The Crown Prosecution Service: Gatekeeper of the Criminal Justice System - Justice Committee Contents

Examination of Witness (Question Numbers 355-359)


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 Bill?

  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.[1]

  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 Office.

  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 investigations—not prosecutions, but investigations—by 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, Mr Tyrie.

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