Examination of Witnesses (Questions 320-339)
ASSISTANT COMMISSIONER
JOHN YATES,
MS CARMEN
DOWD AND
MR DAVID
PERRY QC
23 OCTOBER 2007
Q320 Chairman: Was it the case that
when they brought this final report to you, you thought, "It
is pretty much the case, it is pretty much there, but we just
need a little bit of something else, go off and do a little bit
of something else"? Or was it, "This does not stack
up unless you can do something else" which they then could
not do?
Miss Dowd: It is inappropriate
to actually comment on that.
Q321 Chairman: It is just hypothetical—
Miss Dowd: I cannot answer a hypothetical
question about something when you are asking me whether I did
or not. It is not hypothetical, is it?
Q322 Chairman: You are the lawyer,
you will know the answer to that. Can I ask Mr Perry, you are
the man who eventually explained the law to them, did you not?
You are the basis I think of the statement in the CPS statement
afterwards which says, "What you cannot get convictions for"
and then you say, or the CPS says, "The essence of the offence
lies in that unambiguous agreement", and that takes us back
to a conversation we were having a little while ago. We know this
goes on, we know there is a trade in honours which goes on, it
has been going on year in year out for as long as anybody can
remember, but it goes on in covert ways. We knew all that when
all this started and we said to you, "This is how the world
is, that is what goes on", and unless you had at that point
some evidence that would pass this very high evidential test which
you told us about afterwards we knew you were not going to get
anywhere. So I am asking you, Mr Perry, in the absence all along
it seems of anything that would look like an unambiguous agreement,
how could a prosecution in this area ever be brought?
Mr Perry: Well, I think a prosecution
in this area could be brought in a number of circumstances. First
of all, there is the Maundy Gregory type case where the seller
of an honour or dignity unambiguously makes an offer to someone
who then reports that and is a credible witness to the prosecuting
authorities and a conviction then follows. The mirror image of
the Maundy Gregory case would be the buyer limb being used as
opposed to the seller limb, and the section is actually structured
in such a way that the offences are committed by mirror images
of each other, there is the seller limb and the buyer limb. They
are cases which could be prosecuted where there is direct evidence
but there are many, many criminal cases, not only in this field
but in other fields, where prosecutions are brought not on the
basis of direct evidence but more on the basis that the evidence
is a type of mosaic that develops and builds into a picture that
provides a prosecutor with the ability to say that the irresistible
inference to be drawn from certain primary facts is that the ingredients
of this offence are made out. In the circumstances of this case,
Parliament when it enacted the 1925 Act was very careful to capture
the type of corrupt bargain which should properly fall one side
of the line and attract criminal liability, but it was also careful
to exclude from criminal liability the type of practice which
people would not think is necessarily wrong. As you have mentioned,
people donating to parties who become recognised as supporters
of parties and are properly then given peerages because they do
support the party in question and they have demonstrated their
support in the past is not necessarily wrong. In this case, without
straying into the forbidden territory, the case was presented
more as a mosaic type case or a jigsaw, if you like, and it is
very difficult at the early stages when you are putting together
the jigsaw or the mosaic to know exactly what picture you are
going to get at the very end. That is why I would wish to associate
myself with the comments made by Miss Dowd, that it was wholly
inappropriate in these cases to look at the material in a piecemeal
fashion. When it was looked at eventually, it was looked at independently
and objectively in accordance with the code test and decisions
were taken in accordance with the Code of Crown Prosecutors. So
that would be the way, Mr Chairman, I would answer you and I hope
I have answered your question. It is perhaps inappropriate for
me to make any suggestions for how the law might be changed because
it seems to me that would be a matter for Parliament rather than
for an individual lawyer who may not have the expertise to inform
himself or herself as to where the appropriate line of liability
should be drawn.
Q323 Chairman: We have taken our
own legal advice on some of this from Chris Sallon QC who has
been through the whole raft of law in this area and demonstrated
how very, very difficult, nay impossible, it is in the absence
of definitive unambiguous agreements to secure any kind of charge
or conviction. Now the CPS have said this too retrospectively.
Were you saying that to them along the way or did you just see
this at the end?
Mr Perry: The position was that
we had looked throughout at the difficulties created by the structure
of the legislation, but it was impossible to pre-empt what the
eventual decision might be in the absence of knowing what the
shape of the case would be when the evidence was presented to
the prosecutors. The one constant in the case was the law and
the ingredients of the 1925 Act offence and we were alert to the
difficulty. But of course, and we fully accept, although perhaps
I would not go so far to say, it is almost impossible. What I
would say is the Act is very cleverly drawn to make sure that
only particular conduct falls within its scope. But that is not
to say that in appropriate cases if there was evidence, either
of a direct nature as in the Maundy Gregory case, or of a more
circumstantial nature which is very frequently the case in criminal
prosecutions, that a prosecution would not be possible, but I
say that just in general terms.
Q324 Chairman: You said it was not
for you to say how the law should be different, it was for Parliament,
well, you are talking to Parliament now and one of the things
which interests us is whether there is a need for a change in
the corruption laws so practices which are not caught by present
law could be caught. That is something we would like your advice
on.
Mr Perry: What I meant by what
I said was that I am probably not as informed as a witness to
express opinions on those matters. I am aware, for example, that
the Law Commission is about to publish a paper on the scope of
the offence of corruption particularly now as our corruption laws
are looking rather worn and dated. Just as an example, it was
mooted, or one of the matters which was mooted with me before
today was, whether there should be an attempt to impose a burden
of proof on the defence, just as an example to see whether it
would be easier to prove an offence if you placed a burden of
proof on an accused person. Again what I would say in relation
to that is that any such suggestion would first of all involve
political and moral questions, given the pre-eminence of our law
to the presumption of innocence, and although Parliament would
have primary responsibility for deciding where the appropriate
balance would lie, it would have to do so taking into account
and giving proper weight to human rights considerations and the
overriding need to ensure that any person charged with a criminal
offence has a fair trial. The most important matter, whatever
the public interest might be in the investigation and uncovering
of crime, it might be thought is that people should not be improperly
convicted or stigmatised with criminal wrong-doing merely for
the sake of expediency.
Q325 Chairman: Just while I have
got you, could I try one further thing on you and it turns on
this? We now have a regulator in this area in terms of peerages,
which is the House of Lords Appointments Commission, and it is
argued that the effect of that regulator means it is technically
impossible to buy and sell peerages, all that you can do at most
is to nominate someone to the body who decides, so in a sense
a deal cannot be struck because you cannot enforce it. Does that
matter at all or does the notion of offer in the law still capture
what goes on?
Mr Perry: My response to that
is that the law would still have a part to play even with a regulator
because of the fact the law captures offers and valuable consideration
given as an inducement either way. One of the things perhaps you
received advice upon is that the 1925 Act does not require the
inducement actually to be successful, and it may be that that
is to ensure that standards in public life do not simply depend
on whether you have been successful in getting your dignity or
title but whether the process has been conducted properly and
in accordance with what people would expect to be the standards
in public life.
Assistant Commissioner Yates:
Can I try and help you on that as well? One of the problems we
encountered is that once it gets to HoLAC, the nomination has
taken place, if you like, and then they are only looking at whatever
the application looks like and make a judgment there. One of the
lessons we would draw on that is in terms of the consistency and
transparency of the nomination process to get to that point, because
at the moment with the three major parties you have three entirely
separate processes operating, either by committee, consultation
or by the party leader's choice. So that is the problem from our
perspective, the lack of transparency and consistency in the process
which gets it to HoLAC. I have no criticism of HoLAC at all, they
clearly do their job quite properly but they are actually presented
with what looks like a fait accompli once they have the
nomination. So it is the actual process beforehand which we think
could do with reviewing so there is something consistent and transparent
and can stand some tests.
Q326 Chairman: And what would that
involve?
Assistant Commissioner Yates:
You have that with the ordinary honours system, do you not, with
OBEs and the like, you have a very, very structured, quite laborious
process to get to that point, whereas it all felt a bit ad
hoc in terms of how it got to HoLAC in terms of the working
peers.
Q327 Chairman: The difference is
that in the honours system the politicians have now taken themselves
out of it completely, it is all done by independent bodies. Peerages
are put up by party leaders, that is how the system works, so
these are not comparable systems, are they?
Assistant Commissioner Yates:
What I am saying is that the system of working peerages with party
leaders nominating them, or whatever process they decide, is fraught
with difficulties when you get issues such as this because actually
it is very difficult to find your way through it and see how it
got there in the first place.
Q328 Mr Prentice: But did not the
system work when the House of Lords Appointments Commission rejected
the four nominees? Is that not a case of the system working?
Assistant Commissioner Yates:
It is an example of it working, yes. But would you not prefer
to have a system which was consistent across the board which HoLAC
could review so they could go several steps further back, if you
like, to say it is proper to get to that point?
Q329 Jenny Willott: Even if you have
got to the nomination phase, actually by nominating someone you
have still committed an offence if there has been an offer or
agreement?
Assistant Commissioner Yates:
Yes.
Q330 Jenny Willott: So whether or
not they get the honour is irrelevant, the fact you have nominated
them is what actually counts?
Assistant Commissioner Yates:
Yes.
Q331 Paul Rowen: Mr Perry, what in
your view—and again we are talking about generalities—constitutes
evidence which might be deemed to be inadmissible when you are
looking at these cases?
Mr Perry: Evidence is inadmissible
when there is a legal rule which says it may not be relied upon
by the prosecution.
Q332 Chairman: I do not want to lose
the point you were making, Mr Yates, because you have obviously
reflected on all this and thought where the process is deficient
and where it could be improved, and therefore when you point to
areas for improvement we get immediately interested. Because the
peerage nomination now—unlike the honours system and of
course there is confusion between the two but we are talking about
peerages—comes from the parties and in a sense the parties
can nominate who they like as long as they can get them through
HoLAC, I am not sure what you think a more transparent process
would be?
Assistant Commissioner Yates:
It is how they get to that first nomination point.
Q333 Mr Prentice: Why should that
concern you?
Assistant Commissioner Yates:
It only concerns me if there are allegations of this nature when
you are trying to fish your way back through and say, "How
did they get to that point?" They are good people and they
might have made a contribution to the House of Lords.
Q334 Mr Walker: Assistant Commissioner,
what you are basically saying and I have some sympathy for it
is that there seem to be a number of people getting peerages where
the whole criteria for getting that peerage is the exchange of
cash basically. If you were to look into their background, beyond
giving cash they have done nothing really that warrants a peerage?
They are not great academics, they are not great film producers,
there is nothing in their backgrounds which suggests they qualify
for that peerage than the fact they have given a pile of money—
Assistant Commissioner Yates:
And they may be perfectly good people.
Q335 Mr Walker: We are all very good
people. You are a very good man. I do not know if you will get
an honour out of this but you are a very good man! I would love
a peerage as well but I do not think I am going to get one.
Assistant Commissioner Yates:
It is the transparency of the process which has not helped. Either
people say, "That was absolutely proper they went forward"
or it just leaves a lingering suspicion when you have the ability
to nominate like that. When you get allegations of this nature,
we cannot find a way through which says, "How did it get
there". All I am saying is—it is a suggestion, take
it or leave it—that some transparency and some records and
detail would have been helpful.
Jenny Willott: We could all just copy
the Liberal Democrat system of party members voting on a list.
Chairman: I was hoping to avoid that
but was waiting for it! David, did you want to ask a question?
Q336 David Heyes: It is a different
topic but something we perhaps should have picked up earlier when
you talked about proportionality. In your earlier note to yourself
proportionality was a strong thought in your mind. Was the cost
of the investigation, and likely cost of it, the use of resources
in the broadest sense, a factor which weighs in proportionality?
Assistant Commissioner Yates:
It does occasionally, yes. If, for example, there is a shoplifting
case and the suspect drives a red mini and you have not got a
registration number and there are six million red minis, you are
not going to investigate that because it is completely disproportionate.
Q337 David Heyes: Did you have a
figure in mind at the start of this investigation of what would
be proportionate given the indications you had?
Assistant Commissioner Yates:
It was a very small team of vetted officers working very hard
in order to get through various actions and lines of inquiry which
we uncovered.
Q338 David Heyes: So how much have
you spent on it?
Assistant Commissioner Yates:
It is a matter of record what we spent in terms of the total cost,
it is around £1 million but I would absolutely say that three-quarters
of that is salary costs rather than actual extraneous costs.
Q339 David Heyes: But it is a lost
opportunity to do—
Assistant Commissioner Yates:
Yes. You say a lost opportunity but this is a criminal allegation
of the most serious nature which I think we were duty bound to
undertake.
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