Examination of Witnesses (Question Numbers
220-239)
DAVID GREEN
QC AND PETER
MCNAUGHT
10 FEBRUARY 2009
Q220 Mr Tyrie: The reason I am asking
is that whereas the evidential base for your drug smuggling cases
may be relatively straightforward, your evidential base for income
tax fraud, for example, may be very complicated and very difficult
and expensive to pursue. Am I right?
David Green: Pursue from an investigative
point of view or a prosecution point of view.
Q221 Mr Tyrie: Prosecution perspective.
David Green: We are properly resourced
and we have a number of very complex cases on hand at any one
time.
Q222 Mr Tyrie: That was not a very
informative reply. I will try to come at it from a slightly different
angle. Do you never find yourself engaged in discussions about
a trade-off between whether it is worthwhile prosecuting and what
effect it will have on the revenue?
David Green: Once we receive material
from HMRC with a view to prosecution, we will look at it and we
will apply the code test. The public interest will undoubtedly
come into it because that is part of the code test, but generally
speaking it depends on the quality of the evidence.
Q223 Mr Tyrie: What I am trying from
all different angles now to get at is that before you were created
this discussion, which I am trying to suggest may still be taking
place—though I have not yet been able to elicit whether
it does—used to take place internally within Customs and
Revenue.
David Green: Yes.
Q224 Mr Tyrie: They would ask themselves
whether it was worth the candle because prosecution was very expensive
and they would ask what exemplary effect it would have on the
yield elsewhere.
David Green: That would be a decision
taken on their side before they refer it to us.
Q225 Mr Tyrie: Before they refer
it to you at all?
David Green: Yes.
Q226 Mr Tyrie: You have no involvement
in that whatsoever?
David Green: We may well be involved
in a case early on, if we are asked whether an investigation is
worth taking forward. As prosecutors we could say that they will
need to prove X, Y and Z. Certainly we would be involved in that
way. That is how the system works.
Q227 Chairman: You have given us
two different descriptions of what happens in practice actually.
One is not being involved early on and Revenue and Customs coming
to you with a file and asking you to prosecute and you looking
to see whether you can. The alternative is doing what the CPS
now say they do, which is to be involved early on, the day their
officer walks into the police station with the beginnings of the
investigation, then saying to the officer that what he really
needs to do if you are going to prosecute this successfully is
X rather than Y. In Scotland of course they can say "You
will do X and Y".
David Green: Yes. Both things
happen. Obviously if someone is stopped at the airport with drugs
on them the investigator from HMRC will call one of our prosecutors,
they will be given advice on charging. Equally, there may be a
case which is simply referred to us without any prosecutor involvement.
Certainly in the more complex cases we are involved from a very
early stage, both with HMRC in the way I have described and certainly
with the Serious Organised Crime Agency, looking at what the options
are and which is the best way forward in a particular investigation.
Q228 Mr Tyrie: Let me try to get
to the conclusion of my slightly periphrastic cross-examination.
What I am trying to get at is what net benefit we have by having
you in existence as opposed to having your role done internally,
as we used to.
David Green: If you go back to
what happened and why we were set up, I am sure you will remember
the Butterfield report and the reasons why RCPO was created. The
problem, as analysed by Mr Justice Butterfield then, was that
within Customs and Excise there were investigators and there were
in-house lawyers and essentially the in-house lawyer, for various
reasons, was often being cut out of the picture. The axis in several
cases was between the investigator on the one hand and prosecuting
counsel acting for Customs and Excise on the other. Therefore,
there was not much value added by the prosecutors within Customs
and Excise and problems arose on the difficult issue of disclosure.
Now things have changed. The decision was taken to take us out
from the new Revenue and Customs and really to engender a culture
of case ownership amongst our prosecutors and we have done that.
We operate a 91% conviction rate.
Q229 Mr Heath: When you assess the
public interest is there a pound sign attached? Is the return
to the revenue one of the factors you consider to be in the public
interest?
David Green: It might be one of
the factors.
Q230 Mr Tyrie: It might be?
David Green: It depends; it depends.
One looks at it from the code test. It may not always be in the
public interest. Obviously if it is a very large fraud, a large
amount of public money disappeared, of course we would try our
utmost to perfect the case to bring it to court; of course we
would.
Q231 Mr Heath: That is a different
public interest test to the one CPS applies generally.
David Green: It is one of the
factors that would come under public interest; one of the factors,
there may be many.
Q232 Alun Michael: I want to return
to this question of how you make sure that there is consistency
across the system. You said a few minutes ago that in looking
at consistency there was no difference between your decision making
and perhaps the comparative decision making of the crown prosecutor
in Southend as distinct from Cardiff or Birmingham for instance.
David Green: Yes.
Q233 Alun Michael: But there is a
difference, is there not? In that case they would be part of the
same management structure and there would be systems in place,
one would expect. We are talking here about very clearly separate
prosecuting organisations. Can you tell us what systems of liaison
and discussion there are between the different prosecuting agencies?
I am talking about ensuring that practice and policy are consistent.
David Green: I could give you
an example, say on confiscation of criminal assets. The people
who do that within the CPS and the people who do that within my
organisation liaise regularly on interpretation of case law, interpretation
of statutes, how to go about things, how much to pay receivers,
that kind of thing. So you end up with a pretty standard approach.
Q234 Alun Michael: How does the management
of those cases ensure that is the case? You seem to be referring
there to practitioner cooperation on a specific task within the
overall role. How do you ensure that there is consistency across
what are different organisations with different management structures
and accountability?
David Green: Because we have liaison
at all levels from director level downwards to senior managers
down to practitioners. We have working groups. An example, for
instance, would be the development of guidelines on disclosure.
That was done by a working group which included CPS, RCPO and
SFO. That again was the product of discussion. Then it is enforced
by management and by a system of inspection.
Q235 Alun Michael: Let us take that
example for a moment. Who decides at the end of the day? A working
group has produced some recommendations, it has included people
from the different agencies, is that signed off by the heads of
all the different prosecution agencies? Does the Attorney General
have a role at the end of the day?
David Green: At the end of the
day it would be in relation to disclosure. For instance, joint
guidelines were produced by the DPP, by me and the director of
the Serious Fraud Office. That happens in other areas as well.
Q236 Alun Michael: Yes, but I am
trying to get this clear. Is that a matter where the three of
you in that case agree on the joint guidelines and if the three
of you cannot agree it does not happen? Or does it go up to the
Attorney General to sign off what the three of you have agreed
or, if necessary, to knock heads together?
David Green: I cannot think of
an occasion when anyone has had to knock our heads together; certainly
as superintendent of the prosecutors the Attorney General would
have knowledge of and bless the agreement in the end. One ought
as well to make clear in connection with this consistency point
that by statute RCPO is inspected by the Crown Prosecution Service
Inspectorate. We are held to the same sort of account as the CPS;
we are undergoing an inspection at the moment actually.
Q237 Alun Michael: The suspicion
I would have is that that is all fine as long as things are going
well, but what is the fallback? You have indicated that the inspectorate
may provide part of the integrated oversight.
David Green: Yes.
Q238 Alun Michael: The Attorney is
ultimately responsible I suppose?
David Green: Yes.
Q239 Alun Michael: If you agree something
across the different agencies, is that then something that goes
up to the Attorney for either blessing or for amendment?
David Green: It is the sort of
thing which would be dealt with at the strategic board to which
I referred earlier. The whole point of the strategic board is
that it includes all the Attorney's departments within the law
officers' departments and we meet with a view to ensuring our
strategy is joined up across the law officers' departments. It
is precisely to get this kind of consistency that the strategic
board exists.
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