Prisons and Courts Bill

Debate between Lord Bellingham and Lord Garnier

2nd reading: House of Commons
Monday 20th March 2017 Commons Chamber

[Sir Edward Garnier]

Or the nearest prison to that Crown court.

[Sir Henry Bellingham]

They end up in Norwich.

[Sir Edward Garnier]

They end up in Norwich having been via Maidstone, Lewes, somewhere on the Isle of Wight, somewhere in Dorset, somewhere in Devon, somewhere in Bristol, somewhere in the east midlands and somewhere in the west midlands. They eventually end up in Norwich, from where they are released miles away from their family without having had any contact with them. A prisoner’s medical records and education records do not follow them seamlessly.

I have uttered this plea time after time over the past 10 to 15 years and, no matter what party was in government, Ministers have told me, “What a perfectly sensible thing to say.” Unfortunately, because the politics is in sentencing, not prisoners, little is done about it. I hope that on this occasion, with this new Secretary of State for Justice, we will see an advance whereby it will not take another 65 years until we have a new prisons Bill to consider that question because we will not need such a Bill. I hope that in a few years we will see a reduction in prisoner numbers, an increase in reform and a reduction in reoffending levels, for the benefit of the public and the taxpayers whom my hon. Friend the Member for Shipley and I want to protect, in terms of not only their pockets but their safety in their homes. I want an improvement to the advantage of us all.

Criminal Finances Bill

Debate between Lord Bellingham and Lord Garnier

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 21st February 2017 Commons Chamber

[Sir Edward Garnier]

I shall be relatively brief in introducing this group of new clauses. In moving new clause 2, which stands in my name and those of a number of hon. Members on both sides of the House and which mirrors new clauses 3, 4, 14 and 15, I want to introduce a debate about the future of corporate criminal liability in this jurisdiction. I must declare an interest, as over the past few years I have been instructed by the Serious Fraud Office in a number of cases involving the prosecution of large international companies. One of the problems that prosecutors and, no doubt, investigators have found in this jurisdiction when dealing with the modern corporate landscape—to use that hideous jargon—involves trying to fix liability on a company suspected of criminal activity, as a matter of criminal law. It is not difficult to fix criminal liability on an individual if the evidence is there: the person either did or did not do it, and they either did or did not have the necessary criminal intent.

Under current English law, however, fixing criminal liability on a corporation involves resorting to what is called the identification principle. This involves finding someone of sufficient seniority within a corporation who can act as or be described as the directing mind of the company. Through that identified person, we can then move on to fix criminal liability on the corporation. That was fine in the Victorian era, when most companies had one or two directors. An example would be a small business in a market town in the 1860s or 1870s, which would have been owned and directed by two or three men—it was always men in those days. If a fraud was committed on behalf of the company, it would have been perfectly easy to find the directing mind of that company among the small group of directors.

As the industrial revolution and corporate legal development proceeded during the late 19th century and early 20th century, however, it became clear that companies were getting bigger. An increase in international trade meant that companies based in this country had offices, and directing minds, in other parts of the world. In 1912, the United States dealt with this by doing away with the identification principle involving the directing mind and, through case law, by developing a principle in criminal law that a company could be vicariously liable for the criminal acts of its employees on the basis that they were conducting criminal activities for the benefit and on behalf of the company.

We in this country reached the stage long ago at which we needed to reform the way in which we look at corporate criminal liability. The hon. Member for Dumfries and Galloway (Richard Arkless), with his Scottish legal experience, will no doubt inform us whether the situation is the same in Scotland as it is in England, but I believe that it is uncontroversial to say that the Victorian identification principle is no longer apt to deal with international corporations. I am not picking on the company that I am about to mention because I think it has committed a criminal offence; quite the contrary—I just want to use it as an example of a large international company. British Telecommunications is a huge company that employs hundreds of thousands of people all around the globe doing various things in the telecoms world, all of them entirely legitimate and beneficial to the company, its shareholders and our national economy. Surely, however, it is a matter of common sense to say that it would be extremely difficult nowadays to fix upon an individual or small group of individuals as representing the directing mind of that company if it was suspected that an offence had been committed many miles away from the main board and the headquarters of the company in London. I repeat that I have used British Telecommunications simply as an example of a large international company with operations right around the world.

Of course it would be perfectly possible to fix upon an individual, a human being, who had committed an offence. It might well be that that individual had committed an offence for the benefit of the international corporation, but unless that person was of sufficient seniority within the hierarchy of that great big international company, it would be very difficult to fix criminal liability for that person’s offence on the corporation as well. As I have said, the United States has been getting round that problem for more than 100 years by using the principle of vicarious liability, which we are used to dealing with in this country in civil law but not in criminal law.

I believe that there are two ways in which we can approach this question, and this is the whole point of the new clauses that I and others have tabled. First, we could use the American system of vicarious liability, and there are plenty of good arguments for doing so. Secondly, we could approach the problem—as we have done in the new clauses—by using the failure to prevent regime, in which, when a company fails to prevent someone or another body associated with it from committing a specified offence, it thereby becomes liable for the criminal offence itself. We already have that provision on the statute book in section 7 of the Bribery Act 2010, and it is about to be added to the statute book through the existing provisions in this Bill relating to tax offences. That follows David Cameron’s speech to the corruption summit at Lancaster House last summer.

In pushing forward these new clauses, I want to invite Parliament, in this House and the other place, and the Government—by which I mean not only the political Government but the non-political Government: the officials who run the Government day by day and advise on matters of policy—to consider whether extending the failure to prevent regime would be an easier and better way to deal with this than turning the whole thing on its head by adopting the vicarious liability principle wholesale.

There are plenty of arguments for and against the extension of the section 7 failure to prevent bribery model. I have attended a number of meetings with criminal lawyers who are far more experienced than I am. Indeed, I see one sitting just two Benches in front of me, behind the Minister. My hon. Friend the Member for Louth and Horncastle (Victoria Atkins) will know, as I have come to learn over the past few years since I have taken an interest in corporate crime, that a number of difficulties are created by the failure to prevent model. I will not rehearse them all now, but some of those difficulties were set out on Friday 13 January 2017 in the Ministry of Justice’s “Call for evidence” paper, which sets out five options for a failure to prevent regime.

I favour the failure to prevent model over the vicarious liability model because it is already set within our system. The new clauses would not extend the principle but merely extend the ambit of the criminal offences that could come within a failure to prevent system. The provisions will not be brought into this Bill because it is highly unlikely that the Government would accept any of them—albeit they may nod politely at them—when the Ministry of Justice’s call for evidence process is still open. However, I hope that the Government will look carefully at the shape and design of the new clauses with a view to considering vigorously whether what we have proposed as a matter of principle is worthy of greater thought.

The intention of new clause 2 is to create a corporate offence of failing to prevent economic crime, as defined by reference to the offences listed in part 2 of schedule 17 to the Crime and Courts Act 2013. Again, I will do my best to be brief. That schedule brought in the deferred prosecution agreement system for dealing with errant companies. I declare an interest, with both capital and small letters, in that not only have I been instructed by the SFO in two of the three deferred prosecution agreements that have so far taken place, but I brought the system into law when I was Solicitor General—at least I began it before I got the sack. There is a cloud in every silver lining, is there not?

[Sir Henry Bellingham (North West Norfolk) (Con)]

Very few in this case.

[Sir Edward Garnier]

Very few. I am diverting myself, because I deliberately said “a cloud in every silver lining” not “a silver lining in every cloud.”

The short point is that schedule 17 to the 2013 Act contains about 50 economic and financial criminal offences that can be dealt with through deferred prosecution agreements between either the Crown Prosecution Service or the SFO on the one hand and corporations—that is to say respondents and defendants that are not human beings—on the other. Those offences are perfectly capable of being moved across into the failure to prevent regime. As I said, section 7 of the Bribery Act 2010 makes it an offence to fail to prevent bribery, and we are about to have an offence of failing to prevent a tax offence, so why not—I ask rhetorically on this occasion—extend the failure to prevent regime across to these other offences? New clause 3 does exactly the same, save that it limits the offences to those set out in its subsection (2).

New clauses 4, 14 and 15 contain provisions suggested by the hon. Member for Newcastle upon Tyne North (Catherine McKinnell) that broadly address the same issue that I am discussing. I will not press new clause 2 to a Division, because these are probing amendments designed to create a public discussion, and I hope that they will inform the Ministry of Justice’s discussion paper. I also hope that they will encourage the Home Office and the Minister, with whom I have had some useful discussions about this and other matters to do with the Bill, to consider carefully and positively the extension of the failure to prevent regime.

RSPCA (Prosecutions)

Debate between Lord Bellingham and Lord Garnier

Tuesday 29th January 2013 Westminster Hall

[Sir Edward Garnier]

The hon. Lady was in court and clearly knows more about the detail of the case than I do, but it strikes me that anybody who manages to run up prosecution costs of more than £300,000 on a summary case in a magistrates court is rightly subject to criticism for being responsible for a disproportionate piece of activity.

My simple point is that if the RSPCA does so, it cannot expect to escape public criticism, either in this Chamber or elsewhere, and I am entitled to make that criticism. Were such a prosecution brought by the Crown Prosecution Service, whether on the evidence or the public interest test, as it could well have been, there would have been a far greater grip on the management of that case. I do not imagine that, when the cost of prosecutions in magistrates courts are in the low thousands of pounds, rather than the low hundreds of thousands, the CPS would have gone about it in quite that way.

We need dispassionate intervention from the CPS in such cases. This is not to say that the RSPCA should not or may not investigate but, like the police, it should hand the evidence to the CPS for it to make a dispassionate judgment.

[Mr Henry Bellingham (North West Norfolk) (Con)]

My hon. and learned Friend makes a good point. I am a member of the RSCPA and support its prosecutions, but this was a summary case before the magistrates court, so why did it not, in the first instance, use its own in-house team of lawyers—which I as a member have to pay for—and go to expensive Queen’s counsels only when the case goes to the higher court? Surely, it was an error of judgment on the part of the RSCPA to use up such huge amounts of its members’ money.

[Sir Edward Garnier]

I am very fond of expensive QCs, but it is a matter of judgment. The RSCPA, in that case, made a misjudgment. I am not criticising, for one moment, the quality of the representation that it had, but any private organisation, whether a charity or an individual, spending such an amount of money on that sort of prosecution is open to criticism. If I were a member of the RSCPA, I would want to know that my money was going to the purpose that I thought it was intended to go towards, that is to say, protecting animal welfare, rather than—as it appears, from comments made by many—the pursuit of some political agenda.

Last October, I asked the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright), an oral question in Justice questions about why the courts rarely seem to make costs orders against the RSCPA when it brings prosecutions that fail, either because it got the law or the facts wrong, and cases collapse. Although the Minister promised to write to me, he did not, but the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), kindly replied with a somewhat opaque letter, which did not contain any information of interest or value relating to the discussion that I intended to have.

Undoubtedly, the RPSCA is fortunate because it is not subjected, as the CPS is, to orders for costs when it makes a mess or fails to bring home a prosecution. The CPS set aside £154,000 in the financial year 2005-06, and more than £1.5 million in 2010-11, in relation to costs awarded against it by the courts. Whether those costs fell under section 19 or section 19A of the Prosecution of Offences Act 1985 does not much matter: these are big numbers. The CPS has a turnover of some £600 million and I understand that the RPSCA has a turnover of about £120 million. One would think that there ought to be some read-across for the sums paid in response to costs orders, but we do not see that.

Finally, I think it was my hon. Friend the Member for Carmarthen West and South Pembrokeshire who suggested that Her Majesty’s Crown Prosecution Service inspectorate should, either of its own volition or with the encouragement of the Attorney-General, consider the way the RPSCA conducts its prosecutions, whether thematically or by looking at particular cases. I agree with my hon. Friend, and I encourage my right hon. and learned Friend the Attorney-General to do that. When he and I worked together—it was a joy—we encouraged the Serious Fraud Office to invite the inspectorate to look at its prosecuting activities. That was a beneficial and useful inspection. I encourage my right hon. and learned Friend, in the little spare time that he has, to encourage Mike Fuller to look at how the RSPCA conducts its activities as a prosecutor.

Of course, I respect the right of the RSCPA to conduct itself as an animal welfare charity with all the vigour and all the money that it can lay its hands on, but it needs to be careful that it does not move away from being an animal welfare organisation and becomes a political campaigner, using the state prosecuting system as a weapon to promote its political campaigns.