Serious Fraud Office

Lord Garnier Excerpts

Tuesday 7th February 2017 Westminster Hall

[Sir Edward Garnier (Harborough) (Con)]

I congratulate the right hon. Member for East Ham (Stephen Timms) on initiating the debate. I listened to him with great care and gratitude, because he spoke as a critical friend of the Serious Fraud Office. As he gently pointed out, when the current Prime Minister was Home Secretary, she was perhaps not a friend, even if she was critical, of the SFO. Possibly—who knows?—one reason I remained a Law Officer for two and a half years, but no longer, was because I fell out with the Home Secretary over the independence of the Serious Fraud Office.

There is a misunderstanding among politicians about the Roskill model and its value. However, before I go on further, I declare an interest—as must be obvious—in the SFO and all that it does. I also declare an interest in that, like my hon. Friend the Member for Cheltenham (Alex Chalk), the SFO instructs me from time to time as a member of the private Bar. One of the most recent cases that I have been instructed in was that of Rolls-Royce, which the right hon. Member for East Ham spoke about. Although I do not want to talk too much about my wonderful case load, I want to use the case of Rolls-Royce to illustrate the successful way in which the organisation deals with criminal activity at the corporate and most complex level.

It is a given, certainly among those who know anything about the Serious Fraud Office, that the Roskill model of having a joint investigating and prosecuting system in the organisation works. Although plenty of people criticise the SFO—as the right hon. Gentleman said fairly, it is not beyond criticism, and there are things to be said about the blockbuster system and so forth—it is remarkably successful, given the limited resources under which it has to operate.

When I was shadow Attorney General in the lead-up to the 2010 election, I made quite a study of the way in which the Serious Fraud Office operated, not least because it was one of the most important aspects of our prosecuting system that came under the supervision of the Attorney General and the Solicitor General. When I got into office in 2010, it was clear that the comprehensive spending review that the new Government introduced would have a pretty direct and possibly damaging effect on the SFO’s ability to carry out its important work. That persuaded me that we needed to find other pragmatic ways of allowing the SFO to get on and catch villains, both human and corporate. I was particularly concerned that we were underperforming on—that we were inhibiting—the prosecution and conviction of corporate crime.

Of course we were, and still are, beset by the Victorian identification principle: in order for a company to be convicted of a crime, a directing mind of sufficient seniority has to be able to be identified in order to fix criminal liability on the company. That was fine in the 1860s, 1870s or the 1880s, when companies had a board of two or three and operated within a town or a county—or possibly even within the country as a whole—but the vast international conglomerates that there are now, with offices in several jurisdictions and boards, sub-boards, national and international boards, make it extremely difficult for the Serious Fraud Office to attach criminal liability for a crime to the company. Individual financial directors, country directors, or country managing directors can be prosecuted, as the SFO has—we have seen that happen in a number of the cases that the right hon. Gentleman referred to—but that has proved difficult when dealing with international companies that misconduct themselves.

That is why—this is a slight diversion, but an important one—this House and the Government should develop the “failure to prevent” model. Under section 7 of the Bribery Act 2010, it is a criminal offence for a company to fail to prevent bribery by one of its associated people or bodies. The first deferred prosecution agreement—in which I appeared, as it happened—dealt with the failure of a bank to prevent bribery by one, or a number, of its staff in Dar es Salaam in Tanzania. Under the terms of the deferred prosecution agreement, that brought in from the errant bank about US$25 million in costs and penalties.

As the right hon. Gentleman correctly identified, the Rolls-Royce case brought in something in excess of half a billion pounds sterling, which will be paid by that company over the next five years. Beyond the penalty, it will have to pay interest on the delayed payment. More importantly, as far as funding the Serious Fraud Office is concerned, part of the deferred prosecution agreement is that the respondent company pays the SFO’s costs, which, at the time of the announcement of the agreement before the President of the Queen’s Bench division, Sir Brian Leveson, 10 or so days ago, amounted to about £13 million. Sadly, that £13 million did not go into the Edward Garnier special holiday fund; it went into reimbursing the Serious Fraud Office for what was essentially the biggest investigation that it had ever done since its inception. That investigation required huge international co-operation with the United States Department of Justice and with investigators and prosecutors in a number of other jurisdictions—the criminal allegations against Rolls-Royce covered the company’s activities within seven jurisdictions.

While the Rolls-Royce matter was being brought to an end a fortnight or so ago in this country, it was also being brought to an end in the United States and in Brazil, where the company had to pay the authorities about $176 million and $25 million respectively. That illustrates how the Serious Fraud Office can be pragmatic, efficient and effective now that it has the deferred prosecution agreement model and can use its money wisely to bring international companies to book for international criminal conduct.

[Alex Chalk]

Now that the SFO has more tools at its disposal, including the DPA model, does my right hon. and learned Friend believe that its workload will increase? Does that make the case for a larger underlying capacity, as the right hon. Member for East Ham indicated?

[Sir Edward Garnier]

Yes. The DPA system is a new tool—there have been three DPA cases—but if the Serious Fraud Office is to carry out its international investigative work at the highest and most complex level, it will need a bigger budget. That was clear to me when I became Solicitor General in 2010 and it remains clear to me now. In 2010, as I understood it, the revenue budget was about £40 million and was set to go down over the course of the Parliament, under the comprehensive spending review, to something like £29 million.

When I went to the United States to discuss international corporate crime and learn from American prosecutors about the system for prosecuting corporate crime there, one of the federal prosecutors in Manhattan asked me how much our budget was. I said, “It’s about £40 million, going down to just under £30 million.” He laughed and said, “Is that just for one office?” I said, “No, it’s for the entire jurisdiction: England and Wales, and Northern Ireland”—unusually for a prosecuting agency in this country, the Serious Fraud Office covers England, Wales and Northern Ireland, but not Scotland. The American prosecutor found it unbelievable that one of the centres of the financial world had a serious fraud office that ran on that amount of money. He went on to joke that he spent more than that on flowers at home; I do not think that that was quite true, but I would not be at all surprised if he lived pretty well. Good luck to him.

What I want the House to understand is that there is no perfect way to sort this out. The right hon. Member for East Ham is entirely right to say that there are uncertainties and, to some extent, an absence of transparency—or at least prospective transparency—in how the blockbuster system works. There is retrospective transparency, because the Justice Committee, Parliament, the National Audit Office and non-governmental organisations such as Transparency International—to pick one organisation at random—can delve into the SFO’s financial workings. I accept that although the blockbuster system works up to a point, it is not ideal, but the best is often the enemy of the good; I would rather the SFO could apply to the Treasury for blockbuster funding than its being constantly in danger of having its budget slashed and slashed again. The SFO is unusual and not very well known and therefore not terribly politically popular. Obviously its work is often private, because if its investigations are not conducted in privacy, the villains get away—I take the right hon. Gentleman’s point about that.

To assist the SFO in its complicated and difficult work, we need to think hard about how to nail corporate misconduct. Will we be brave enough to move to the American system of vicarious corporate liability, so that when an employee commits in the course of their work a crime that has a benefit for their company, the company should be liable in criminal law—just as it would be in civil law for the negligence of one of its drivers, for instance? If not, we will have to extend the failure-to-prevent model. The Criminal Finances Bill that is going through the House at the moment will enact a failure-to-prevent tax offence; I have tabled some amendments that would extend the list of failure-to-prevent offences to a far wider collection of financial crimes. My amendments will not be agreed to, but Parliament needs to debate the issue. I look forward to co-operating with the right hon. Gentleman, who not only has experience as a Treasury Minister but can no doubt see the City of London across the road from his constituency office. I hope that the question of developing the criminal law to meet the increased sophistication with which business is done internationally will be cross-party and non-partisan.

On the right hon. Gentleman’s point about staff, I agree that any form of threat to any organisation from the promise or threat of change is distracting and destabilising. Now that the SFO is doing good work and building on its record of success with LIBOR, with the three deferred prosecution agreements and with the cases against Barclays bank, GSK and others, the one thing that it does not need is to be subjected to further interference. That would be destabilising and cause the employment equivalent of planning blight. Imagine a bright young lawyer in a City firm who thinks that it might be good to go and work for the Serious Fraud Office for a while. It would be, and it is, but if they know that the Government want to pull up the pot plant every 20 minutes and have a look at the roots, the SFO is not going to seem like a very stable place to go and work.

I want to see people from the private sector—the big City firms that have expertise in dealing with corporate crime, mergers and acquisitions and the highly complicated banking law that is sometimes involved—coming to work for the SFO for two or three years. I also want permanent members of the SFO staff to go into the City firms and other banking organisations, so that there is proper cross-fertilisation. What I do not want is for the current Whitehall fascination with sticking things with nice initials into great pots of alphabet soup to destroy David Green’s valuable work or distract him from it. I am proud to say that he is a personal friend of mine; he and his organisation have a proud record of demonstrating to the Government that it is worth every penny it gets and that it ought to get yet more money, so that it can catch more and more villains.

The reputation of our country is to a large extent built upon our financial services industry. Our corporations that sustain that industry—be they banks, be they insurance companies, be they whatever—and the people who work in it need to know that if they step beyond the line of honesty and acceptable behaviour, there is an investigating prosecuting authority that will not only come and get them but will make sure that they are convicted. That is what our constituents want. They want a vibrant financial services industry, but they also want an honest one, which attracts business, taxation and employment to our constituencies, whether they are in East Ham or Harborough.

Mr Owen, thank you for your patience. I hope that my hon. and learned Friend the Solicitor General can give me the reassurance that the SFO is safe from interference and distraction, and that we can look forward to another period of success, and well-funded success, for this most impressive organisation.

--- Later in debate ---

[Mark Field]

My hon. Friend makes a fair point, although in the comparison he draws he also possibly makes a point about the expense of defence procurement.

Those of us of a certain age cannot help but be transported back in time when we learn of the SFO’s requests for so-called blockbuster funding to pay for major investigations. Some Members will know that I am a keen pop music fan, and it is exactly 44 years ago today that the glam rock anthem “Blockbuster” by The Sweet was at No. 1 in the UK charts. Now, I am not sure that the 17-year-old future right hon. Member for East Ham was a great glam rock fan, but I am sure that his hair was fashionably longer back in 1973.

The cost of funding the SFO’s blockbuster investigations now invariably takes the SFO well beyond the Treasury’s year-on-year allocation of funding, as we have heard from other Members. Last year, the SFO’s spending reached some £65 million, which was a 12% uplift on the 2015 figure. Blockbuster funding has been applied for, not on an exceptional basis but for four of the last five years, so presumably that form of funding is here to stay permanently, at least in the eyes of the Solicitor General. I would be interested to hear what he has to say about that.

As my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) has pointed out, at the end of last year the SFO successfully secured funding to pursue criminal investigations against the Monaco-based Unaoil, which stands accused of securing complex corrupt contracts for a range of multinationals, including Rolls-Royce. I understand that the ongoing investigations over Barclays in Qatar and a range of potential fraud cases involving foreign exchange may yet have to be subject to special blockbuster funding appeals. Although I accept the Government line that that sort of mechanism allows the SFO great flexibility in the allocation of work, I trust that, as large and complex investigations become the norm, a serious re-evaluation of the pros and cons of the funding system for the SFO will be carried out.

I have to say something else, which I know will lead to my parting company with my right hon. and learned Friend in his paean to how wonderful the SFO is: I deeply regret that the reform of the entire workings of the SFO is overdue, and I believe that was yet another missed opportunity for the coalition Administration who were in office between 2010 and 2015.

For my part, as long ago as the autumn of 2009 I wrote two essays for the ConservativeHome website in the immediate aftermath of the financial crisis, setting out what I regarded as a proposed blueprint for the SFO. Then as now, I contend that an effective financial enforcement system requires the promotion of deterrence and competition, in order to boost consumer protection. Even at that time, a year after the financial crisis began, it seemed clear that, despite grandstanding galore from politicians, there was—indeed, there remains—a growing unease at the paucity of substantial change in the aftermath of that crisis.

Nowhere did that feeling resonate more than in the field of enforcement, where the prospect of adopting US-style powers to prosecute alleged wrongdoers in financial services has of course been dashed. Although over the past year or so the SFO has finally secured LIBOR convictions, it is in all honesty a body that I am afraid has long lacked clout and the respect of those who are most engaged in the financial industry.

As the right hon. Member for East Ham has said, the SFO has been operational since 1988 and the Roskill reforms. It is responsible for the detection, investigation and prosecution of serious fraud cases in England, Wales and Northern Ireland. Although it is operationally independent—as it should be—the SFO comes within the remit of the Attorney General and is given the power to bring criminal prosecutions directly. In contrast, the FCA is able to impose civil sanctions and launch criminal cases on matters such as market abuse, working in tandem with the City of London police and the Crown Prosecution Service.

There are some lawyers—perhaps those who are less close to the SFO’s workings—who continue to lament the difficulties associated with securing convictions for fraud, especially given the collapse of a number of highly complex jury trials. For that reason, many people feel that the introduction of a system of plea bargaining similar to that in the USA would not work. No one will risk blowing the whistle or turning themselves in when the likelihood of a successful prosecution being brought is—at least in recent years, as we have seen—so slim.

The SFO’s problems are not necessarily personnel problems; I agree with what was said earlier. However, having spoken to experts in this field, I have come to believe that one of the organisation’s main problems is in finding cases to investigate. Only when the police or the Attorney General have firm cause to believe that a criminal act has occurred is the SFO permitted to get involved. Moreover, when a case does get under way, its prosecutors routinely face months of battling defence lawyers before they can even get to trial. Of course, the defence has a strong incentive to engage in a war of attrition, in order to derail a prosecution on legal technicalities.

As a result, I think we have faced this task of reforming the financial services system and inculcating in the minds of its participants that sense of right and wrong, with an “umpire”—the SFO, in this case—that too often has lacked the tools or the respect from the market to do its job properly. I am not making any personal criticism of David Green, who, while at the helm, has developed a number of improvements to the SFO in the last three or four years.

Instinctively, I support a more robust economic crime policy, which would place the promotion of commercial competition at the heart of a new code of enforcement designed to deter fraudulent, anti-competitive or criminal activity. Such a policy should centre upon a new agency in place of the SFO, which would combine the SFO and the FCA’s enforcement division.

It is perhaps incongruous that the SFO stands under the jurisdiction of the Attorney General, although I very much appreciate that the right hon. Member for East Ham put that arrangement into some sort of historical perspective. Nevertheless, we should now look to place the SFO’s responsibilities within the remit of the Department for Business, Energy and Industrial Strategy, so that the SFO would work alongside the Competition and Markets Authority. By associating consumer protection with fraud and trust-busting, we would give competition its correct place as a central priority in the future commercial landscape.

[Sir Edward Garnier]

Is it not a problem to place the supervision of a prosecutor with a spending Ministry—a political Ministry? Obviously, the advantage of leaving the SFO and the CPS where they are—that is, under the supervision of the Attorney General—is that, in that respect, the Attorney General and the Solicitor General are not politicians, but protectors of the public interest. As soon as a Cabinet applies pressure upon a political Secretary of State, and we have seen this recently with the—

[Albert Owen (in the Chair)]

Order. Mark Field.

[Sir Edward Garnier]

I quite agree.

[Mark Field]

I very much take on board what my right hon. and learned Friend says, and I understand his concerns. He made a powerful point towards the end of his speech about the importance of there being public trust in the financial services sphere if it is to be the success we all hope it will be in the post-Brexit world.

To effect the necessary sea change in attitude and create a body with the powers of its US equivalent, we would need to be able to impose substantial fines on wrongdoers. Such fines could play a role in covering the costs of any new organisation. Clearly, there would be a need for some legislative changes, but measures would also need to be put in place to protect whistleblowers and offer genuine immunity to those who were aware of anti-competitive practice when they came forward.

Investigatory Powers Bill

Lord Garnier Excerpts

Ping Pong: House of Commons
Tuesday 15th November 2016 Commons Chamber

The Minister said that this set of amendments was inappropriate. He has said that he opposes them because of the doctrine of unripe time. I put it to Members that it is for the House to decide whether these amendments are appropriate and timely. I support the Lords amendments.

[Sir Edward Garnier (Harborough) (Con)]

I rise to support my hon. and learned Friend the Solicitor General in his resistance to the Lords amendments, which was based on principle rather than over-excitement or hyperbole. It seems to me that the motion put forward in the other place—no doubt well intentioned—does not entirely cover the justice of the case. Before I move on to the main part of my argument, I would like to declare an interest, in that I have some 40 or 45 years’ experience as a member of the media and libel Bar.

The first Lords amendment proposes a new clause to be inserted after clause 8, and I am particularly disturbed by one or two aspects of it. I fully appreciate that as a matter of policy and politics, we in the House, the Government and Parliament generally frequently make use of what I would call the nudge system of trying to encourage people to be of better behaviour. We introduce laws that seek to persuade people not to behave in an antisocial or criminal manner. Broadly, it is the use of incentives to encourage better behaviour, and I have a suspicion that that is what is behind the Leveson report and their lordships’ proposed new clause.

In some respects, the provision is in the wrong place. The Bill is about investigatory powers and although I accept and applaud the ingenuity of those who introduced the new clause in the other place, I believe that introducing it into this important Bill, though understandable, is not the best place for them to have done so. They risk imperilling the policy behind the Investigatory Powers Bill without advancing their own cause in respect of those grievously and adversely affected by phone hacking.

While the proposed new clause is, on the face of it, of course related to phone hacking, it seems to me that it is not limited to phone hacking. If we look at subsection (1)(b), we see that the defendant in question needs to be “a relevant publisher”—that is fair enough—but if we look at subsection (1)(c), we find that it deals with claims

“related to the publication of news-related material.”

It may be that the news-related material has come as a consequence of phone hacking, and as my hon. Friend the Member for South Dorset (Richard Drax) has correctly pointed out, phone hacking is already a crime and the criminal justice system is already able to get a grip on it. When it comes to the consequences of hacking someone’s phone, there could be a public interest defence to the criminal charge of phone hacking. The newspaper might publish material that a claimant says is in breach of his rights of privacy or a misuse of private information or a breach of confidence, or it could amount to a defamation. None of those additional civil claims is covered by this nudge or incentive proposal. I think that we need to be wary lest a legitimate exposure of misconduct on the part of, say, a public authority or a person in the public sphere might be inhibited by this no doubt well-intentioned new clause.

The first point that I would make to my hon. and learned Friend the Solicitor General is that subsection (1) of the new clause does not limit the nudging or the incentives to the misdemeanour of phone hacking. It goes beyond that, and in doing so, it seems to me, could put a defendant newspaper or publisher in danger of being penalised for doing what might turn out to have been the right thing. As I said a moment ago, it might well be that the initial phone hacking was on the face of it criminal, but there might be a defence for it, and, moreover, the product—the fruit—of that phone hacking, legitimised because it was in the public interest, might lead to a further claim in a cause of action under civil law.

The defendant publisher might win the case, because what had been written might be true, and it might not be against the public interest to publish the confidential information because it had exposed iniquity or something of that nature. The defendant newspaper—if it is a newspaper—should therefore be entitled to win the case and defeat the claim. Under the new clause, however, although the claim had been defeated and the publishing defendant had won the case, the defendant would be required to pay the undeserving claimant’s costs as well as its own because the defendant might not be a member of some approved regulator.

[Joanna Cherry]

I am listening with great care to what the right hon. and learned Gentleman is saying. May I suggest to him that the situation that he has just described is covered by the proviso in subsection (3)(b) of the new clause proposed in Lords amendment 15C, which states that the court may take account of whether

“it is just and equitable in all the circumstances of the case”

to make a different award of costs? May I suggest that in the circumstances that he has described, the “just and equitable” exception would kick in, and a newspaper that had a valid defence and had revealed iniquity as a result of hacking could pray it in aid?

[Sir Edward Garnier]

It might if both new clauses became law, but it might not if the new clause to which the hon. and learned Lady has referred did not become law, and we were left with only the one with which I am dealing.

My second point is this. Why should a well-intentioned and successful defendant publisher have to risk the expense of successfully defending a claim and then having to pay the costs of the unsuccessful claimant? That strikes me as unjust. The House is famous for passing laws that are laden—replete—with unintended consequences. It seems to me, however, that when an amendment paper contains a proposal that will clearly lead to a problem—although I am not suggesting that it would be an insoluble problem—we would be foolish not to warn the Government against it. I am delighted to see that the Government seem to have mustered their forces and thinking processes in such a way that an unjust law will not be passed.

When I spoke in the House following the publication of the Leveson report, I was sufficiently pompous and self-confident to rebuke Members who thought that the inquiry, and the report that followed it, meant that there would be state regulation of the press. There will be no such thing as a consequence of the Leveson inquiry. However, I feel that I am entitled to warn Members who, like me, thoroughly disapprove of illegal phone hacking not to assume that once the words “phone hacking” have been uttered, that permits the House, the Government and the courts to rain down on successful, innocent and well-intentioned defendant publishers the burden of the costs of successfully defending a claim.

It should be borne in mind that defendants do not choose to be defendants. Of course they choose to publish the material that they have got hold of, but it is the claimant who feels obliged, or makes the choice, to sue the defendant. To be sued as a defendant is tedious enough, but to be sued as a defendant, to win, and then to be required to pay the costs of the unmeritorious claim must surely constitute even more of a punishment.

[Sir Oliver Letwin (West Dorset) (Con)]

Is there not another choice that the media can make? Can they not choose to subscribe to a compliant regulator and thereby avoid the need for all the regulation and legislation that we do not want to see in the Bill?

[Sir Edward Garnier]

Of course I understand what my right hon. Friend has said. He is one of the most sophisticated proponents of the “nudge” or incentive system of lawmaking, and I salute him for that. I sometimes wonder, however, whether it is a good idea to use the force of what are essentially the punitive elements of the legal system to encourage innocent defendants to pay the costs of unmeritorious claims. Yes, in a perfect world we would all settle our disputes, and people would not even provoke disputes in the first place; but to be compelled, on penalty of having to pay out large sums in legal costs, to join an organisation of which one either does not approve for one reason or another, or does not wish to join for one reason or another, strikes me as unjust.

I have been a victim of, shall we say, stupid conduct by the press. It is very annoying. I have seen others, not only my friends and colleagues but people for whom I have acted, having to deal with the misconduct of the media. But I would rather have a system which recognised justice—

[Lyn Brown (West Ham) (Lab)]

Does the right hon. and learned Gentleman not see a difference between himself—as he has already told us, he is a leading advocate at the criminal Bar dealing with these matters on a day-to-day basis to earn his crust—and someone who does not have those advantages and who is caught in the same snare?

[Sir Edward Garnier]

I do not wish to be rude to the hon. Lady, but I did not say any of those things. I am not a leading member of the criminal Bar. I happened for some little while to be a member of the media and defamation Bar, which may be a distinction without a difference as far as she is concerned. [Interruption.] She may disagree with me—she may disagree with me vehemently—but what we are trying to do is to pass good law. If my colleagues on the Front Bench, and those around me, disagree with me, fine: go ahead and disagree with me.

[Bill Wiggin (North Herefordshire) (Con)]

We do.

[Sir Edward Garnier]

My hon. Friend clearly does.

[Bill Wiggin]

I absolutely disagree with my right hon. and learned Friend. I have been sitting here listening to him carefully, but I cannot think of any other industry that does not offer any sort of guarantee. If people make faulty washing machines, they replace them, but if they publish stories about people, they have already made their money by the time they end up being sued, and that is why the papers have to bear some of the cost.

[Sir Edward Garnier]

My hon. Friend’s intervention demonstrates to me that I have not made myself clear. What I am suggesting is that it is wrong for a claimant who has lost his case to demand the costs from the successful defendant. I am not suggesting that if I make a faulty washing machine, I should not be liable, under law or morally, to put the matter right. However, if I have made a good washing machine, the fact that my hon. Friend does not like the colour of it, or the fact that it revolves in any number of ways—[Interruption.] I am in danger, Madam Deputy Speaker, of reducing the level of the debate to something that it should not be. I will stop now, because I think I have made the points that I wish to make with sufficient clarity. Some will agree with me and some will not, but I urge the Government to be very wary about passing unjust laws for very well-motivated purposes.

[Several hon. Members rose—]

European Convention on Human Rights: UK Membership

Lord Garnier Excerpts

Tuesday 26th April 2016 Commons Chamber

[The Attorney General]

I think I have been very clear about what the Government’s policy is. The Home Secretary yesterday explained why the status quo is unacceptable. There is a difference between the convention that was drawn up in the 1950s and the interpretation given to it by judges in Strasbourg since that time. It is with the latter that we have an issue, not with the former.

[Sir Edward Garnier (Harborough) (Con)]

One of the great advantages of the Attorney General’s coming to speak on behalf of the Home Secretary is that he is not enmeshed in the near-Trappist reticence that normally applies to a Law Officer. Given the freedom that the Home Secretary has kindly given him, will he invite her, next time he has a candid conversation with her, to explain something to the Turkish journalists, media organisations, police and judges, all of whom have been the subject of some pretty revolting treatment by the Turkish Government, and who look to the convention and to the Court for protection that they cannot get in their domestic courts and jurisdiction? Will he ask the Home Secretary to look those people in the face and say that our leaving the convention would not affect their rights or undermine their proper reliance on the standards of civilised behaviour, with which I thought we agreed?

[The Attorney General]

There is very little doubt that I have fundamentally abrogated my Trappist vows this morning. My right hon. and learned Friend makes the crucial point that there are real human rights abuses in the world today, and this country should stand four-square against those abuses. We should do so regardless of what international convention we may be part of and regardless of what Act we have passed. We should make that position clear, as I have no doubt responsible Governments in this country will do, now and in the future. It is important that the Foreign Office and, indeed, all parts of Government do their part to enhance human rights here and abroad.

Serious Crime Bill [Lords]

Lord Garnier Excerpts

Monday 23rd February 2015 Commons Chamber

[The Solicitor-General]

I thank my hon. Friend for the work that he has done in ensuring that extraterritorial jurisdiction has been applied to a range of sexual offences. In a nutshell, our view is that the case for applying extraterritorial jurisdiction to the possession of paedophile manuals has not been made out. We do not expect it to be generally applicable to that type of offence. We think it far more relevant to an offence of communication, given that communications no longer respect national borders, but can take place throughout the world through the internet and social media.

I was explaining the context in which we considered the issue of extraterritorial jurisdiction. It was in the light of speeches made by my hon. Friend the Member for Mole Valley (Sir Paul Beresford) and the hon. Member for Feltham and Heston (Seema Malhotra) that we reconsidered the issue, and concluded that it should be extended to the offence of sexual communication. Amendment 10 gives effect to that.

I hope that the House will welcome these important amendments. I look forward to hearing from other Members who have tabled amendments in this group, and I will respond to them as best I can when I wind up the debate.

[Sir Edward Garnier (Harborough) (Con)]

During our debates on the Bill, I have been drawing to Ministers’ attention the exploitation of adults—not elderly adults who cannot help themselves through old age, but young adults—by quacks and bogus counsellors. I rather hoped that the Solicitor-General and other members of the Government would address that issue. I see that the Under-Secretary of State for the Home Department, my hon. Friend the Member for Staffordshire Moorlands (Karen Bradley), is present. She has experienced the distinct displeasure of having to listen to me going on about this, but I will continue to go on about it until a decision is made. Will the Solicitor-General update me on the Government’s thinking about the exploitation of vulnerable adults who are brainwashed by those quacks and bogus counsellors, to their emotional, psychological and financial disadvantage?

[The Solicitor-General]

I understand that the Government are still considering that issue. The definition of “vulnerable” may, of course, be something of a vexed question. It has tended to apply to adults with learning difficulties, but I understand my hon. and learned Friend to be referring to it in the wider context in which people are brainwashed or duped by cults and other organisations. It is not a straightforward issue, as I know he understands, but the Government are giving consideration to it, so I am grateful to him for raising it.

With those remarks, I will draw my speech to a close.

--- Later in debate ---

[Mrs Gillan]

Mandate Now’s understanding is that such a situation would not be covered. If abuse occurs outside one of the regulated activities, but is brought to the attention of someone involved in a regulated activity, there appears from the drafting of subsection (1)(c) to be a possibility that the abuse would not be a mandatorily reportable incident.

Subsection (1)(c) would require that a person

“becomes aware that a child has been harmed”.

That requirement is problematic. So often with sexual abuse, it is very difficult to suspect it, let alone to know about it. Mandate Now’s challenge to the proposal from the National Society for the Prevention of Cruelty to Children is absolutely right. A law that depends on somebody being “aware” is drafted in a dangerously vague way. It will not catch most cases. The hon. Lady should therefore consider using the phrase that a person must act on “reasonable grounds of suspicion”. Such a change would improve the drafting of her new clause 17.

Similarly, the exemption in subsection (2)(a) permitting undefined circumstances as a reason not to refer an incident for independent assessment totally undermines the concept of mandatory reporting. When might it be in the interests of a child to be harmed and for those who know or suspect to do nothing about it? Such a situation needs to be made explicit.

Subsection (2)(b) is almost a facsimile of the current and porous position. In complying with current non-mandatory reporting clauses in institutional child protection procedures, personal liability seems to be avoided. The proposal continues a failed narrative in which reporting to the local authority for independent assessment is reliant on what the person responsible for reporting believes. For example, if a member of staff refers a case to the head teacher as the designated person and nothing happens, because the head believes it is not in the child’s interests to refer it or follows the inadequate professional guidelines—as it happens, they are discretionary—then the new clause will produce no change. As Mandate Now has stated, the exceptions in subsection (2) undermine the already underpowered provisions in subsection (1).

As the hon. Lady will know, an earlier amendment on mandatory reporting was moved in the other place, but was withdrawn on an assurance from the Government that they would start a consultation on mandatory reporting. She and I know, as does the Solicitor-General, that the terms of reference for the consultation have not yet been drawn up.

We are approaching something called the general election, so there is purdah. I have a proposition to make to both Front Benchers: it would be good to work on this matter on a cross-party basis. It should not be a political subject, but something on which we agree. Rather than putting new clause 17 to a vote, it would be good if they met behind the Chair and agreed to the Government drawing up the terms of reference with the Opposition and publishing them as soon as possible during the period of purdah before the general election. In that way, all the victims and people relying on this place to improve the situation for our all future children, and to learn from the history faced by many of our constituents, would have a lot more confidence that we are doing our job correctly.

[Sir Edward Garnier]

In dealing with subsection (2) of new clause 17, my right hon. Friend alights on one of the problems. An awful lot of well-motivated proposals are brought forward in relation to such Bills, but her point demonstrates that we must be careful not to legislate without thinking very carefully about what is intended. It is not clear to me that having

“acted in the best interests of the child”

is demonstrated on the subjective basis of the person who believes they have so acted, or is to be tested against what a reasonable person believes from looking at how that person has acted. If we agree to the subsection without analysing that, we will get into trouble. I urge her to ask the two Front Benchers to talk about that if they meet behind the Speaker’s Chair.

--- Later in debate ---

[Karen Bradley]

If my hon. Friend does not mind, I will come back to those points when I have heard all his comments. I will respond to all his concerns together, if that is acceptable to him.

New clause 23 would create a new offence of throwing an article or substance into a prison without authorisation. It is designed to address the significant and increasing problem of the presence of new psychoactive substances in our prisons. In applying to any article or substance, the new offence will also capture wider threats to prison security and good order. It will add to the existing criminal offences in the Prison Act 1952, which make it an offence for a person to convey into a prison certain specified items, including controlled drugs, alcohol or mobile phones without authorisation. The maximum penalty for the new offence will be two years’ imprisonment, sending a clear message to would-be traffickers.

[Sir Edward Garnier]

What will the new clause add to what is already in law?

[Karen Bradley]

We feel that it is important to have the ability to deal with the problem in criminal law. We have identified it as a problem, and we want to ensure that we can deal with it.

Government amendment 1 does not require much explanation. It is a technical amendment to the provisions in part 4 of the Bill relating to the seizure and forfeiture of substances used as drug-cutting agents. It simply provides that in Scotland, applications to a sheriff under clauses 60, 61, 63 and 64 must be made by summary application, as distinct from other forms of application such as an initial writ or small claim.

I commend the Government amendments and new clauses to the House. I look forward to hearing what right hon. and hon. Members throughout the House have to say about their new clauses, and to responding to them.

--- Later in debate ---

The reason that there has been controversy, in relation to Metropolitan police actions in particular, is that the police sought to avoid abiding by PACE by using RIPA, thus avoiding openness, transparency and the ability of an individual journalist to contest a decision. Unless the Government introduce amendments that enable prior notification and a mechanism by which an application can be challenged, they will certainly not satisfy the journalists of the NUJ who have been working on this issue for so long, and neither will they satisfy European legislation. I would welcome information on the process from here on in, and on whether and how those issues will be addressed.

[Sir Edward Garnier]

It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell). I am sorry that he has been misdescribed as my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay) on the Annunciator. I do not think that either he or my hon. Friend has any doubt about who they are, and, having listened to the hon. Gentleman speak in the House for the past 20 or so years, I certainly have no doubt as to who he is. Had he been able to be here on time today, his ears would have been burning as the Minister and others praised him for his campaign on this matter. However, it is a pleasure to see him here now, even if he has been described as Stephen Barclay on the Annunciator.

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. Members do not need to get excited. One of the Annunciators is correct; the other is not working. However, I know what is going on, so we can proceed.

[Sir Edward Garnier]

As my father used to say, Madam Deputy Speaker, “There is no point in having two clocks if they both tell the same time.”

I want briefly to respond to what my hon. Friend the Member for North East Cambridgeshire said about his new clause 28. Having spent quite a lot of my time as a Government Law Officer and having subsequently taken an interest in financial crime, I was much taken by what he had to say. My only suggestion would be that, rather than limiting himself to a further 31 days, he should propose—

[Stephen Barclay]

It was proposed more to make a point.

[Sir Edward Garnier]

My hon. Friend is unnecessarily modest in his ambitions. Instead of proposing 31 days, he might have proposed any such other period as the court might think just in all the circumstances. The thrust of his argument is, however, unassailable and I wish him well with his discussions with the Government. New clause 28 makes a good deal of sense.

I am honoured to be a co-signatory to new clause 18, particularly having just heard the speech by my hon. Friend the Member for Esher and Walton (Mr Raab). He has experience not only as an international lawyer but as someone who has prosecuted in some pretty terrible cases dealing with crimes in the former Yugoslavia. When he speaks, we should listen, pay attention and follow what he has to say, and what he had to say tonight was unimpeachable. I stress, as he did, that if we are to exclude people—be they foreign nationals or, under the current legislation, our own nationals—we should know who they are. Secret justice is not justice.

The new clause contains a proposed new subsection that would allow the Secretary of State to defer publication of the name of the excluded person on particular grounds. I suggest that that proposal would deal with any problems that anyone might suggest the new clause could create. The reason he has never received a cogent answer to his questions to Ministers and officials is that there is not one, and he has highlighted that. The Government should therefore have a little think about what he had to say and what is contained in his new clause.

I would say only one thing about new clause 24, and I am sorry that the hon. Member for Hayes and Harlington probably will not agree with me on it, albeit that we are both pretty keen on the freedom of the press. The code of practice would be an altogether more attractive concept if I could actually read it and see what it said before this thing came into legislation. The Minister properly spoke about the time limits surrounding us as we move towards the general election in May, but I used to complain in opposition, I complained in government and I complain now that secondary legislation, statutory instruments and codes of practice are subsidiary rules that hang in locked boxes from legislative trees and are not a good thing. If we are to persuade people that this measure is a good thing, we should have sight of the code of practice as soon as possible. I know that Ministers never want to commit themselves to time schedules, but this is an example of where, before the general election and before this Bill becomes an Act, we should see the fruits of the consultation process and what the code of practice should look like.

Finally, and with a degree of diffidence, I wish to discuss new clause 23. When I intervened on the Minister to ask what offences the new clause would add to, I was not given an answer—well, I was given an answer, but not to the question I asked. I was not surprised by that, because I, like my hon. Friend the Member for Esher and Walton, suspect that there is not an answer. This is what I call an early-day motion new clause. It is what is called, “Government sending out a message.” Governments can send out messages, but they do that on television, on the radio and in the newspapers, and they get their spin doctors to do it; legislation is supposed to be clear, non-repetitive and able to be clearly understood by the prosecuting authorities, the police, the courts and those who might be tempted to commit the offence that the clause hopes to describe.

I assume that an offence of “Throwing articles into prisons” is intended to prevent or persuade people not to throw caches of drugs, razor blades, mobile telephones and other contraband over prison walls or into prison property—so far, so good. We all know that that is already a crime, not just under the Prison Act 1952, but under various other pieces of criminal legislation. To take a ludicrous example, if I were to throw a copy of the Prison Act 1952, as amended, over the walls of Gartree prison in my constituency, would I be caught by this? On the face of it I would and I would be liable, on indictment, to a term of imprisonment

“not exceeding two years or to a fine (or both)”.

Sadly, the magistrates court does not exist in Market Harborough any more and I would have to be carted all the way to Leicester to be, on summary conviction, imprisoned for up to 12 months or given a fine.

It appears from the new clause that if I were to throw not “The complete works of William Shakespeare”, because that is a heavy volume, but a Shakespeare play over the prison wall, I would be committing an offence. I went to 65 of the prisons in England and Wales when I was a shadow spokesman responsible for prisons in the period leading up to the 2010 election, but I never went into or came out of a prison, young offenders institution or secure training unit without being wholly aware of the notices on the gates setting out what it was unlawful to bring into those places. Even though it might be suggested that lobbing a benign article such as “The complete works of William Shakespeare” over the prison wall was something done with an overriding public interest or with some other legitimate excuse, I do wish we could stop passing legislation that already exists just because it feels like a good thing to do. If we are going to take up the time of Ministers and officials in drafting this sort of stuff, why do we not draft something useful like new clause 18, proposed by my hon. Friend the Member for Esher and Walton, and get that into legislation, rather than this sort of guff?

[Karen Bradley]

Given the time and the debates that I know are to follow, I shall endeavour to answer as many points as I can, but it is highly likely that I will be brief in my comments. I will, however, commit to write to right hon. and hon. Members should I fail to address specific points in this quick winding-up speech.

I did refer to the hon. Member for Hayes and Harlington (John McDonnell) and I hope he will have a look at that. He talked about the notification of journalists whose communications data are sought. It has never been the practice in this country for those whose communications data are sought to be notified, and we do not intend to depart from that. However, as he recognised, this matter will need to be dealt with in the next Parliament. We have today published a draft clause which provides for judicial authorisation in cases where communications data are sought for the purpose of determining a journalistic source. No doubt he will take the opportunity that future legislation will present to press his point again. I think we all agree that the solution we have before us today is not the perfect one, but we want to legislate in some way before the election and this is the most appropriate and perhaps only way we have of doing so.

The hon. Member for Kingston upon Hull North (Diana Johnson), the shadow Minister, asked why the Government did not seek to extend the scope of the Bill. We took advice from the Public Bill Office on whether it would be possible to extend the scope through an instruction and thereby enable a Government new clause to be brought forward to give fullest effect to the interception of communications commissioner recommendation. The Public Bill Office advised that the scope of the Bill could not be extended in that way. We tried, but, unfortunately, that was not possible.

My hon. Friend the Member for Cambridge (Dr Huppert) asked about the timing of the production orders. The code will put in place the requirement to use production orders in cases where communications data are sought for the purposes of determining a journalistic source. The shadow Minister, also asked about the detail of the code of practice. We will shortly publish a revised code of practice that takes account of both the consultation responses and the recommendations of the IOCC. It will contain more detail on the factors to be considered in cases involving journalistic sources.

My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) talked about the throwing of packages over the wall. I have to tell him that in 2014 approximately 250 cases of new psychoactive substances being thrown into prison were recorded, compared with just 36 cases the previous year. There has been a significant increase in that number and in minor disorder and assaults in prison over the past year, and increased NPS use has been linked to some of those incidents. New psychoactive substances are not currently controlled drugs, which is why they do not fall within the legislation we would normally use.

[Sir Edward Garnier]

rose—

[Karen Bradley]

I hope my hon. and learned Friend will not mind if I do not take an intervention from him at this stage, just so that I can ensure we get on to the next group.

New clause 18 was tabled by my hon. Friend the Member for Esher and Walton (Mr Raab) and we have discussed this point in Westminster Hall. He will be familiar with the tribunal decision to uphold the Home Office and Information Commissioner’s decision on the neither confirm nor deny response to a freedom of information request on information held by the Department. It is a long-standing policy of this Government not to disclose the details of individual immigration cases, including in respect of those excluded from the UK. New clause 18 would have serious implications for the security of our borders and therefore to the national security of the country.

--- Later in debate ---

[Ann Coffey]

As the hon. Gentleman will be aware, part of the new clause proposes a proper assessment of some of the issues surrounding this question. I hope that during the assessment we would get much better facts about what is and what is not happening.

Women are pregnant in very different circumstances, subject to different pressures—economic, familial and community—that can all influence a pregnant woman’s state of mind and her attitude to continuing her pregnancy. If there is no substantiated evidence that doctors are granting abortions on the grounds of gender alone, we might be dealing with a more complex issue, which is how wider community and cultural attitudes to girls and women affect the physical and mental health of the pregnant woman.

Therefore, before legislating we should examine the facts relating to this complex issue, because I am concerned that the insertion of the proposed statement might have the unwanted consequence of women who might otherwise have access to an abortion on the grounds of physical and mental welfare being denied a termination. New clause 25 would arrange for an assessment of the evidence of termination of pregnancy on the grounds of the sex of the foetus in England, Wales and Scotland to be published within six months of Royal Assent. Of course, included in that assessment should be the experiences of women who feel that they have been pressured to have their pregnancies terminated.

Like other hon. Members, I have received briefings from many organisations and groups on the issue, and they demonstrate its complexity. One group that is in favour of new clause 1 talked about a growing body of research comprising the experiences of women who have talked about having sex-selective abortions in the UK as well as abroad. It states:

“We know from experience that women are having sex-selective abortions in the UK, and we feel their experiences—which reflect a much wider problem—should be taken seriously before the situation worsens.”

Another group that is opposed to new clause 1 has said that it would

“have far reaching and unintended consequences for the very women it purports to protect.”

It talked about the need to locate the protection of women from sex-selective abortion within a safeguarding framework. It states:

“There is a need to examine the issue alongside other forms of gender discrimination that impact on the practice, including the practice of dowry, domestic violence and honour based violence.”

It therefore calls for a wide-ranging inquiry, including on available support services.

[Sir Edward Garnier]

The arguments that the hon. Lady is making are those that I have read and that have persuaded me against supporting new clause 1, which I had originally intended to do when it was first mooted. I am persuaded that the real difficulty we face is getting evidence to court, and nothing that my hon. Friend the Member for Congleton (Fiona Bruce) has said will improve the quality of the evidence. I horribly disapprove—

[Madam Deputy Speaker (Dame Dawn Primarolo)]

Order. This is not an opportunity for the hon. and learned Gentleman to make a speech. This debate must end at 9 o’clock and many Members wish to speak, so interventions must be brief. I think that we have the gist of what he was saying—

[Sir Edward Garnier]

rose—

[Madam Deputy Speaker]

No, I think that we have the gist. Thank you.

Oral Answers to Questions

Lord Garnier Excerpts

Tuesday 10th February 2015 Commons Chamber

[The Attorney-General]

The hon. Lady is right to refer to the fact that there are different kinds of fraud, which are dealt with in different ways in our system. The Serious Fraud Office, which falls within the ambit of the Law Officers’ superintendence, deals with the most exceptionally complex cases of fraud. To answer her question directly, in this financial year the Serious Fraud Office has recovered financial orders of £10.7 million. It is right to point out also that the way in which the Serious Fraud Office is funded is unusual. It relies on some core funding and also on what is called blockbuster funding for unanticipated, large and complex cases. I think that that is the right way to do it.

[Sir Edward Garnier (Harborough) (Con)]

Will my right hon. and learned Friend confirm that the invitation from some to subsume the Serious Fraud Office into the National Crime Agency is not one that he will accede to?

[The Attorney-General]

There is huge value always in looking at the way in which Government agencies do their business and in finding efficiencies and changes if it is beneficial to do so, but I think the Roskill model on which the Serious Fraud Office is based—that is, the combination of lawyers, investigators, prosecutors, accountants and the like, all in multidisciplinary teams—is a sensible model, and it is delivering effective results.

RSPCA (Prosecutions)

Lord Garnier Excerpts

Tuesday 29th January 2013 Westminster Hall

[Sir Edward Garnier (Harborough) (Con)]

I congratulate my hon. Friend the Member for Carmarthen West and South Pembrokeshire (Simon Hart) on securing this debate. He has done the House a service in doing so. Of course there are different views about all sorts of underlying issues; the hon. Member for Derby North (Chris Williamson) demonstrated that from the outset. He was outed by my hon. Friend as a member of the League Against Cruel Sports. I had not the slightest idea who he was or what his membership consisted of, but I am delighted that he called in to see how we get on. That said, we would be naive if we did not think that the underlying current of debate about hunting infects some of the views expressed in this debate, although it is specifically about the RSPCA’s role as a prosecutor, which is what I will do my best to concentrate on.

My hon. Friend also told us that the RSPCA is a prolific private prosecutor, and the statistics tend to support that allegation; more than 2,000 private prosecutions were brought in 2012. However, the problem that the RSPCA faces is the public perception, whether true or false, that it has become a political prosecutor.

[Paul Flynn]

Only amid Daily Telegraph readers.

[Sir Edward Garnier]

I suspect that the hon. Gentleman reads The Daily Telegraph more often than I do, but there we are; I am sure he enjoys doing so.

I want to make it clear that as a Member of Parliament, a private citizen and a former Law Officer, I have no objection in principle to private prosecutions. Equally, however, Parliament has controlled in one way or another private citizens’ ability to take private prosecutions. I think the most recent example—my right hon. and learned Friend the Attorney-General will correct me—was the alteration in how prosecutions may be brought for the international reach of war crimes. I do not have the detail in my head right now, but I think that the situation has been altered to require that the Director of Public Prosecutions take over that sort of prosecution. We should not shy away from alterations to the rules relating to private prosecutions.

[Simon Danczuk]

The hon. and learned Gentleman will accept that the Law Commission considered the issue of private prosecutors in 1998 and found that adequate safeguards were in place. That was relatively recent. Does it not explain the situation? Everything is okay and should continue as it is.

[Sir Edward Garnier]

That is rather complacent. The whole point of being a Member of Parliament is to express one’s view on the basis of indirect or direct knowledge. Yes, the Law Commission considered the principle of private prosecutions not very long ago, but that does not prevent me from having a different view about particular types of private prosecution, and I am about to express it.

We must be watchful of the ability of the citizen—by “citizen” I mean either a corporate organisation, such as a charity, or an individual—to convert a legitimate public interest activity, namely the bringing of a prosecution in an appropriate case, into an arm of a political campaign. We all have different views about particular public issues—that is why we are elected for our separate parties—but we must be careful that the prosecuting system does not allow itself to become an arm of any one political campaign or a number of campaigns. That is the whole point of having a Crown Prosecution Service.

Certainly during my time in government, the Crown Prosecution Service subsumed the prosecuting wing of the Department for Environment, Food and Rural Affairs. Within DEFRA, there is a group of prosecutors who take on animal welfare cases, among other things, that were previously dealt with by Ministry of Agriculture, Fisheries and Food prosecutors. That subsection of DEFRA has now moved into the Crown Prosecution Service, which seems a sensible place for those people to carry out their work.

We must be careful. Although we do not wish all private prosecutions to be brought to an end, we are entitled to issue a warning to the RSPCA that if that sort of conduct—that is, the prosecutions referred to by the hon. Member for Derby North and others, in which the costs of £300,000-plus incurred were described by the judge as quite staggering—

[Chris Williamson]

I refer the hon. and learned Gentleman to a letter from the Charity Commission dated yesterday and stating that

“the Commission does not consider that the trustees have breached their duty of prudence in the case of this prosecution”—

that is, the Heythrop hunt. Does he not therefore agree that the RSPCA was perfectly within its rights to prosecute the Heythrop hunt, and is doing a sterling job ensuring that animal abusers are brought to justice?

[Sir Edward Garnier]

Of course the RSPCA as presently constituted was within its rights to do whatever it thought appropriate in that particular case. Whether it was wise to do so is another matter. It seems to me that if it continues to prosecute at such huge expense in such a disproportionate way, it will be open to public criticism. It cannot do something of that nature in public—that is, prosecute suspected criminals—without expecting to be criticised either by the judge, as it was, or by Members of Parliament, or by contributors to The Daily Telegraph or even The Guardian, or by ordinary members of the public.

[Angela Smith]

Will the hon. and learned Gentleman not acknowledge, however, that the prosecution costs in the case that he referred to were so large mainly because those prosecuted resisted the charges for so long before deciding in the end to plead guilty? Could the costs not have been reduced significantly if those prosecuted had done the right thing?

[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.

[Chris Williamson]

Upholds the law.

[Sir Edward Garnier]

The hon. Gentleman, whose constituency I do not know, but who is a member of the league, mumbles that it should uphold the law. Of course, it should. Nobody doubts that we should uphold the law. My central point is that it must be done dispassionately, proportionately and without turning a charity into a weapon of political campaign.

Assisted Suicide

Lord Garnier Excerpts

Tuesday 27th March 2012 Commons Chamber

[The Solicitor-General (Mr Edward Garnier)]

I begin by congratulating my hon. Friend the Member for Croydon South (Richard Ottaway) on initiating this debate. His motion and the amendments tabled to it reveal not so much a political issue as a legal and an ethical or moral question, but either way it is here in Parliament, a place that must be at the very centre of our country’s political deliberations, that we should debate these questions and shape the laws that provide the background to and the boundaries of the criminal law.

Parliament makes our laws and has a vital role when the courts can no longer develop or reveal the common law. When a Government take the initiative to change the law, when Parliament on its own initiative decides to change the law or when the judges in our higher courts can no longer develop the common law, we come here, to Parliament, to deliberate on what the law should be and, where appropriate, to make the necessary changes to our law.

Let me make a few preliminary points. First, it is the position of the Government that the substantive law on assisted suicide is a matter of conscience and not a matter of party political controversy. If the House divides today, right hon. and hon. Members on the Government Benches will vote—or abstain—as their conscience dictates and not in response to the advice of the Government Whips. I dare say the same applies on the Opposition Benches.

Secondly, I acknowledge the variety of views held on assisted suicide, euthanasia, and the care of the terminally ill, and quite understand that many will use this debate to express their opinion on matters that may be outside the strict confines of the DPP’s guidelines on assisted suicide prosecutions. I do not intend to express any personal views this afternoon. Rather, I shall make some dispassionate points about the role of the DPP and of prosecutors under his leadership and about the law on assisted suicide.

Thirdly, as a Law Officer, I want to emphasise the importance of the independence of prosecutors and the undesirability of statutory guidelines for prosecutors in any area of law, not least this one. Fourthly, I repeat what I said a moment ago—that ultimately Parliament is supreme and may legislate in this area if it wishes to do so. Fifthly, I will briefly outline the Government’s strategy for end-of-life care. A good many right hon. and hon. Members from all parts of the House have added their names to the amendment tabled by my hon. Friend the Member for Congleton (Fiona Bruce) to encourage the development of specialist palliative care and hospice provision.

No doubt every Member of Parliament knows of a hospice that is deserving of particular praise for the work its staff do in bringing care and sensitivity to the dying and the bereaved, and of doctors and other medical staff who specialise in palliative care. In Leicestershire we are fortunate to have the LOROS hospice for adults and the Rainbows hospice for children, both of which do so much to help their patients and the families, and I cannot commend them highly enough.

Let me now turn to the Suicide Act 1961. Until that Act was passed, suicide, and thus attempted suicide, were crimes. As late as the 1950s, as my hon. Friend the Member for Croydon South told us, a few people who had failed in their attempt to commit suicide were imprisoned. The 1961 Act decriminalised the act of suicide, but section 2 of the Act made it an offence to assist the suicide or attempted suicide of another person. It is, therefore, a highly unusual offence. I cannot think of another example where it is a crime to assist someone in doing something which is not itself a crime, but given that assisting another person to commit suicide is an area potentially open to a good deal of abuse, it was thought right to make it a criminal offence.

[Dame Joan Ruddock]

I am grateful to the Minister. I want to take him up on that point, because he has made the seminal point that this is a very unusual—perhaps unique—circumstance, in which assisting is a criminal offence, but suicide is not an offence. Because it is such an unusual case, it may be reasonable for the Government to consult on whether the guidelines should go into statute.

[The Solicitor-General]

I listened to the right hon. Lady’s speech and although I understood it, I am not convinced by her argument. None the less, she is perfectly entitled to make it.

Assisting or encouraging suicide is an offence and the maximum penalty for it is 14 years. It should not be thought that the law is not clear. We are talking about the application of the law when it comes to a decision about whether or not to prosecute. Those are discrete issues.

It cannot be acceptable to permit people to encourage others to kill themselves. Most often the people concerned would know each other, but the growth in suicide websites means that the person doing the encouraging could well be wholly unknown to, and not even present with, the person being assisted or encouraged to kill himself. To clarify the position the Coroners and Justice Act 2009 updated section 2 of the 1961 Act. That change was made amid growing concern about misuse of the internet to promote suicide and suicide methods, and to reassure the public that the internet was not outside the law. It is now clear in that 2009 Act that it is not necessary for a person committing the offence of assisted suicide to know the person whom he is encouraging to commit suicide, or even to be able to identify him. The change to section 2 came about via the Coroners and Justice Act, and any further changes to the law must, I suggest, be a matter for Parliament to decide.

Although today’s motion does not call for a change in the substantive law, and the amendment tabled by the right hon. Member for Lewisham, Deptford (Dame Joan Ruddock) calls for the DPP’s guidance to be put on a statutory basis—no doubt following consultation, but I think I can paraphrase in that acceptable way—she does not ask for a change in the statute itself. I have no doubt that some may suggest during this debate that there should be a change in the criminal law relating to assisting or encouraging suicide. I do not advocate a change in the law, nor do I think it sensible to place the DPP’s guidance on a statutory footing.

[Alun Michael (Cardiff South and Penarth) (Lab/Co-op)]

The Solicitor-General has come to a point that concerns me. Does he agree that passing the amendment would appear to be doing something that is very close to changing the law, and it would be a pity to give that impression?

[The Solicitor-General]

I think that I am entitled to look at the amendment proposed by the right hon. Lady on its face value, and it proposes to change the current arrangements. It proposes that there should be a consultation as to whether the policy and the guidelines should be placed on a statutory footing. However, I think that I am entitled to infer from that that those who support that aspect of the amendment wish the DPP’s guidelines to be on a statutory footing. I disagree with that. I do not think that that is sensible.

[Ian Swales (Redcar) (LD)]

Can the Solicitor-General think of another example where we expect people to commit a crime knowingly, and only find out later whether they will be prosecuted or not?

[The Solicitor-General]

I do not think that I will answer that question, because, to be honest, I am not entirely sure I understand it. I apologise if my failure to understand is entirely my own fault.

The DPP’s guidance relates to the framework within which prosecutors apply the law as it currently stands, and I suggest that that is a framework that should remain in place as it currently stands. As Law Officers, it is for the Attorney-General and for me to superintend the Crown Prosecution Service and to account to this House for its activities and performance, but prosecutors have always had discretion to consider what the public interest might be when they bring criminal proceedings, and it is for prosecutors to decide how to exercise that discretion.

That is set out in the code for Crown prosecutors, the document issued by the DPP that provides guidance on the principles that prosecutors should apply when making decisions on whether to prosecute in any particular case. The test requires—I paraphrase—the prosecutor to be satisfied that there is sufficient evidence to convict and that it would be in the public interest to prosecute. Sometimes a statute requires that either the DPP or the Attorney-General—for these purposes that means the Solicitor-General as well—must consent to the prosecution, and in the case of a prosecution under the Suicide Act 1961, as amended by the Coroners and Justice Act 2009, it is the DPP who has to consent to the bringing of criminal proceedings.

However, it has been clear for many years that it is not in every case where the evidential test is passed that a prosecution must be advanced. In 1951 in the House, the then Attorney-General, Sir Hartley Shawcross, said:

“It has never been the rule in this country—I hope it never will be—that suspected criminal offences must automatically be the subject of prosecution.”—[Official Report, 29 January 1951; Vol. 483, c. 681.]

Those words underscore the essential independence of our prosecutors from Government, from Parliament, from newspapers and their readers, from religious leaders, from the expert and ignorant, and from all who would seek to interfere in their discretion and independence. As Law Officers, the Attorney-General and I support and protect the independence of prosecutors in their decision making. With that in mind, I will turn to the DPP’s policy document.

[Guy Opperman (Hexham) (Con)]

I make a declaration as a former criminal prosecutor. It was frequently said that we were often consulted but often ignored. In these particular circumstances, given that there may be a presiding view of the Government, what is to be lost by having a consultation and finding out what is the view of the people?

[The Solicitor-General]

I suppose that it is a matter of attitude. I happen to think that the Government were elected to take decisions. I have expressed my view on the matter. No damage will be done to the constitution, and the world will not come to an end, if we consult on this issue. I happen to be of the view that we do not need to put this policy into statutory form. It will create a form of sclerosis and lead to all sorts of problems that may not be intended. Therefore the better position is to leave the thing as it is. If my hon. Friend, either as a Member of Parliament or as a private citizen, be he a former prosecutor or a former defender, wishes to advocate the consultation process, he should go ahead. I will not stop him. I will just simply not support him.

[Steve Baker (Wycombe) (Con)]

Whereas the guidance at paragraph 6 is clear that it does not decriminalise the offence, if the remainder of the guidance were put in statute, would that not therefore decriminalise assisted suicide, and is not that the crucial difference?

[The Solicitor-General]

There is a growing confusion—perhaps it was there already—between the guidelines, which are the DPP’s policy statement on when it is and is not thought appropriate to prosecute and the factors that he will consider, and the substantive law that is set out in section 2 of the Suicide Act. The two are quite different. As I mentioned to the right hon. Lady, it is a criminal offence to encourage or assist the suicide of another, and if people are prosecuted and convicted, they are very likely to receive a prison sentence measured in years, the maximum being 14 years. But the DPP’s guidelines are not the law. They are a public document that informs us how it is that he considers whether or not it is right to bring a prosecution in any given case.

I agree with my hon. Friend the Member for Croydon South in commending the DPP for producing a document that is notable for both its clarity and its compassion. The House is fully entitled to consider the way the criminal law it enacts is applied in practice, but I hope that by considering the guidelines, the House will not only commend them, but also note that they are based on the principle of independent prosecutors exercising their discretion in their decision making, which, ultimately, must be in all our interests.

[Dame Joan Ruddock]

I am really grateful to the Solicitor-General for giving way. Will he just acknowledge that a future DPP could overturn the guidelines, and does he think that that would acceptable?

[The Solicitor-General]

If a future DPP overturned the guidelines, he would be judicially reviewed for behaving in a rather whimsical way. I also suspect that the right hon. Lady would be one of the first to stand up in the House and censor him for doing so. I can assure her that placing things in statute will not assist her cause. She and I share the view that the DPP’s guidelines are a good thing. Why not leave them where they are and let them remain a good thing?

As I said, I hope that by considering the guidelines the House will not only commend them but also note that they are based on the principle of independent prosecutors exercising their discretion in their decision making, which, ultimately, is in all our interests. The guidelines inform others how he will exercise his discretion, but as with any guidance or policy issued by the DPP, it is subservient to the law of Parliament and the decisions of the higher courts. If the law changes, any relevant prosecutor’s guidance must also change. It will change the more flexibly if it is not ossified in statute.

I make a trite point, but the law cannot do everything. We need flexibility in its application, and to be able to apply the law and to make decisions about whether or not to prosecute on the facts and the surrounding circumstances of each case and on a case-by-case basis. In this area of law, perhaps almost if not exclusively above all others, we need to approach the question of whether to prosecute with sensitivity and with care. Indeed, the High Court, in its judgment on 29 October 2008 in the Purdy case—the very action that, once it had been considered by the House of Lords in 2009, gave rise to the guidelines—said that the nature of the offence created by section 2(1) of the Suicide Act is such that

“the variety of facts which may give rise to the commission of that offence, and therefore which may result in a person being prosecuted, is almost infinite”.

The section 2 offence is very widely drawn. It covers all situations and creates no exceptions, which is why, I suggest, the DPP’s consent to a prosecution is so necessary, and why the House of Lords directed the DPP to publish the policy that we now have before us.

Guidelines or a policy statement are not required in every criminal case, but I invite the House to consider that such guidelines are best issued by prosecutors and for prosecutors, although available for public inspection and comment. Quite apart from the propriety of guidelines for prosecutors being a matter for prosecutors, there are some practical considerations to guidelines remaining on a non-statutory basis. Surely to place them in statute would be to attempt to confine the infinite. Policies and guidance are there to provide practical assistance to prosecutors on how particular categories of cases should be approached and the internal processes that should be followed. Therefore, there needs to be a certain amount of flexibility, not least because, as case law develops and public opinion and our collective moral view alter, the law changes and these guidelines and the policies will need to change in response, often quickly.

I therefore urge the House, as a matter of good practice, to conclude that the current flexible and—I admit—pragmatic approach should be retained. That said, we are all entitled, inside and outside the House, to comment on the guidelines themselves or on a decision to prosecute or not prosecute in any given case, subject to any temporary constraints imposed by the law of contempt and defamation. We should not build into the process a sclerotic arrangement that will not improve the application of the law from year to year.

The CPS has published a number of policies and guidance documents over the years. They are available on its website and are there to help the public understand how decisions are taken by prosecutors. During the past two years or so, that has included policies on prosecuting human trafficking cases, public protest cases and cases about perverting the course of justice when victims in rape and domestic violence cases make false retractions. Should these policies be codified, too? Should they be placed on a statutory footing? As my noble Friend Baroness Berridge said in the other place when this matter was debated last month:

“It is imperative that DPP policy and decisions are free from, and seen to be free from, Government interference…If the House were asking how the Government are assessing the application of DPP policy for prosecutions in cases of phone-hacking, constitutional alarm bells would, I believe, have gone off immediately.”—[Official Report, House of Lords, 13 February 2012; Vol. 735, c. 629.]

I agree with her.

My hon. Friend the Member for Croydon South said that the application of the existing law and, by implication, the application of the guidelines in this area is a pressing issue. It is not so much the application of the existing law that is the issue, but what the substance of the existing law is. I leave others to decide how pressing the issue might be. At the risk of repeating myself, I will say that if Parliament wishes to change the law in this area, that is a matter for Parliament, but we should not confuse the way prosecutors apply the law with what the law is or should be.

As I draw my remarks to a close, I will briefly address the amendment tabled by my hon. Friend the Member for Congleton and supported by a great many right hon. and hon. Members. She is encouraging—I assume—the Government to develop specialist palliative care and hospice provision further and, in responding, I transmogrify my role as a desiccated, boring and apolitical Law Officer to that of a thoroughly exciting political Minister.

The Government recognise that many people, their families and carers do not receive the quality of end-of-life care that we would all wish to receive. Hardly a month passes without our reading in the national or local press or hearing in the broadcast media of some terrible episode of personal suffering endured by an elderly person at the end of their life. Every such story demands of us that something more should be done to ensure that the care of the terminally ill, no matter what age they are, should be improved. The Government are committed to developing and supporting end-of-life and palliative care services to ensure that the care people receive, whatever their diagnosis, is compassionate, appropriate, of good quality and permits the exercise of choice by patients. That choice is, of course, within the current legal framework. For many, that means being able to choose to be cared for and to die at home, or in a care home when that has become someone’s home. However, we know that most people die in hospital, the place where they would least prefer to be.

Although realistically many people will continue to die in hospital, we know that more people could be cared for and die at home. We want services to be set up to help people make that choice, and commissioners and providers need to ensure that the right services are available in the right places and at the right time. Much needs to be done to make that happen, and we will review progress in 2013 to see how close we are to being able to offer that choice. It is very much part of the work to implement the Department of Health’s end-of-life care strategy. Published in 2008 under the previous Government, the strategy received cross-party support. It aims to improve care for people approaching the end of life, whatever their diagnosis and wherever they are, including enabling more people to be cared for and to die at home.

[Fiona Bruce]

I am extremely pleased to hear my hon. and learned Friend say that. It will build on what is a very high standard of care in many parts of the country, as I have already mentioned. The point I was seeking to emphasis, in particular, was that evidence shows that where there is a high standard of palliative and end-of-life care, there are fewer requests for assisted suicide. That is why it is so important that we focus on supporting and developing further end-of-life care specialism and treatment in this country.

--- Later in debate ---

[The Solicitor-General]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I take it that the Solicitor-General is coming to the end of his speech, because we are up against time and many Back Benchers wish to speak.

[The Solicitor-General]

With your permission, Mr Deputy Speaker, I will avoid answering my hon. Friend’s question in order to save time.

If we are to continue to provide care where and how people want it, to expand this work into the community and to care for people with conditions other than cancer, hospices and other providers of palliative care need the right support and the right funding. We need a funding system that can last, that provides stability and security in the long term and that actively encourages community-based palliative care so that people can stay at home or in a care home as they wish. Of course, this has to be affordable within the constraints of the current financial climate.

The independent palliative care funding review looked at options to ensure that the funding of hospices and other palliative care providers is fair and covers both adult and children’s services. When it reported last summer, it recommended that a number of pilots be set up to collect data so it could refine its proposals, because of the lack of reliable data currently available. Last week, my right hon. Friend the Secretary of State for Health announced the seven adult and one children’s palliative care funding pilots selected for this important work. They will start in April and run for two years, and our aim is to have a new funding system in place by 2015, a year sooner than the palliative care funding review proposed.

I did not wish to be rude to my hon. Friend the Member for Congleton. I do not know whether there is a correlation or a causative link between the two points she drew to our attention in her intervention. None the less, if the matter comes to a Division, I urge the House to accept the motion moved by my hon. Friend the Member for Croydon South, to be deeply sceptical about the amendment tabled by the right hon. Member for Lewisham, Deptford and to look with interest and care on the matter proposed by my hon. Friend the Member for Congleton.

Sentencing (Cameron Ross)

Lord Garnier Excerpts

Thursday 8th September 2011 Commons Chamber

[The Solicitor-General (Mr Edward Garnier)]

I begin by congratulating the hon. Member for Hartlepool (Mr Wright) on initiating the debate so that we can discuss these important and highly sensitive issues. He has, very properly, brought his constituents’ concerns to the Floor of the House. In responding, I will say something about my role as Solicitor-General with regard to both unduly lenient sentences in general and this case in particular. He should not be in the least concerned about causing me embarrassment. If embarrassment is warranted, it is his right and duty to embarrass me. I am accountable to Parliament and willingly appear to answer for my role as Solicitor-General. He should have no inhibitions in that regard. Indeed, he should be praised for vigorously pursuing the interests of his constituents—mother and son—with such attention.

Before I respond to the points the hon. Gentleman has outlined, let me focus on the horrific crime with which we are concerned. As he said, it was an offence contrary to section 18 of the Offences Against the Person Act 1861, which deals with one of the most serious non-fatal offences of violence on the criminal statute book. There is no doubt that the offence committed against Daryl Stevens last April caused great physical and emotional suffering. The victim and his family live with the consequences of the crime day in, day out, and as the hon. Gentleman has said, the impact on their daily lives has been considerable. Nothing I said or wrote earlier in the summer, either to the hon. Gentleman or to his constituent, was intended to underestimate the impact upon Daryl Stevens or his mother. I do not think it did.

On the day of the attack, Daryl Stevens, then aged 17, was doing what many young people do: spending time with friends and having a good time. He was in Chicago’s Pizzeria in Hartlepool about to order some food when he was viciously attacked in public by a drunk who glassed him—he struck him several times in the head and neck with a broken glass bottle. The attack caused a 3-cm laceration to the back of his scalp, a 3-cm laceration to his left cheek and a 2-cm penetrating wound to the back of his neck. A fragment of glass, among many others, was found very close to his spinal cord. The culprit, Cameron Ross, was later caught and, after pleading guilty, sentenced to three years’ detention in a young offenders institution. The sentence took into account the timing of his plea and the mitigation advanced on his behalf, to which I shall return.

Nothing I say today, and nothing I have written to the hon. Gentleman or his constituent, can eradicate the hurt caused by this dreadful offence, but I hope that what I say today will go some way towards clarifying my role in relation to the case and the way the Attorney-General and I exercise our powers on unduly lenient sentences generally. I understand that the senior prosecutor from the Crown Prosecution Service with responsibility for the case met Mrs Stevens in late July to explain the prosecution process and discuss matters further. My impression was that she left that meeting satisfied, but the hon. Gentleman clearly has a different assessment. Unfortunately, neither of us was at that meeting, but none the less there is an issue that we unfortunately cannot resolve. But, the meeting was held, and at least it indicates a willingness on behalf of the Crown Prosecution Service to make sure that victims and families are treated properly following hideous crimes such as this.

Of course, many people may consider the sentence of three years’ detention to be too low, and other judges might have given a longer sentence while others might not, but sentencing is an independent judicial function, carried out by judges and magistrates within a framework set by this House, for which the Justice Secretary has responsibility within the Government. That framework provides for statutory sentencing guidelines to be issued and followed by the courts, and for sentences for certain offences that the Law Officers consider to be “unduly lenient” to be referred to the Court of Appeal to consider whether they should be increased.

The offences within the unduly lenient sentence scheme are limited by statute and, unsurprisingly, are the most serious ones, including grievous bodily harm—commonly called GBH—under section 18 of the 1861 Act. We must also refer cases within 28 days of the sentence. That is the statutory time limit, and if it is to be extended, it will need the Justice Secretary to amend legislation, but, in my experience and that of my officials, Treasury counsel and the Crown Prosecution Service, that period provides plenty of time for the case to be fully thought about, as it was in this particular instance.

The Attorney-General and I referred about 100 cases to the Court of Appeal last year. We appear in court ourselves to argue them on occasion, and indeed we have done so on more occasions than our recent predecessors, such is our interest in the matter that the hon. Gentleman has brought before the House.

It is, however, the Court of Appeal—not we as Law Officers—that decides what constitutes “unduly lenient”, and it has stressed on many occasions that increasing a sentence already passed on an offender is an exceptional remedy. Sentences will not be increased unless they are significantly below what the judge should have passed. In the Attorney-General’s reference No. 4 of 1989, the Court of Appeal said:

“A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate”.

As Law Officers, the Attorney-General and I exercise our own discretion in accordance with the way in which the law has been applied by the Court of Appeal. The unduly lenient sentence regime is not simply a general right of appeal against a low sentence or an opportunity for the prosecution to have another bite at the cherry; it is an exceptional remedy for exceptional cases, and when we refer cases to the Court of Appeal, we do so not as political Ministers or politicians, but in our capacity as independent guardians of the public interest.

There is a further aspect to the unduly lenient sentence regime that I should mention. The Court of Appeal will review the sentence imposed only on the basis of the information available to the sentencing judge in the Crown court at the time. It will not take into account material that might be thought now to provide grounds for a sentence to be increased if it was not available to the sentencing judge at the time of the sentence. In accordance with those principles, I considered whether the sentence imposed on Cameron Ross was unduly lenient, and, as the hon. Gentleman knows, I concluded that it was not.

The relevant sentencing guideline—the Sentencing Guidelines Council’s definitive guideline on assault and offences against the person—provides four sentences ranges for this particular offence, reflecting different categories of seriousness. The sentencing judge, along with prosecution and defence counsel, considered that the appropriate sentencing range specified by the guidelines was four to six years’ custody, with a starting point after a contested trial of five years, and I agree that that sentencing range was the appropriate one.

The guidelines state that the types of assault offences that fall within the four to six-year range are as follows:

“Victim suffered a very serious injury or permanent disfigurement; or Pre-meditated wounding or GBH; or Other wounding or GBH involving the use of a weapon that came to hand at the scene.”

The offender in this case, Cameron Ross, had previous convictions and committed the offence while on licence. Those were aggravating factors. That said, he was young, being 18 years old at the time of the offence, and that was a factor that took the sentence towards the lower end of the sentencing range. In addition to detailing his antecedence, the pre-sentence report prepared by the probation service set out the offender’s personal mitigating factors, which the judge took into account. He will also have taken into account defence counsel’s submissions on Ross’s behalf.

As I wrote in my letter to the hon. Gentleman on 16 August, to which he referred,

“I understand from the transcript of the sentencing remarks that the judge did have Daryl’s statement and saw photographs of his injuries. In his statement Daryl reports exactly what he was told by doctors at the James Cook hospital. The judge will have been aware that doctors told him that he was lucky to be alive as glass was only one millimetre away from his spine, that the wound in his cheek was through to the bone and had just missed a nerve which may have left him paralysed on one side of his face, and that he would require a further operation to remove glass from his head.”

I went on to say that I noted from the hon. Gentleman’s letter that Mrs Stevens’ concerns related also to the fact that Cameron Ross had apparently breached his licence before committing the offence against her son, and that she believed that he

“should have been detained as a result of this earlier breach.”

The problem is that that issue is about how offenders suspected of a crime should be dealt with by the bailing court and is not a matter for the Court of Appeal, nor for me, through an unduly lenient reference. As I informed the hon. Gentleman, I also understand that Ross had not been convicted of these matters at the time when the sentence that we are concerned with was handed down, so they could not be taken into account.

Sentencing is an art, not a science. I know that from observing the process as a barrister over the past 35 or 40 years and as a Crown court recorder who, since 1998, has passed a good many sentences. It is the role of the judge to look at the aggravating and mitigating features of the offence and the offender, and to reach a conclusion that reflects the interests of justice in the case as regards the victims, the offender and society generally.

In this case, the sentencing judge considered that the appropriate sentence after a trial would have been four and a half years. The defendant had pleaded guilty at what the judge considered—not what I considered—to be the earliest available opportunity and so was awarded full credit for doing so via a discount of a third off his sentence, bringing the final figure to three years’ imprisonment. There is another debate to be had about what is the proper public policy behind discounts for early pleas, but that is not one that I can enter into today.

It is not my role as Solicitor-General simply to conclude that a higher sentence could have been imposed or that the sentence was lenient and could have been more severe, and that therefore it must be referred to the Court of Appeal. I have to be persuaded that the sentence was unduly lenient—I underline the word “unduly”. In this case, the sentence fell squarely within a proper application of the guidelines and for that reason I did not refer it to the Court of Appeal.

It is not always appropriate for this House to engage in a detailed discussion of the merits of an individual case, although our criminal justice system is of course as open to public criticism as any other area of public interest. As I said, the hon. Gentleman has quite properly advanced his concerns and those of his constituents about this case. I hope that I have explained the approach that I took and that I take, and that that is of some help to him. I appreciate that his constituent, the victim’s mother, was naturally distressed by what happened to her son and wanted quite properly to be assured that justice was done. However, in my view it would not have been fair to take the case to the Court of Appeal and thereby give her and her son false hope, only for them to be disappointed.

On the provision of information to Mrs Stevens, I am sorry that she did not get what the hon. Gentleman feels she should have got as quickly as she wanted. It was certainly not my intention to withhold information that ought to have been, and I hoped had been, candidly given to her. If she is still upset, I repeat my apology.

Towards the end of his remarks, the hon. Gentleman mentioned the point about the breach of licence, and I hope that I have provided an explanation in relation to that.

I conclude by saying that the hon. Gentleman has done his duty to his constituents and to this House, and I thank him for doing it. I hope that he will recognise that I, if perhaps with less enthusiasm than he might be prepared to accept, have done mine.

Question put and agreed to.

Ratcliffe-on-Soar Power Station

Lord Garnier Excerpts

Wednesday 13th July 2011 Written Statements

[The Solicitor-General (Mr Edward Garnier)]

On 18 April 2011, Keir Starmer QC, the Director of Public Prosecutions, announced that following a review by Clare Montgomery QC, the safety of the convictions of the individuals who protested at Ratcliffe-on-Soar power station, should be considered by the Court of Appeal as soon as possible.

During that review, the CPS had been conducting an internal investigation into its own handling of the case. However, in light of growing concerns about the non-disclosure of material relating to the activities of an undercover police officer in this case and, following discussion with the Attorney-General and myself, the DPP said last month that he would establish an independent inquiry conducted by a senior legal figure. The DPP has now confirmed that retired Court of Appeal judge. Sir Christopher Rose will conduct this inquiry.

The terms of reference have been agreed with Sir Christopher and are as follows:

The independent inquiry will examine and make findings in respect of the following matters:

a. Whether the CPS approach to charging in this case was right, bearing in mind the known existence of an undercover police officer in the operation.

b. Whether the CPS and prosecution counsel complied with their disclosure duties properly in relation to the known existence of an undercover police officer in this case.

c. Whether the CPS arrangements in place for handling the known existence of an undercover police officer, including arrangements between the police and the CPS, the CPS and counsel and the local prosecuting team and the national co-ordinator, were adequate and properly followed in this case.

d. Whether the CPS followed all relevant guidance and policy in relation to the known existence of an undercover police officer in this case.

The independent inquiry will also make such recommendations it feels appropriate in light of the examination and findings set out above, including, if appropriate, recommendations about CPS policy and/or guidance and CPS arrangements for handling cases involving undercover police officers.

The independent inquiry has been established by, and will report its findings and recommendations to the Director of Public Prosecutions.

Sir Christopher will have full access to all the available evidence and will work in tandem with the IPCC inquiry into this matter. Both organisations are committed to sharing all relevant information and arrangements are being made to ensure there is meaningful liaison between the two inquiries. Inevitably this work will take time but will be completed as soon as is practicable. The Director of Public Prosecutions intends to make public the findings and recommendations of the independent inquiry.

Cawston Park Hospital

Lord Garnier Excerpts

Monday 21st March 2011 Commons Chamber

[The Solicitor-General (Mr Edward Garnier)]

I will speak quickly, to get as much on the record as I possibly can in the short time available to me.

I congratulate my hon. Friend the Member for Wycombe (Steve Baker) on securing the debate and thank him for making it possible for my hon. Friend the Member for Norwich North (Miss Smith), who is with me here on the Treasury Bench but who, as a Government Whip, is prevented from speaking, to bring before the House a matter that directly affects one of her constituents, Mr Andrew Breeze.

The debate allows me to answer some important questions on behalf of the Crown Prosecution Service, for which the Attorney-General and I are accountable to this House. I should also confirm that the interest of my hon. Friend the Member for Wycombe in this matter is not just altruistic, although it is that as well. Mr Breeze’s brother lives in his constituency, so he has a family interest in the debate.

Andrew Breeze was one of two defendants charged in February 2008 with conspiracy to defraud NHS primary care trusts by charging them for what was called “extra care” for mental health patients at a private hospital, Cawston Park hospital in Norfolk, which was owned by a company in which the defendants had a significant interest. Those activities were said to have taken place in the two years before August 2006. It was alleged by the prosecution that the charges for extra care were criminally dishonest, because that extra care was not in fact provided.

The trial began in April 2009 but was halted in June 2009 when the judge at Ipswich Crown court intervened, resulting in the prosecution bringing the case to a halt by offering no evidence. Mr Breeze was then acquitted of all charges. At the conclusion of the case the judge said to Mr Breeze and his co-accused:

“You leave vindicated with your good name intact and your heads held high.”

I wish to make it clear beyond doubt that that acquittal means that Mr Breeze was, and remains, not guilty of the criminal charges brought against him. On behalf of the CPS, and as Solicitor-General, I associate myself without reservation with the words of the judge, but I go further and say that in so far as Mr Breeze was prosecuted as a consequence of what the CPS did or did not do, I want to place on record for all to see my apologies to him. It has become clear that regardless of whether it was proper to investigate the affairs of Cawston Park in the first place, the prosecution should never have got as far as it did.

I am accountable for the CPS, which was responsible for deciding whether to institute and continue the prosecution in this matter. The police were responsible for investigating the case on the basis of a complaint from NHS Counter Fraud, but not for deciding whether to prosecute. The prosecution in this case should never have reached the stage that it did, and I repeat, without restating verbatim, the judge’s words and my apology.

I should also like to apologise to Mr Breeze for the failure to respond to his letters of complaint sent to the CPS after the trial finished. Mr Breeze eventually felt that he had no option but to present himself in person at the CPS offices, because of the repeated failures to reply to him.

In response to his complaint, the CPS did––very late––conduct a thorough review. It was conducted by a senior lawyer at the CPS, Elizabeth Bailey, who had no prior involvement in the case. She concluded that, in her view, the case should not have resulted in criminal charges. I endorse her conclusions. She found that there was material available in the evidence that could be seen as pointing towards dishonesty, but equally that there were issues, which were known about at the point of charge, that undermined the strength of the case. I will come to those in a moment. Different lawyers can quite properly take different views on the merits of any given case. Elizabeth Bailey in this case believed that, even if the charging decision could be seen as appropriate at the outset, the case should none the less not have been allowed to proceed to trial. She apologised to Mr Breeze by letter dated 26 July 2010 on behalf of the CPS both for the prosecution and for the lack of response to Mr Breeze’s complaint.

My hon. Friend the Member for Wycombe complains that that letter leaves Mr Breeze’s reputation tarnished, whereas the judge in the case told Mr Breeze that he left the court with his reputation intact and his head held high. With respect, since it was a private letter, it cannot be said to have had any public effect and the judge’s words at the end of the trial in 2009 are what will have been publicly remembered. However, in so far as there is any doubt about Mr Breeze’s reputation, I trust that what I have said tonight will make the position abundantly clear.

I gather that Mr Breeze has been in touch separately with Norfolk constabulary, the Information Commissioner’s Office and NHS Counter Fraud. I understand that Norfolk constabulary undertook a systematic review of its investigation under terms of reference agreed by the Independent Police Complaints Commission. NHS Counter Fraud has also undertaken its own internal review.

My hon. Friend asked for an independent inquiry. From what I have said, it must follow that I accept that this case raises several concerns. It has, however, been examined both inside and outside the CPS, and I do not believe that another inquiry would reach any new conclusions. The CPS has accepted responsibility for its failings in this case and they are now publicly acknowledged.

The case was not straightforward. There were some 84 witnesses and around 23,000 pages of evidence. The charging decision was approved by the then director of the fraud prosecution service. Both the barristers acting for the prosecution endorsed the decision to proceed. Miss Bailey was asked to consider the case in accordance with the code for Crown prosecutors which is issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985. Her review of the evidence and the information that was available at the point of charge led to the following five conclusions.

First, there was in the hospital a lack of clarity about what the “extra care” charges were for. A better description might have been a “surcharge” for difficult-to-manage patients, but she commented, and I agree, that a lack of clarity is not necessarily indicative of fraud.

Secondly, several people, including Mr Breeze, his co-accused and other officers of the company were being sued by the board of the hospital. The other defendants in the civil action all later gave evidence for the prosecution. They had an interest in the outcome of the criminal case and, as Elizabeth Bailey found, that conflict should have been considered as a significant risk in the criminal case, but it was not. There should have been regular reviews as the case progressed.

Thirdly, in 2005 a due diligence report was prepared by PricewaterhouseCoopers on behalf of Lloyds TSB Development Capital Ltd, which was due to invest—