Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witnesses (Questions 80-99)


14 MARCH 2003

  Q80  Lord Waddington: Is there not a third alternative which we should explore? You said that there could be dangers about importing the concept of dishonesty, but we are still left with a situation where this Bill stigmatises as criminal conduct which you, I think, are conceding is not morally wrong and should not be criminal. Another way of getting round that problem is to follow the theme of a general prohibition but then have specific exceptions. Surely you could eliminate a lot of the nonsenses by a few well spelt out exceptions, like, for instance, normal and reasonable and moderate corporate hospitality; like, for instance, dealing with facilitation payments which are made only in order to gain your legal rights, and without any wish to corrupt the person to whom you are giving the money. Is that a way forward, that we could spell out a few exceptions?

  Mr Wardle: It is certainly a possible way forward. Our experience is that if you do put in such specific defences, then they will be pushed to the limit, and far beyond the limit, and you end up having an argument not really about what the problem is all about, which is paying people bribes, corrupt payments, in order to get some advantage, but you have an argument about what is right at the margin, when really I think it should be for the jurors to say, "We stigmatise this conduct because we think it is morally unacceptable that people give and take bribes or act dishonestly."

  The Committee suspended for a division

Q81  Chairman: I would like to ask about the parliamentary position and also about the role of the Attorney General. Some people feel very strongly that the need for the Attorney General to give his consent to prosecutions is a very necessary safeguard. Would it be desirable to make the consent come from the Director of Public Prosecutions rather than the Attorney?

  Sir David Calvert-Smith: Our submission in the past, certainly our submission to the Law Commission, was that it would be better that the public prosecutor be the filter for malicious private prosecutions than the Attorney General, who is, in the public eyes at least, a politician.

  Q82  Lord Waddington: But we are told that one of the disadvantages of that is that the DPP's responsibilities can be delegated to the most humble prosecuting officer, so in fact, it would not be a safeguard at all.

  Sir David Calvert-Smith: I hope it would, in that all the other DPP's consents to a prosecution, which are probably into three figures, are theoretically exercisable by any crown prosecutor. That is because the code of crown prosecutors applies to me as to the humblest prosecutor. There are certain offences the level of which we within the service have fixed higher than every crown prosecutor, because of the particular sensitivities of the case, probably because there are not many of them every year and so on, so it is possible for a smaller group of prosecutors to deal with the business, so to speak, but I do not accept that for any crown prosecutor to give the DPP's consent is no sort of filter for the kind of malicious prosecution which one can imagine people taking out around about election time or whatever it is, just to queer the pitch of their opponent in some campaign.

  Q83  Chairman: Could you deal with that kind of prosecution by the Attorney rather than requiring consent in advance? Would that be practical or not?

  Sir David Calvert-Smith: You could. I believe that the stigma of it being announced that somebody has been charged with something is such that, if there is absolutely no basis and it is in fact a malicious or vexatious prosecution, it should not be allowed to happen at all, rather than it being put right later. Therefore I strongly support a leave or consent provision, and I would not object to the Attorney having it. It is simply that it occurred to us at the CPS that, particularly if we are going to move on to the question of the parliamentary privilege issue and possible prosecution of politicians, the Attorney's leave might be perceived by the public as a bit odd depending on which party it was the defendant belonged to.

  Q84  Chairman: But in your view, it would be practicable as well as desirable that it should be the Director who should give the consent rather than the Attorney?

  Sir David Calvert-Smith: On balance, yes.

  Q85  Chairman: You could perhaps avoid the difficulty which Lord Waddington rightly raised about specifically providing that the decision had to be taken either by the Director per se or by a named deputy or alternate.

  Sir David Calvert-Smith: Exactly.

  Q86  Baroness Whitaker: If the mandate of the Serious Fraud Office were widened, would there be any objection to consent being required from the Director of the Serious Fraud Office?

  Mr Wardle: No, I do not see any difficulty there. We have a relatively small number of cases, and I know each one to a greater or lesser extent. As far as our cases are concerned, very often the consent of the Attorney has to be obtained but one wonders why. It is not that sort of case where there is a risk of malicious private prosecutions, particularly in the private and semi-private area. It is not something that troubles me either way. I would be quite happy for the Attorney to continue giving his consent if he wants to do so, and the House felt that was proper. Equally, I would be quite happy for a scheme to be put in place whereby it was made by myself personally in Serious Fraud Office cases or a nominated deputy. An alternative might be to follow the example in the Enterprise Act, where prosecutions may only be brought, for example, by either the Director or by myself or by a Secretary of State.

  Q87  Baroness Whitaker: That is a very interesting example, because if your mandate were broadened, it is your organisation which would have the expertise, including going overseas, which we heard the other day from the police causes problems. So you would be in a position to use your discretion as to when to prosecute, with perhaps more background, better information, than the more generalised services.

  Mr Wardle: Yes, and the advantage of course is in that we direct and carry out the investigations ourselves. We would be able to say, "No, we will stop this now because the evidence is not coming along and we will never be able to give consent" perhaps at an earlier stage than the police were able to do, and thereby save the expenditure of resources, money and the like.

  Q88  Baroness Whitaker: Might you be in a position to judge the public interest in a prosecution?

  Mr Wardle: I think so, yes. I think we have to do that, obviously, when we decide to prosecute, and increasingly we have to do that when we decide whether to take a case on, because if it is not going to be in the public interest to prosecute, for whatever reason, then we do not want to spend many tens or hundreds, or even millions of pounds, investigating something to no end.

  Chairman: Let us turn to the question of Parliament. There are obviously some very serious issues which need to be raised in relation to possible investigations and prosecutions of Members of Parliament.

  Q89  Lord Campbell-Savours: Can I ask you, Sir David, what do you actually think of the process of consultation with the Parliamentary Commissioner for Standards?

  Sir David Calvert-Smith: About?

  Q90  Lord Campbell-Savours: In the case of prosecution of Members of Parliament.

  Sir David Calvert-Smith: So that at the stage that we are about to make a decision, we would be required to consult the Parliamentary Commissioner?

  Q91  Chairman: Required by what?

  Sir David Calvert-Smith: I am asking.

  Q92  Lord Campbell-Savours: I am asking what you think of the proposition of a process of consultation.

  Sir David Calvert-Smith: I would have imagined that, were Clause 12 to be enacted, a protocol would have to be drafted in which such a consultation would be mandatory.

  Q93  Chairman: That would have to be in the Bill specifically if it were made mandatory?

  Sir David Calvert-Smith: There are a number of fields in which we have protocols with various bodies which we regard as mandatory and which are public, and which therefore if we do not comply with we will be in trouble in court, and there are a number of others where the statute has required—for instance, the Code for Crown Prosecutors—for us to produce some document or other against which we agree to be measured. Whether it was in the statute or whether it was by voluntary negotiation between the Commissioner and ourselves, I am quite sure, one way or another, there would have to be a chain of communication.

  Q94  Lord Campbell-Savours: You would be perfectly happy with that?

  Sir David Calvert-Smith: Yes.

  Q95  Chairman: Do you think it could be done without it being put in the Bill?

  Sir David Calvert-Smith: If it were not done in the Bill, we would do it, so I suppose the answer is yes.

  Q96  Lord Campbell-Savours: We were told by the police last week—they were talking about how they would investigate an allegation of corruption against a Member of Parliament—that it would include proactive operations, which we conclude to be covert and intrusive surveillance, perhaps use of technical equipment, interviews under caution, but with a focus on evidence which could actually be used in court. Do you think that is reasonable in relation to elected Members of Parliament?

  Sir David Calvert-Smith: I think it is reasonable. I suppose that depends on the scale of the allegation that you are considering. If it really is, to go abroad for a moment, a Lockheed situation, as in Japan, I would think the public would want every possible means available to an investigator to detect it and to bring it to justice. So I would not want to rule out any means of investigation simply because it was an investigation of an MP.

  Q97  Lord Campbell-Savours: You would have no objection to that happening without you knowing that that was going on? It is the police that would be carrying it out.

  Sir David Calvert-Smith: Yes. This is of course where Robert's function and mine differ. Robert rightly points out in his favour that he would have control over that sort of investigation if it were an SFO case, whereas currently, albeit we are now entering into protocols, to go back to your previous question, with the police about pre-charge advice and circumstances in which the police undertake to come to us for advice before they do various things, the constitutional position is that the police can now do what they wish.

  Q98  Lord Campbell-Savours: So Robert would have no trouble doing that at all.

  Mr Wardle: Let me put it this way. If I investigate, before I can investigate, I have to have reasonable grounds for believing that an offence involving serious or complex fraud has been committed, and if those grounds suggested that it had been committed by an elected Member, I would have no difficulty, using all the legitimate, legal, investigative tools at my disposal, including using the powers of interview under s.2 of the Criminal Justice Act 1987, which require people to answer questions on pain of prosecution; I would have no difficulty about using intrusive surveillance if that were appropriate under the Regulation of Investigatory Powers Act, or any other legal method of obtaining evidence.

  Q99  Lord Campbell-Savours: I am sorry to press this, but I am sure many people in the House of Commons will be interested in your comments. You do not feel that that could in any way be abused by perhaps an individual officer who might veer further than perhaps the precise remit in that particular inquiry? We are dealing with people elected to Parliament.

  Mr Wardle: There is always that risk. Certainly as far as our cases are concerned, they are controlled by lawyers at very senior level who report to me, and I act under the superintendence of the Attorney. If an elected Member were involved, I think we would take every precaution, and we would discuss this with the police and various security or intelligence services before taking any such measure.

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