Examination of Witness (Question Numbers
10 MARCH 2009
Q355 Chairman: Attorney General, welcome.
We are glad to have you before us again. What significance should
I attach to the fact that you have not yet been in a position
to reply formally to our 2008 report on the provisions relating
to the Attorney General's office in the Constitutional Renewal
Baroness Scotland of Asthal: I
think first, Chairman, I should say, of course, that we did invite
the committee to accept as our response the answer to the consultation.
A review of all the arguments that were put before this committee
was undertaken and we did hope that you would agree that the answer
to the consultation, the conclusion of the consultation, was a
comprehensive response to the report of this committee. In fact,
I think we wrote a letter asking you to accept that as our response;
so you will know that the Constitutional Renewal Bill is a bill
which has been under consideration for quite some time.
Q356 Chairman: There is an issue in it
which bears particularly on the inquiry we are currently engaged
in, and it relates to your relationship with the Serious Fraud
Baroness Scotland of Asthal: Yes.
Q357 Chairman: Because the bill distinguishes
that from your relationship with other organisations by giving
you a power to halt investigationsnot prosecutions, but
investigationsby the Serious Fraud Office, and I think
we have had difficulty all along in understanding what the basis
of this is.
Baroness Scotland of Asthal: The
basis upon which the Serious Fraud Office undertake their operations,
as you know, is that they undertake both investigation and prosecution,
and, therefore, if it was decided that it was not in the national
interest to continue with a prosecution, then a fortiori
it may then follow that you would cease that activity, and that
activity may include the investigative arm of it. I think it is
because of the nature of the SFO itself, but I think we made clear
that if that decision was ever taken there would be an account
given to Parliament that that decision had been taken and information
would be provided about it.
Q358 Chairman: But if the matter
on which you thought there was public interest in bringing things
to a halt was being investigated by the police or by Revenue and
Customs, you would not have the power, in fact nobody, other than
the Police or Revenue and Customs would have the power to cease
the investigations, would they?
Baroness Scotland of Asthal: The
difference is, of course, that the prosecutorial authority in
the CPS has no purchase on investigations because the two are
separate. The models are changing slightly, as you will know,
for instance, similar to the case of Rhys Jones where the prosecution
can become involved early on in the investigative process, but
that is not the norm. The police will be solely responsible for
decisions taken in relation to investigation and the prosecutor
cannot direct the police. The reason there is a slightly different
arrangement with the Serious Fraud Office is because they have
that dual function.
Q359 Chairman: What worries me slightly
is that if the Government thought that it was, let us say, embarrassing
for an investigation to continue, in the case of the Serious Fraud
Office, you on their behalf can bring the investigation to an
end. If the investigation was into just a different crime and
it was a crime, therefore, being investigated by the Police or
Revenue and Customs, nobody would be able to say to them, "Stop
investigating this because we are not going to prosecute anyway."
Baroness Scotland of Asthal: No,
I think we need to be very clear. Embarrassment will never, and
can never, be a bona fide basis upon which any prosecution
could be stopped. The issue is whether that prosecution is or
is not in the national interest, and you will know, Chairman,
that quite often that involves national security. That is a very
high end issue. An embarrassment plays no part whatsoever in the
prosecutor's assessment. The prosecutor has to make two decisions:
are the elements of the offence in any given case made out? That
is the first step. The second step: is it in the public interest
to prosecute? And there will be a whole set of reasons why it
may or may not be in the public interest to prosecute a particular
case, but one of those issues will be national security and only
in respect of that issue has there been any reservation.
Chairman: Before we leave this issue,
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