Henry Thorley and HMRC

David Gauke Excerpts

Thursday 18th July 2013 Commons Chamber

[The Exchequer Secretary to the Treasury (Mr David Gauke)]

I thank my hon. Friend the Member for Stone (Mr Cash) for his remarks, for securing this debate and for putting forward his constituent’s case with his characteristic eloquence. The case relates to the investigation and subsequent prosecution of one of his constituents by what was then Her Majesty’s Customs and Excise. His constituent and his advisers have approached my hon. Friend requesting a public apology for what they have described as a malicious prosecution by HMCE. I have great sympathy with his constituent for the worry and distress that the case has clearly caused both him and his family, and I hope this afternoon to offer reassurance that the case can be further investigated by Her Majesty’s Revenue and Customs. I shall return to that in a moment.

For reasons I shall explain shortly, however, HMRC does not old information about the case, other than that supplied by my hon. Friend in his correspondence and by his constituent.

[Mr Cash]

Is the Minister even remotely disputing what I have said?

[Mr Gauke]

I am not disputing any of the facts provided by my hon. Friend, but I hope he will allow me to explain the reasons why HMRC does not hold information about this case, other than what has been provided to it by him, and why that constrains what HMRC can say. I will also explain how we might be able to take this matter a little further forward.

Let me deal with the first point about why HMRC does not hold information. In line with the requirements of the Data Protection Act, HMRC must not hold personal data indefinitely, so the organisation regularly reviews and destroys or deletes information. For cases involving criminal investigation, the retention period varies depending on the outcome of the investigation. The default period is six years from the conclusion of the investigation, but when the investigation leads to a conviction, the retention period is the length of sentence imposed plus one year, or six years, whichever is the longer. When an investigation ends in conviction but that conviction is later overturned on appeal, as clearly occurred in this case, the retention period is six years from the Court of Appeal ruling. In the case of my hon. Friend’s constituent, the data relating to the investigation and prosecution would have been destroyed as early as 1986.

However, the Data Protection Act also requires that when someone makes a request for the release of information, the recipient of that request must make a thorough search to see whether it is held, even if the normal destruction date has passed. To that end, HMRC has carried out a department-wide check of all electronic systems and a targeted search of manual records. It also asked the Crown Prosecution Service to check its records to see whether it held anything relating to this constituent’s case. That check has revealed that no such records exist.

Further correspondence from my hon. Friend, enclosing correspondence from his constituent and addressed to the Chancellor of the Exchequer, was passed to HMRC to reply under normal Treasury procedure. That correspondence was dealt with under HMRC’s complaints procedure for ministerial correspondence. I should make it clear that HMRC of course welcomes complaints as an opportunity to apologise and put things right where it has made a mistake, and as a source of learning to make its services better for taxpayers in future.

[Mr Cash]

On the question of procedure, is my hon. Friend aware of the Cabinet Office’s 2005 guidelines on dealing with letters from Members of Parliament to Ministers, which set out very precisely what has to happen in relation to such letters and the manner in which such letters have to be handled under the Cabinet Office guidelines prescribed by the Prime Minister?

[Mr Gauke]

The Treasury is aware of the guidelines that apply to ministerial correspondence, and we seek to comply with them. Where operational matters are involved and it is more appropriate for HMRC to deal with them in order to provide as much information as possible and to deal with them as appropriately as possible, HMRC will respond to those letters. My hon. Friend has received a letter from me and from HMRC—indeed, he has received several items of correspondence—on this front.

Let me return to the procedure. Usually, HMRC has a two-stage complaints process, which seeks to deal with as many complaints as possible at the first review. At the end of that stage, the reply tells the customer that if they are still unhappy, they can ask HMRC to look at the complaint again. At that stage, a different official takes a fresh look at the complaint and gives HMRC’s final response. If the customer remains unhappy, they may approach the Adjudicator’s Office. The Adjudicator’s Office will investigate the complaint, drawing together a full and impartial summary of details from the customer and HMRC.

[Mr Cash]

I have read out the salient reference in the statement of Mr Ian Godfrey Wright, the senior Customs and Excise officer involved. He is a member of HMRC, or he certainly has been—I dare say he is retired now. This statement is dated 1996, so it is possible that it could be followed up, and it contains serious allegations by a senior Customs officer about the conduct of Customs and Excise—as I believe it still was—at the time. It is not as though we are talking just about communication between me and the Minister; we are also talking about sworn statements made by a senior Customs officer, which can be followed up. They must have this record—if they have not got that, I do not know what is going on.

--- Later in debate ---

[Mr Gauke]

Again, I will not repeat the data protection guidelines and the length of time for which HMRC is entitled to hold on to personal data. I note my hon. Friend’s comments about a statement being made in 1996. I do not know what communications there were with HM Customs and Excise, the body in place until the merger in 2005, or how they were made. As I have made clear in my remarks, a search was made across HMRC to locate records on the case, and no records were found.

As I was saying, the Adjudicator provides an independent review of details and makes her decision and recommendation. Customers who continue to be dissatisfied can ask an MP to refer their complaint to the Parliamentary Ombudsman, who will then decide whether to investigate the complaint. If she decided to do so, her investigation might also look at the way in which the Adjudicator’s Office reviewed the complaint.

It is worth noting that this specific case did not follow the normal procedure. My hon. Friend is perfectly entitled to contact Ministers about the matter. He has received replies from senior officials at HMRC and one from me dated 23 May 2013. All those replies carried the same message: given the age of the case and the lack of any of the original papers, HMRC is not in a position to comment with any certainty on the case.

Letters from the Adjudicator to my hon. Friend on 13 March and 25 April 2012 contained a similar message and provided contact details for the Parliamentary Ombudsman. However, if the constituent or his advisers provide HMRC with full copies of all the documents they hold in connection with the matter, I can assure my hon. Friend that it will carry out a thorough review and revert to them with its findings.

[Mr Cash]

Will the Minister please give way?

[Mr Gauke]

I will give way, but first I will make this point: my hon. Friend has provided HMRC with information regarding the case that indicates that a conviction was quashed following the finding that there had been a misdirection. As he will also be aware, his constituent’s concern is that there was a malicious prosecution against him. If HMRC has evidence that there was a malicious prosecution against someone, of course it should apologise. If that evidence is presented to it and it is satisfied that that is what has happened, I would hope and expect it to do exactly that.

[Mr Cash]

Whether or not it was malicious, the question is whether an apology is due, given the fact that—of this there is no doubt—there was a prosecution, my constituent spent time in jail, the conviction was quashed and then he was released. I am simply asking for an apology. There is an element of farce about the situation. I do not want to be told that I should go off to the Ombudsman; I am talking to the Minister, who is accountable to the House. He has responsibility for HMRC and for the conduct of Customs and Excise before it, in one form or another. All I am asking for—it sounds as though I am not going to get it, even this afternoon—is an apology on the Floor of the House from the Minister in relation to this. It is no good just reading out all the bits of paper that have been supplied—

[Mr Speaker]

Order. The hon. Gentleman’s intervention is a little on the long side. He has expressed some frustration that he does not think that he will get what he wants this afternoon but, on the strength of his 29 years of service in the House and the indefatigability with which he has pursued a variety of causes over those years, he will be well aware that it is open to him to pursue the matter again, and again, and again.

[Mr Gauke]

Thank you, Mr Speaker, for setting out that prospect.

What I am seeking to say to my hon. Friend is that his constituent clearly feels wronged. He was, as my hon. Friend says, convicted on a case brought by HM Customs and Excise, and that conviction was subsequently quashed. I understand my hon. Friend’s position, which is, in essence, that in any circumstances when someone has been wrongly convicted, the prosecuting authority should apologise to that person. I fully respect that position. However, it must also be said that the fact that an individual is found not guilty after a criminal trial or their conviction being quashed by a higher court on appeal does not necessarily mean that it was inappropriate for the case to have been investigated, or even prosecuted, in the first place. I am sure that my hon. Friend, as a distinguished lawyer, can appreciate that point.

It may well be that in this investigation over 30 years ago HM Customs and Excise behaved wrongly and inappropriately. If that is the case, then his constituent would deserve an apology in those circumstances—let me clear about that—and I would be very happy to give that apology on behalf of HMRC. However, before HMRC is in a position to give a full apology, it needs to see the facts more fully. As I say, the mere evidence that a conviction has been quashed does not necessarily mean that HM Customs and Excise behaved in an unacceptable way. That is why I believe that it is essential that my hon. Friend’s constituent provide all the available paperwork that he and his advisers hold to enable HMRC fully to assess the reasons for the quashing of the conviction.

[Mr Cash]

Will the Minister give way before he sits down?

[Mr Gauke]

I will allow my hon. Friend to intervene again; he need not worry that I am galloping towards the end.

I am keen to ensure that HMRC looks at the evidence again thoroughly, and if it is in a position to make the apology—I can understand the reasons why my hon. Friend wants that apology sooner rather than later—I am keen to do all I can to facilitate that. My hon. Friend rightly has a reputation for being someone who weighs the evidence thoroughly, and HRMC also needs to weigh the evidence thoroughly before it reaches a conclusion. It might be the easiest thing in the world just to announce an apology, but it should do so on the basis of the facts, and at the moment it does not have those facts.

[Mr Cash]

Let me refer again to the statement by Mr Wright—a senior Customs officer who I presume, or hope, is still available to be spoken to because his statement was so clear. There is also the opinion of the leading counsel, and there are all the other papers that have been supplied. If the records are not in the Department and no papers are available other than the ones we have already supplied, then I do not know what else we would be able to produce. I think that a careful judgmental assessment of the justice of this case is required, and that the apology is due, although my hon. Friend is now making some very helpful remarks.

[Mr Gauke]

I am glad that I have had the opportunity to make some helpful remarks. I say to my hon. Friend that the more evidence there is that can be presented, the better. I assure him that HMRC will consider the matter thoroughly and follow the evidence. If an apology is due on the basis of that evidence, it will of course make an apology. I accept that no apology was made when the conviction was quashed more than 30 years ago and that there has been no apology in the intervening 30 years.

I hope that this wider airing of the case and the offer for HMRC to review all his constituent’s paperwork go some way towards providing the assurance that my hon. Friend is seeking. If I have not provided that reassurance or if HMRC’s investigation of the evidence proves to be less than fruitful as far as he is concerned, I suspect, as you have said, Mr Speaker, that we will return to the subject.

Question put and agreed to.