(11 years, 5 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Mr William Cash (Stone) (Con)
I am holding this Adjournment debate in consequence of a very grave injustice that has been done to my constituent, Mr Henry Thorley, who is now aged 88, and in line with the fundamental principles of our constitution, namely redress of grievance and accountability, which go back to the earliest times of our Parliament.
I am appalled by the manner in which this matter has been handled because it strikes me that a case of this kind, relating to a man aged 88, whose correspondence has already been sent to the Chancellor of the Exchequer and to the Exchequer Secretary and has been handled by the person responsible in Her Majesty’s Revenue and Customs, the director of criminal investigation, Mr Donald Toon, does not provide the justice that I believe is owed to my constituent.
The case goes back to the 1970s—indeed, it goes back to a period when my predecessor, Sir Hugh Fraser, was the Member of Parliament for Stafford. I became the Member of Parliament for Stafford in 1984 and I am now the Member of Parliament for Stone, where Mr Henry Thorley resides. I sent to the Minister on 21 May a letter that I received, which summarised various points relating to the case in question. The case is simply explained. At Stoke-on-Trent Crown court in December 1979 Mr Thorley was convicted of theft arising from VAT returns. In 1980 the Court of Appeal quashed the conviction and Mr Thorley left the court utterly blameless.
It appears clear that from the outset the prosecution case was fatally flawed, and the prosecution knew it. A Customs and Excise official had conducted a satisfactory inspection for the period subsequently complained of, and said so in a written report. So, in the words of leading counsel,
“How any prosecution could thereafter be considered let alone persisted in beggars belief.”
He goes on to say that the prosecution of Mr Thorley was, he believed, motivated by malice and conducted in chaos. That is why I have raised the matter and why I am looking for a suitable response from my hon. Friend the Minister.
I have here the report, which has already been sent to my hon. Friend. It is a note of the visit of the person in question from the then Customs and Excise, which shows four items and states quite clearly against them the word “satisfied”. On 2 July 2013 I received a letter through my office from Mr Toon which thanked me for my letter to the Exchequer Secretary and stated that on behalf of the chief executive he would reply, as he had operational responsibility for criminal investigation. He went on to say:
“I have reviewed the papers provided by Mr Thorley’s advisers”—
which, by the way, are well known in the Department—
“but I am afraid that there is nothing more I can add to David Gauke’s letter to you of 23 May 2013. Whilst I sympathise with Mr Thorley, HM Revenue and Customs has no papers in relation to this case and therefore nothing on which to base an apology. The papers enclosed with your letter seem to show that the Appeal Court overturned Mr Thorley’s conviction because of misdirection by the judge in the original trial but this does not mean that the decision to prosecute was flawed.
I know that Mr Thorley will find this reply disappointing but I hope you will understand that without the original case papers I cannot comment further.”
I also had a letter dated 23 May from my hon. Friend the Exchequer Secretary, in which he said:
“I am afraid that following my inquiries, I can only repeat what he has been told in previous letters. HMRC does not hold any papers in relation to his court case. There is no official record, either paper or electronic, of any information in relation to this case and so HMRC cannot confirm on what basis a prosecution was undertaken. Neither can it ascertain from records whether or not there was an appeal. It follows therefore that I cannot comment on the outcome of that appeal. HMRC does not hold any records in relation to Mr Thorley’s original VAT registration, which would have presumably been active when the prosecution took place. Whilst there are some records in relation to a later 1992 registration, these papers make no reference to any previous prosecution.”
In the light of the information I have supplied, I find it unbelievable that there would be no basis for an apology. My constituent—who, at 88, does not have by any reasonable standards much longer to live—has throughout this period been seeking by various means to obtain an apology. He does not want compensation and has made that absolutely clear in correspondence. There is no need for HMRC to be concerned about that if it made an apology. There is no need for electronic files; he was convicted and sent to prison for three years, serving 11 months. As a result of the diligent conduct of his defence by his lawyers, he was released from jail on the orders of no less a judge than Lord Justice Eveleigh. He asks only for an apology.
The judgment of the court was read on 27 and 28 October 1980 by Lord Justice Eveleigh. I will not go through every detail of it—the Minister has a copy—but I will read out some salient points. In June 1975, an investigating officer named Mr Evans from Customs and Excise went to Thorley’s office to investigate the claim for the repayment of £43,000. He expressed the view that he was satisfied, in the document I mentioned earlier. He was given a large number of documents and made inquiries—chiefly from a Mrs Mannering. He was left in the office to investigate these at his leisure and sent in his report. He wrote “satisfied” against all four periods that he investigated. Mr Evans also states that he investigated the position in depth. At the trial four and a half years later he could not say what had happened but felt that the word “satisfied” meant that he had compared the claim with the totals in the books and that the returns had been reconciled. That is why he put “satisfied” against it. I have the paper in front of me signed by this gentleman and so has the Minister.
No one is doubting that the trial took place, that my constituent was sent to jail and released, or that Lord Justice Eveleigh importantly quashed the conviction. Against that background, to my mind it is utterly astonishing that my constituent cannot even get an apology, simply because the records are not available. It is not for me to lay down rules about what records have been or should have been held by the Departments in question, or any other Department, but nobody with any sense of justice—or, indeed, with any common sense—would seriously dispute the facts as I have described them. Nobody has attempted to dispute those facts; they say only that they cannot find the records.
My constituent is now aged 88. He is an old man whom I have met on many occasions, and he is clearly deeply concerned and affected by the manner in which he is being treated. He simply wants an apology—that is all he is asking. The note that I have states:
“This Court concludes that the crux of the Appeal was the misdirection relating to Mr Evans…There had been a misdirection on the material point and the Court concludes that conviction must be quashed.”
Part of that includes a sworn statement by Mr Ian Wright, who stated:
“Between October 1957 and July 1994 I was a Customs and Excise Senior Officer.”
He described what happened, which I have already explained to the House. The statement continues:
“At the time of my own initial visit to Mr Thorley’s company and before the decision to prosecute Mr Thorley was taken I was aware of a report by a colleague, one Graham Harry Evans, of his control visit to the Thorley companies in 1975. This did not indicate anything untoward…Throughout my work alongside Mr Riley whilst in support of his investigation into the affairs of Mr Thorley’s company, I was made aware that Mr Evans’s report would not feature in any way in the Department’s conduct of the case.”
That is from a senior Customs and Excise officer who was looking at the manner in which a prosecution had been levied against my constituent, who has been convicted and released because the conviction was unsound. The statement goes on:
“I progressively became more anxious about this deliberate omission and discussed this in detail with Mr Riley and with numerous of my own senior colleagues over some months before the Court case. At the commencement of Mr Thorley’s trial, the omission of what I considered a very important document (Evans’s report) became apparent to me. Before my own evidence was due, I remonstrated directly with a Crown Solicitor that there were very great dangers in not producing the Evans report. It was then produced in Court immediately thereafter.”
I understand that it was only five minutes before the jury gave its verdict.
I also have a letter dated 13 May 2013 from Mr Thorley’s accountant, which was supplied to me and has been passed on to the Minister. It expresses, on behalf of its client, many of the concerns one would expect. Among other things, it says that, in 1980-81, Mr Thorley lost his home, his business and his family pride. His family were made homeless and his wife had to recommence work to provide food for the family. The letter says that since then he
“has had to try and rebuild what he has lost. Mr Thorley has also tried in vain to get an apology from HMCE (Now H M Revenue & Customs) for their failure of withholding back such crucial evidence.”
Mr Thorley says he is not seeking any financial compensation—
Mr Cash
I find it impossible to understand why so far the Minister has not been prepared to issue an apology. It simply does not stack up. There is no serious dispute about the facts. Is he going to say that Lord Justice Eveleigh had no case? Will he explain why HMRC does not hold the records or why my constituent was put in jail for three years and released because the Court of Appeal, on considering the facts, regarded it as completely unfair, unjust, unacceptable and unreasonable? I cannot explain it any better. It is incredible. I have never before come to the House on an Adjournment debate with such a case. I doubt whether many people have had to come to the House to ask a Minister to apologise. I do not know what he will say, although I have no reasonable doubt about what he should say. I will supply any necessary documents in my possession to anybody at any time to get the justice due to my constituent. He is not asking for compensation; he just wants an apology, which I think the House will agree he is due.
The Exchequer Secretary to the Treasury (Mr David Gauke)
I thank my hon. Friend the Member for Stone (Mr Cash) for his remarks, for securing this debate and for putting forward his constituent’s case with his characteristic eloquence. The case relates to the investigation and subsequent prosecution of one of his constituents by what was then Her Majesty’s Customs and Excise. His constituent and his advisers have approached my hon. Friend requesting a public apology for what they have described as a malicious prosecution by HMCE. I have great sympathy with his constituent for the worry and distress that the case has clearly caused both him and his family, and I hope this afternoon to offer reassurance that the case can be further investigated by Her Majesty’s Revenue and Customs. I shall return to that in a moment.
For reasons I shall explain shortly, however, HMRC does not old information about the case, other than that supplied by my hon. Friend in his correspondence and by his constituent.
Mr Gauke
I am not disputing any of the facts provided by my hon. Friend, but I hope he will allow me to explain the reasons why HMRC does not hold information about this case, other than what has been provided to it by him, and why that constrains what HMRC can say. I will also explain how we might be able to take this matter a little further forward.
Let me deal with the first point about why HMRC does not hold information. In line with the requirements of the Data Protection Act, HMRC must not hold personal data indefinitely, so the organisation regularly reviews and destroys or deletes information. For cases involving criminal investigation, the retention period varies depending on the outcome of the investigation. The default period is six years from the conclusion of the investigation, but when the investigation leads to a conviction, the retention period is the length of sentence imposed plus one year, or six years, whichever is the longer. When an investigation ends in conviction but that conviction is later overturned on appeal, as clearly occurred in this case, the retention period is six years from the Court of Appeal ruling. In the case of my hon. Friend’s constituent, the data relating to the investigation and prosecution would have been destroyed as early as 1986.
However, the Data Protection Act also requires that when someone makes a request for the release of information, the recipient of that request must make a thorough search to see whether it is held, even if the normal destruction date has passed. To that end, HMRC has carried out a department-wide check of all electronic systems and a targeted search of manual records. It also asked the Crown Prosecution Service to check its records to see whether it held anything relating to this constituent’s case. That check has revealed that no such records exist.
Further correspondence from my hon. Friend, enclosing correspondence from his constituent and addressed to the Chancellor of the Exchequer, was passed to HMRC to reply under normal Treasury procedure. That correspondence was dealt with under HMRC’s complaints procedure for ministerial correspondence. I should make it clear that HMRC of course welcomes complaints as an opportunity to apologise and put things right where it has made a mistake, and as a source of learning to make its services better for taxpayers in future.
Mr Cash
On the question of procedure, is my hon. Friend aware of the Cabinet Office’s 2005 guidelines on dealing with letters from Members of Parliament to Ministers, which set out very precisely what has to happen in relation to such letters and the manner in which such letters have to be handled under the Cabinet Office guidelines prescribed by the Prime Minister?
Mr Gauke
The Treasury is aware of the guidelines that apply to ministerial correspondence, and we seek to comply with them. Where operational matters are involved and it is more appropriate for HMRC to deal with them in order to provide as much information as possible and to deal with them as appropriately as possible, HMRC will respond to those letters. My hon. Friend has received a letter from me and from HMRC—indeed, he has received several items of correspondence—on this front.
Let me return to the procedure. Usually, HMRC has a two-stage complaints process, which seeks to deal with as many complaints as possible at the first review. At the end of that stage, the reply tells the customer that if they are still unhappy, they can ask HMRC to look at the complaint again. At that stage, a different official takes a fresh look at the complaint and gives HMRC’s final response. If the customer remains unhappy, they may approach the Adjudicator’s Office. The Adjudicator’s Office will investigate the complaint, drawing together a full and impartial summary of details from the customer and HMRC.
Mr Cash
I have read out the salient reference in the statement of Mr Ian Godfrey Wright, the senior Customs and Excise officer involved. He is a member of HMRC, or he certainly has been—I dare say he is retired now. This statement is dated 1996, so it is possible that it could be followed up, and it contains serious allegations by a senior Customs officer about the conduct of Customs and Excise—as I believe it still was—at the time. It is not as though we are talking just about communication between me and the Minister; we are also talking about sworn statements made by a senior Customs officer, which can be followed up. They must have this record—if they have not got that, I do not know what is going on.
Mr Gauke
Again, I will not repeat the data protection guidelines and the length of time for which HMRC is entitled to hold on to personal data. I note my hon. Friend’s comments about a statement being made in 1996. I do not know what communications there were with HM Customs and Excise, the body in place until the merger in 2005, or how they were made. As I have made clear in my remarks, a search was made across HMRC to locate records on the case, and no records were found.
As I was saying, the Adjudicator provides an independent review of details and makes her decision and recommendation. Customers who continue to be dissatisfied can ask an MP to refer their complaint to the Parliamentary Ombudsman, who will then decide whether to investigate the complaint. If she decided to do so, her investigation might also look at the way in which the Adjudicator’s Office reviewed the complaint.
It is worth noting that this specific case did not follow the normal procedure. My hon. Friend is perfectly entitled to contact Ministers about the matter. He has received replies from senior officials at HMRC and one from me dated 23 May 2013. All those replies carried the same message: given the age of the case and the lack of any of the original papers, HMRC is not in a position to comment with any certainty on the case.
Letters from the Adjudicator to my hon. Friend on 13 March and 25 April 2012 contained a similar message and provided contact details for the Parliamentary Ombudsman. However, if the constituent or his advisers provide HMRC with full copies of all the documents they hold in connection with the matter, I can assure my hon. Friend that it will carry out a thorough review and revert to them with its findings.
Mr Gauke
I will give way, but first I will make this point: my hon. Friend has provided HMRC with information regarding the case that indicates that a conviction was quashed following the finding that there had been a misdirection. As he will also be aware, his constituent’s concern is that there was a malicious prosecution against him. If HMRC has evidence that there was a malicious prosecution against someone, of course it should apologise. If that evidence is presented to it and it is satisfied that that is what has happened, I would hope and expect it to do exactly that.
Mr Cash
Whether or not it was malicious, the question is whether an apology is due, given the fact that—of this there is no doubt—there was a prosecution, my constituent spent time in jail, the conviction was quashed and then he was released. I am simply asking for an apology. There is an element of farce about the situation. I do not want to be told that I should go off to the Ombudsman; I am talking to the Minister, who is accountable to the House. He has responsibility for HMRC and for the conduct of Customs and Excise before it, in one form or another. All I am asking for—it sounds as though I am not going to get it, even this afternoon—is an apology on the Floor of the House from the Minister in relation to this. It is no good just reading out all the bits of paper that have been supplied—
Mr Speaker
Order. The hon. Gentleman’s intervention is a little on the long side. He has expressed some frustration that he does not think that he will get what he wants this afternoon but, on the strength of his 29 years of service in the House and the indefatigability with which he has pursued a variety of causes over those years, he will be well aware that it is open to him to pursue the matter again, and again, and again.
Mr Gauke
Thank you, Mr Speaker, for setting out that prospect.
What I am seeking to say to my hon. Friend is that his constituent clearly feels wronged. He was, as my hon. Friend says, convicted on a case brought by HM Customs and Excise, and that conviction was subsequently quashed. I understand my hon. Friend’s position, which is, in essence, that in any circumstances when someone has been wrongly convicted, the prosecuting authority should apologise to that person. I fully respect that position. However, it must also be said that the fact that an individual is found not guilty after a criminal trial or their conviction being quashed by a higher court on appeal does not necessarily mean that it was inappropriate for the case to have been investigated, or even prosecuted, in the first place. I am sure that my hon. Friend, as a distinguished lawyer, can appreciate that point.
It may well be that in this investigation over 30 years ago HM Customs and Excise behaved wrongly and inappropriately. If that is the case, then his constituent would deserve an apology in those circumstances—let me clear about that—and I would be very happy to give that apology on behalf of HMRC. However, before HMRC is in a position to give a full apology, it needs to see the facts more fully. As I say, the mere evidence that a conviction has been quashed does not necessarily mean that HM Customs and Excise behaved in an unacceptable way. That is why I believe that it is essential that my hon. Friend’s constituent provide all the available paperwork that he and his advisers hold to enable HMRC fully to assess the reasons for the quashing of the conviction.
Mr Gauke
I will allow my hon. Friend to intervene again; he need not worry that I am galloping towards the end.
I am keen to ensure that HMRC looks at the evidence again thoroughly, and if it is in a position to make the apology—I can understand the reasons why my hon. Friend wants that apology sooner rather than later—I am keen to do all I can to facilitate that. My hon. Friend rightly has a reputation for being someone who weighs the evidence thoroughly, and HRMC also needs to weigh the evidence thoroughly before it reaches a conclusion. It might be the easiest thing in the world just to announce an apology, but it should do so on the basis of the facts, and at the moment it does not have those facts.
Mr Cash
Let me refer again to the statement by Mr Wright—a senior Customs officer who I presume, or hope, is still available to be spoken to because his statement was so clear. There is also the opinion of the leading counsel, and there are all the other papers that have been supplied. If the records are not in the Department and no papers are available other than the ones we have already supplied, then I do not know what else we would be able to produce. I think that a careful judgmental assessment of the justice of this case is required, and that the apology is due, although my hon. Friend is now making some very helpful remarks.
Mr Gauke
I am glad that I have had the opportunity to make some helpful remarks. I say to my hon. Friend that the more evidence there is that can be presented, the better. I assure him that HMRC will consider the matter thoroughly and follow the evidence. If an apology is due on the basis of that evidence, it will of course make an apology. I accept that no apology was made when the conviction was quashed more than 30 years ago and that there has been no apology in the intervening 30 years.
I hope that this wider airing of the case and the offer for HMRC to review all his constituent’s paperwork go some way towards providing the assurance that my hon. Friend is seeking. If I have not provided that reassurance or if HMRC’s investigation of the evidence proves to be less than fruitful as far as he is concerned, I suspect, as you have said, Mr Speaker, that we will return to the subject.
Question put and agreed to.