c) for ''by the Commissioners'' substitute ''by Her Majesty's Revenue and Customs''.
(3) In paragraph (3) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''.
(4) The heading to that Article becomes ''Information communicated by Commissioners for Revenue and Customs''.'.
No. 64, in schedule 4, page 34, line 4, leave out paragraphs (b) and (c) and insert
(i) after ''instituted'' in both places insert ''by order of the Commissioners'', and
(ii) after ''an officer'' insert ''of Revenue and Customs'','.
No. 34, in schedule 4, page 34, line 10, at end insert
'In section 171 (offences and penalties) after subsection (4) (offence by body corporate) insert—
''(4A) Subsection (4) shall not apply to an offence which relates to a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 (former Inland Revenue matters).''.'.
No. 65, in schedule 4, page 34, line 10, at end insert
'19A In section 146A(7) (time limits), for the words from ''means'' to the end of the subsection substitute—
''(a) in England and Wales, means the Director of Revenue and Customs Prosecutions,
(b) in Scotland, means the Commissioners or the Procurator Fiscal, and
(c) in Northern Ireland, means the Commissioners.''
19B In section 150(1) (joint and several liability) for ''the Commissioners'' substitute ''the Director of Revenue and Customs Prosecutions (in relation to proceedings instituted in England and Wales) or the Commissioners (in relation to proceedings instituted in Scotland or Northern Ireland).''.'.
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No. 97, in schedule 4, page 34, line 10, at end insert—
'In section 152(a) (power to compound offences, &c.) for ``compound any proceedings for an offence'' substitute ''compound an offence (whether or not proceedings have been instituted in respect of it) and compound proceedings''.'.
No. 100, in schedule 4, page 34, line 10, at end insert
'19C For section 155(1), substitute—
''An officer of Revenue and Customs or other person authorised by the Commissioners may conduct criminal proceedings relating to an assigned matter before a court of summary jurisdiction in Scotland or Northern Ireland.''.'.
No. 66, in schedule 4, page 34, line 15, at end insert
'20A Sections 37 to 37B of the Police and Criminal Evidence Act 1984 (c. 60) (guidance, &c.) shall have effect, in relation to a person arrested following a criminal investigation by the Revenue and Customs, as if references to the Director of Public Prosecutions were references to the Director of Revenue and Customs Prosecutions.'.
No. 35, in schedule 4, page 34, line 17, at end insert
'Criminal Justice Act 1987 (c. 38)
(1) In section 3(1) and (2) of the Criminal Justice Act 1987
(c. 38) (disclosure)—
(a) for ''subject to an obligation of secrecy under the Taxes Management Act 1970'' substitute ''to which section 17 of the Commissioners for Revenue and Customs Act 2005 would apply but for section 17(2)'',
(b) for ''the Commissioners of Inland Revenue or an officer of those Commissioners'', in each place, substitute ''Her Majesty's Revenue and Customs'',
(c) for ''an offence relating to inland revenue'', in each place, substitute ''an offence relating to a former Inland Revenue matter'', and
(d) for ''any member of the Crown Prosecution Service'' substitute ''the Revenue and Customs Prosecutions Office''.
(2) At the end of section 3 of that Act add—
''(8) In subsections (1) and (2) ''former Inland Revenue matter'' means a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30.''.'.
No. 36, in schedule 4, page 34, line 17, at end insert
'Consumer Protection Act 1987 (c. 43)
(1) Section 37 of the Consumer Protection Act 1987 (disclosure by Commissioners of Customs and Excise) shall be amended as follows.
(a) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs'',
(b) after ''obtained'' insert ''or held'', and
(c) for ''by the Commissioners'' substitute ''by Her Majesty's Revenue and Customs''.
(3) In subsection (3) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''.
(4) The heading to that section becomes ''Power of Commissioners for Revenue and Customs to disclose information''.'.
No. 62, in schedule 4, page 34, line 17, at end insert
'Debtors (Scotland) Act 1987 (c. 18)
21A The Debtors (Scotland) Act 1987 shall be amended as follows.
21B In section 1(5)(d) (cases where time to pay directions not competent) for ''the Inland Revenue'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''.
21C In section 5(4)(d) (cases where time to pay orders not competent) for ''the Inland Revenue'' substitute ''the Commissioners for Her Majesty's Revenue and Customs''.'.
No. 87, in schedule 4, page 34, line 36, at end insert
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'Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (NI 12))
24A Article 85(3) of the Police and Criminal Evidence (Northern Ireland) Order 1989 shall cease to have effect.'.
No. 37, in schedule 4, page 35, line 39, at end insert
''(1) In section 91 of that Act (disclosure by Commissioners of Customs and Excise)—
(a) for ''the Commissioners of Customs and Excise'' substitute ''the Commissioners for her Majesty's Revenue and Customs'',
(b) after ''obtained'' insert ''or is held'', and
(c) for ''their functions'' substitute ''functions of Her Majesty's Revenue and Customs''.
(2) The heading to that section becomes ''Power of Commissioners for Revenue and Customs to disclose information''.'.
No. 67, in schedule 4, page 36, line 8, leave out paragraph (b) and insert
(i) for ''so instituted'' substitute ''instituted by order of the Commissioners'', and
(ii) after ''an officer'' insert ''of Revenue and Customs'',
(ba) subsection (3) shall cease to have effect,'.
No. 38, in schedule 4, page 36, line 22, leave out 'the Commissioners for'.
No. 39, in schedule 4, page 36, line 23, at end insert
'for Her Majesty's Revenue and Customs,'.
No. 88, in schedule 4, page 36, line 25, at end insert
'Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39)
38A (1) Section 30 of the Criminal Law (Consolidation) (Scotland) Act 1995 (disclosure of information) shall be amended as follows.
(a) for ''subject to an obligation of secrecy under the Taxes Management Act 1970'' substitute ''to which section 17 of the Commissioners for Revenue and Customs Act 2005 would apply but for section 17(2)'',
(b) for ''the Commissioners of Inland Revenue or an officer of those Commissioners'' substitute ''Her Majesty's Revenue and Customs'', and
(c) for ''relating to inland Revenue'' substitute ''relating to a former Inland Revenue matter''.
(3) In subsection (2), for ''other than an enactment contained in the Taxes Management Act 1970'' substitute ''and is not information to which section 17 of the Commissioners for Revenue and Customs Act 2005 would apply but for section 17(2)''.
''(7) In subsection (1) above ''former Inland Revenue matter'' means a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30.''.'.
No. 68, in schedule 4, page 36, line 36, leave out paragraph (b) and insert
(i) after ''instituted'' insert ''by order of the Commissioners'', and
(ii) after ''an officer'' insert ''of Revenue and Customs'',
(ba) in subsection (4) omit ''of Customs and Excise'','.
No. 69, in schedule 4, page 37, line 11, leave out paragraph (b) and insert
(i) after ''instituted'' insert ''by order of the Commissioners'', and
(ii) after ''an officer'' insert ''of Revenue and Customs'',
(ba) subsection (3) shall cease to have effect,
(bb) in subsection (4) omit ''of Customs and Excise''.'
No. 40, in schedule 4, page 38, line 1, leave out '4)' and insert '(5)'.
No. 41, in schedule 4, page 38, line 15, at end insert
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'Terrorism Act 2000 (c.11)
In section 121 of the Terrorism Act 2000 (interpretation) for the definition of ''customs officer'' substitute—
''''customs officer'' means an officer of Revenue and Customs,''.'.
No. 70, in schedule 4, page 38, line 20, at end insert
'Anti-terrorism, Crime and Security Act 2001 (c. 24)
55A In section 53 of the Anti-terrorism, Crime and Security Act (Customs and Excise prosecution for a nuclear weapons offence)—
(i) for ''by order of the Commissioners of Customs and Excise'' substitute ''by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs'', and
(ii) for ''if it appears to them'' substitute ''if it appears to the Director or to the Commissioners'',
(i) after ''instituted'' insert ''by order of the Commissioners'', and
(ii) after ''an officer'' insert ''of Revenue and Customs'',
(c) in subsection (4) leave out ''of Customs and Excise'',
(d) omit subsection (6), and
(e) for the heading substitute ''Revenue and Customs prosecutions''.'.
No. 42, in schedule 4, page 38, line 29, at end insert
'Employment Act 2002 (c. 22)
Section 5 of the Employment Act 2002 (functions of Inland Revenue) shall cease to have effect.'.
No. 43, in schedule 4, page 39, line 21, at end insert
'In Schedule 8 to that Act (declarations) for ''an offence relating to inland revenue,'', in each place, substitute ''an offence relating to a former Inland Revenue matter (being a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30),''.'.
No. 71, in schedule 4, page 39, line 21, at end insert
'63A In section 451 of that Act (Customs and Excise prosecutions)—
(a) in subsection (1), for ''by order of the Commissioners of Customs and Excise'' substitute ''by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs'',
(b) for subsection (2) substitute—
''(2) Where proceedings under subsection (1) are instituted by the Commissioners, the proceedings must be brought in the name of an officer of Revenue and Customs.'',
(c) subsection (3) shall cease to have effect,
(d) in subsection (5) for ''customs officer'', in each place, substitute ''officer of Revenue and Customs'', and
(e) for the heading substitute ''Revenue and Customs prosecutions''.
Dealing in Cultural Objects (Offences) Act 2003 (c. 27)
'63B In section 4 of the Dealing in Cultural Objects (Offences) Act 2003 (Customs and Excise prosecutions)—
(i) for ''by order of the Commissioners of Customs and Excise'' substitute ''by the Director of Revenue and Customs Prosecutions or by order of the Commissioners for Her Majesty's Revenue and Customs'', and
(ii) for ''if it appears to them'' substitute ''if it appears to the Director or to the Commissioners'',
(i) after ''instituted'' insert ''by order of the Commissioners'', and
(ii) after ''an officer'' insert ''of Revenue and Customs'',
(c) in subsection (4) omit ''of Customs and Excise'',
(d) omit subsection (6), and
(e) for the heading substitute ''Revenue and Customs prosecutions''.'.
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No. 98, in schedule 4, page 40, line 6, leave out paragraph 69.—[Dawn Primarolo]
Schedule 4, as amended, agreed to.
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