Extradition (Provisional Arrest) Bill [Lords]

Steve Baker Excerpts

2nd reading & Programme motion: House of Commons & 2nd reading: House of Commons & Programme motion
Monday 22nd June 2020 Commons Chamber

[Daisy Cooper (St Albans) (LD)]

I want to address the question of whether and how the Bill could be used after the end of the Brexit transition period. For 16 years, the European arrest warrant has been Britain’s best crime-fighting tool. It is significantly faster and cheaper than its predecessor arrangements, and it may well be faster and cheaper than what might replace it. The Minister was at pains to highlight the limited scope of the Bill, but the Government themselves have suggested that the Bill could be used to extend extradition arrangements to other countries, including EU countries after transition ends and our membership of the European arrest warrant ceases. The Bill focuses only on extraditing criminals from the UK, but it is clear that this could be used as a basis for striking bilateral deals in the future.

The Government will know that Germany, Slovenia and Austria do not extradite their own citizens to other countries, with the sole exception of its being done under the European arrest warrant. What kind of arrangements do the UK Government hope to operate in those cases? If EU countries do not want to sign bilateral extradition deals, the UK could become a haven for criminals. The former Prime Minister, the right hon. Member for Maidenhead (Mrs May), herself warned in 2014 that leaving the European arrest warrant made the UK potentially a “honeypot” for all of Europe’s criminals on the run from justice. Similar concerns were raised in the House of Lords just last week in the context of this Bill.

The Government have said that they are committed to the European convention on human rights, yet they are refusing to formalise that commitment, even though that jeopardises our chances of agreeing a deal on extradition and other security issues. If the Government are genuinely committed to keeping the European convention on human rights, why not put us in a stronger negotiating position by making that commitment clear? We are four years on from the Brexit vote, with no agreed plans on what will replace our best crime-fighting tool, which we are due to lose in less than six months.

When the UK was a member of the EU, we participated in about 40 free trade agreements with more than 70 countries. We are now about to embark on renegotiating some of those from scratch. If the UK seeks to do valuable trade deals with a country that has a poor human rights record, to what extent will the Government be prepared to soften their extradition arrangements in favour of that country in order to secure that deal? What mechanisms will the UK put in place to ensure that that does not happen, so that we do not make ourselves vulnerable to the possibility of having to extradite people to countries with poor human rights records, where we do not have confidence in their justice system? I agree with the shadow Home Secretary, the hon. Member for Torfaen (Nick Thomas-Symonds), who said that the amendments passed in the House of Lords were the most effective way to uphold our commitment to human rights, and the Liberal Democrats support them.

[Mr Steve Baker (Wycombe) (Con)]

I have listened carefully to what the hon. Lady has said, and I have to tell her that I do not have much confidence in the justice system in Romania, bearing in mind the Adamescu case. Surely she must appreciate that within the EU there are severe shortcomings with the European arrest warrant scheme.

[Daisy Cooper]

That is one example that backs up the justification from the shadow Home Secretary earlier about why we should be dealing with individual applications from individual countries, so I see the hon. Member’s point as an argument in favour of the amendments that the Lords brought forward last week.

But we are discussing this Bill, which on paper is very limited in scope but which we know could be used more widely at the start of next year to create extradition arrangements with EU countries if those other fast-track deals are not done. Given the sombre statement that we have just had from the Home Secretary about a suspected terrorist act on our own soil, and the importance of ensuring justice for all those affected by that incident, it seems barely believable that we are now discussing an incredibly limited Bill that might, albeit not by design, become a poor and incomplete replacement for the European arrest warrant, our best crime-fighting tool, which we might lose in just six months, putting the UK at risk of becoming a “honeypot” for Europe’s criminals.

--- Later in debate ---

[The Solicitor General (Michael Ellis)]

I am hopeful that all Members can unite in a common commitment to protect the British public, and I am pleased to have the shadow Ministers, Labour Members and, indeed, other Opposition Members’ support in that.

This is about helping UK policing. I am sure we can all recognise without hesitation the increasingly global society in which we live, and we are sadly all well aware of the threats we face from cross-border criminality. I am confident that this legislation will make the United Kingdom safer. The Bill will ensure that where a person is wanted for a serious offence by a trusted country—I repeat, because those are operative terms: a serious offence by a trusted country—our police have the power, then and there, to get them off our streets, into the court system and before a judge here in the United Kingdom.

[Mr Steve Baker]

I am sorry that I missed the opening speech. Will my right hon. and learned Friend assure me that, as a country outside the European Union, we will not repeat the error forced on us as a member state of thinking that the integrity of the justice systems in all EU member state countries are of an equally high standard? We might, for example, recognise that the Adamescu case in Romania, which I mentioned earlier to the hon. Member for St Albans (Daisy Cooper), demonstrates that some countries are not fit to be included in the list.

[The Solicitor General]

As my hon. Friend knows very well, changed arrangements now with the European Union allow this country to conduct itself with fresh ideas and fresh considerations. But it is important to recognise that the Bill applies to a limited number of countries, with which we have an extremely good relationship, and in which we have considerable trust. Indeed we have considerable experience of their processes and judicial systems.

I just want to touch on a couple of remarks made in this brief debate by hon. Members from across the House. My hon. Friend the Member for North West Durham (Mr Holden) talked about the Bill being not before time. He is right to say that. He supports the mechanisms, including the statutory instrument mechanisms, which will allow an ease of process for the Bill going forward.

The hon. Member for St Albans (Daisy Cooper) talked about the Bill not being about the European arrest warrant and she is right. This is a matter of supporting our police here in the United Kingdom. Clearly, we are involved in negotiations, but nothing is more important, as she will recognise, than the safety of our people. The Bill is limited in scope, but it is important.

The hon. Member for Strangford (Jim Shannon), whose interventions in this House are always very welcome, mentioned, rightly, that the countries in the Bill are trusted partners. I am very pleased that he welcomes it.

The shadow Minister, the hon. Member for St Helens North (Conor McGinn), spoke in similar terms. It is important that on these measures, especially in times like these, we can speak as one about the security of the people of this country and recognise that the legislation does not change any other part of the subsequent extradition process. All the safeguards that currently exist in extradition proceedings in this country, set out under part 2 of the Extradition Act 2003, will continue to apply. The Bill does not do anything to change that. The courts will have the same powers and protections as they do now, including the fact that they must ensure that a person will not be extradited if doing so would breach their human rights in any way; if the request is politically motivated; or if they would risk facing the penalty of death. Our courts can be trusted—the examples are legion—to make sure that the provisions are adhered to.

The Bill seeks to deal with a very simple issue. Currently, as the Under-Secretary of State for the Home Department, my hon. Friend the Member for Torbay (Kevin Foster) mentioned in opening the debate, a potentially dangerous wanted individual who is known to the police can potentially remain at liberty on the streets of this country, able to offend, able to reoffend and able to abscond. Examples exist where that has happened. The new power will see people who are wanted by a trusted country for a serious crime, and who may be a danger to the public, off our streets as soon as they are encountered.

Legal Advice: Prorogation

Steve Baker Excerpts

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

Yes.

[Mr Steve Baker (Wycombe) (Con)]

Is it not the case that, contrary to the shouted opinions from the Opposition Front Bench, the Supreme Court has invented a new constitutional rule, just as Lord Sumption told us on the “Today” programme this morning? Lord Sumption also said that this was a revolution—he described the decision as revolutionary. Is it not the case that—[Interruption.] The hon. Member shouts “shocking”, but it was Lord Sumption who said it. Is it not the case that, prior to this revolutionary decision by the Supreme Court, it is quite likely—indeed probable—that my right hon. and learned Friend’s advice was correct, but the Supreme Court changed the law?

[The Attorney General]

I am grateful to my hon. Friend for the question. I cannot disclose what advice I gave. The hon. and learned Member for Edinburgh South West, who first asked this urgent question, had that answer, and I am afraid I am going to have to keep giving it today. However, what I would say is that the Supreme Court did indeed, as it overtly and explicitly said, develop the law. It took what was a political convention—hitherto, in all the constitutional textbooks, described as unenforceable by a court—and decided that it would set a test and convert it into a legal principle and legal test. It was perfectly entitled to do that, just as this House will, in the coming months and years, have to reflect on the implications and on whether it is content to leave that position untouched. However, for the moment, that is the law, and the law must be obeyed.

Withdrawal Agreement: Legal Opinion

Steve Baker Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[Mr Steve Baker (Wycombe) (Con)]

Paragraph 23 of the political declaration makes it clear that we would

“build and improve on the single customs territory provided for in the Withdrawal Agreement”.

We know what the EU understands that to mean. In good faith and with best endeavours, it understands it to mean a customs union, as Dan Hannan MEP reminded us earlier. So is it not the case that if we negotiate under this agreement, we will either find ourselves trapped indefinitely in the backstop, because the EU is acting “in good faith”, or have to agree a customs union, contrary to our manifesto?

[The Attorney General]

I simply say to my hon. Friend that I really do not believe so. Why not? Because the commitments now cemented on alternative arrangements, which require a separate negotiating track, with a timetable to negotiate them, are now built in so that, as I have said in my written opinion, it would be extraordinary if the EU declined to adopt any such measures. It would be extraordinary, so I do not accept that the backstop is the base for any future arrangement. Let me give another reason why it is not. Built into the political declaration is an independent free trade policy, and we cannot have an independent free trade policy and have a customs union. Also built into it is no free movement. Does the Labour party support free movement now? It speaks with all sorts of voices. But the political declaration says there is none, and we cannot belong to the single market without free movement. So I say to my hon. Friend that I understand where these fears come from, but we must be bold and courageous, and we must move forward, for the sake of our country.

Withdrawal Agreement: Legal Position

Steve Baker Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I can only tell the right hon. Gentleman that I have not massaged the advice. I have given it absolutely as I see it—absolutely starkly. I will give that same advice if anybody asks to come and see me, but I cannot breach the fundamental constitutional principle that I believe it would be contrary to the public interest to break. I can only invite the right hon. Gentleman to accept that I have given this advice as candidly as I possibly can; I cannot say any more if he does not accept that.

[Mr Steve Baker (Wycombe) (Con)]

An amendment was tabled to the Humble Address motion that was highly sympathetic to my right hon. and learned Friend’s position. It was not selected and not passed, but the motion, unamended, was passed. Therefore, whatever he has just argued at the Dispatch Box, the position is as my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) set out—he is under an instruction. If he wishes to change the position in the House of Commons, will he move a motion in this House to support the position that he has just set out?

European Convention on Human Rights: UK Membership

Steve Baker Excerpts

Tuesday 26th April 2016 Commons Chamber

[The Attorney General]

The Home Secretary is clearly aware of those complexities, as is my right hon. Friend the Lord Chancellor. It is difficult for me to discuss the details of proposals that have not yet been brought forward. The best thing I can do is to assure the hon. Lady—I know she does not want me to do so—that there will be an opportunity to discuss the issues in more detail. That is the best I can say at this point.

[Mr Steve Baker (Wycombe) (Con)]

The Government are in something of a pickle. As well as needing multiple Parliaments, this great European project also needs two human rights frameworks. The result is a state of confusion, as set out by the European Scrutiny Committee’s 43rd report of the 2013-14 Session, “The application of the EU Charter of Fundamental Rights in the UK: a state of confusion”. How will the Government ensure that any Bill of Rights will be able to survive the European Court of Justice?

[The Attorney General]

Again, my hon. Friend tempts me to talk about proposals that are not yet before us, and I cannot do that. He is right, of course, to reinforce the point that these matters are exceptionally complex. Anyone who suggests that they are simple is wrong. We will, of course, have the opportunity to discuss the issue in some detail when the proposals are brought forward, in contrast with the position when the Human Rights Act was introduced, when there was precious little opportunity for consultation.

Serious Fraud Office: Bryan Evans

Steve Baker Excerpts

Wednesday 3rd February 2016 Westminster Hall

[Byron Davies (Gower) (Con)]

I beg to move,

That this House has considered Bryan Evans and the Serious Fraud Office.

It is a pleasure to serve under your stewardship, Sir Roger. I bring this matter to the House so that Mr Bryan Evans, my constituent, may have his account of events put on the parliamentary record. It is a complex matter that involves many actors, which I hope to make clear. I know that this matter has affected other people, which is made evident by the number of colleagues here today and those who have co-signed a letter to the Select Committee on Business, Innovation and Skills that asked it to examine the ongoing allegations of fraudulent misrepresentation and collusion involving banks and the receivers used by those banks.

I pay tribute to the hon. Members for Cardiff Central (Jo Stevens) and for Ogmore (Huw Irranca-Davies), who have previously brought forward cases from their constituencies for debate and worked hard and with great diligence on the issue. I hope we will continue to make progress on a cross-party basis.

I have known Mr Evans for several years—I first met him when I was his Welsh Assembly Member—so I am well aware of his case. I have been directly involved for some time, so I am aware of the devastating effect that it has had on him and members of his family. Mr Evans is firmly of the belief that he is the victim of fraud, and that he has evidence to substantiate that. Indeed, before he took his evidence to the South Wales police economic crime unit some four years ago, it had been reviewed by two retired senior fraud officers who both confirmed that, in their opinion, a fraud investigation was warranted. However, to this day Mr Evans is adamant that his case has not received the attention it warrants. An investigation into the conduct of Mr Evans’s case by the aforementioned crime unit is currently being undertaken by the professional standards department of South Wales police, which endorses Mr Evans’s beliefs.

Mr Evans tells me that he, along with his former MP, Martin Caton, and I, as his Assembly Member, had been misled from the highest level. Furthermore, he forwarded his evidence to the Serious Fraud Office two years ago, and here again he says that no proper action was taken.

Mr Evans was the managing director and 50% shareholder in EP Leisure, with the other 50% being owned by Mr Robert Sullivan. The company was a vehicle to develop a prestigious piece of land that it owned on the seafront in Mumbles. The site was, and still is, being run as a car park, grossing approximately £180,000 a year. The land was adjoined by council-owned land and it had been agreed to unify the sites for a comprehensive development.

In 2003 EP Leisure engaged Poolman and Harlow, a firm of valuers. The firm was owned by Roger Poolman and Bob Harlow and the latter worked closely with Mr Evans on all aspects of the proposed development. EP Leisure was funded by Barclays bank. In April 2006 Poolman and Harlow were bought out by a national firm, Lambert Smith Hampton. It is believed that Messrs Poolman and Harlow received a substantial amount of money for their property portfolio, part of which was EP Leisure’s land. Mr Harlow continued to work with Mr Evans under the Lambert Smith Hampton banner.

In 2007 Mr Harlow placed a valuation on EP Leisure’s land of between £4 million and £6 million, and that value would increase if certain criteria were achieved. The valuation was so buoyant that Barclays was happy to return equity to Mr Sullivan that had been supporting a loan, so the loan of some £2.2 million became free-standing. In 2008 Barclays introduced a manager, Mr David Little, into the frame. It was at that time that Mr Evans tells me Mr Harlow started liaising more frequently with Mr Little, which led to Mr Evans asking Mr Harlow if he was now in a conflict-of-interest situation. Mr Harlow assured Mr Evans that he was not.

In November 2008 Mr Evans was informed by Mr Little that Bob Harlow had now devalued EP Leisure’s land to £1 million, leaving Barclays “significantly under water”. Oddly enough, 18 months later, Mr Evans attended a meeting with his solicitor and his accountant where he met Mr Jonathan Hoey of TLT Solicitors and Mr Sainsbury, the head of recovery for Barclays bank. Mr Sainsbury told him that that valuation did not exist, and it is that valuation report that is at the heart of the case.

Mr Evans told me that Mr Little’s attitude became extremely aggressive. He tried to pressurise Mr Evans into acquiring the adjacent council land and putting it under EP Leisure’s ownership. Mr Evans refused to do that and wrote the first of many letters to the then chief executive of Barclays, Mr John Varley. Mr Evans later wrote to two subsequent chief executives and the chairman of Barclays. Subsequently, Mr Little was removed from EP Leisure’s account.

In July 2009, at the behest of Mr Varley’s office, Mr Evans, along with his co-director, Mr Derek Morgan, met Mr Steve Thomas and Mr Wynne Walters of Barclays to resolve all issues. However, at that meeting Mr Evans was told that his file had already been sent to London by Mr Little for recovery. Mr Evans said that that was later proven to be untrue in writing from Martin Sainsbury. In September 2009 Mr Evans was written to by Martin Sainsbury, asking him either to sell the land or to refinance the debt. Mr Evans agreed to the latter. Mr Sainsbury also requested that Lambert Smith Hampton take the lead in all future negotiations. Mr Evans explained that that was not possible and Mr Sainsbury accepted that.

Mr Evans had become extremely suspicious of Mr Harlow’s actions. He believes his suspicions were borne out when, out of the blue, he received a letter from Mr Sainsbury that stated that he was disappointed that he was not co-operating with Mr Harlow, and that he was placing Lambert Smith Hampton as Law of Property Act receivers over his land. Mr Evans contacted Mr Sainsbury to explain that Mr Harlow was at all times fully informed of all matters and the threat of receivership was withdrawn.

In November 2009, after receiving another report from Mr Bob Harlow, which was to be later referred to as a pre-receivership report, Mr Sainsbury placed Mr Andrew Hughes and Roger Poolman of Lambert Smith Hampton as LPA receivers over EP Leisure’s land. That report is at the heart of Mr Evans’s allegation of fraud and of Mr Evans losing his land and Lambert Smith Hampton’s gain.

[Mr Steve Baker (Wycombe) (Con)]

In a similar case, a constituent of mine has alleged that NatWest committed a fraud by persuading him to surrender a 25-year buy-to-let mortgage in exchange for a 12-month loan in anticipation that he would subsequently receive a 25-year mortgage, but that was not forthcoming. Written agreements are missing and my constituent has suffered material disadvantage. The ombudsman has ruled against my constituent, so I want to ask the Minister what is to be done in such cases.

[Byron Davies]

I am grateful for that intervention, which goes to prove that there are many ongoing cases.

Mr Evans believes that Mr Harlow was determined to prevent him from refinancing with another bank as Lambert Smith Hampton would lose the contract for the development, which could in turn lead to Poolman and Harlow having to reimburse Lambert Smith Hampton for that loss, which is commonly referred to as a clawback.

Mr Evans engaged Geldards solicitors in Cardiff. Over a period of time, Mr Karl Baranski of Geldards discovered that Barclays had no legal charge over EPL’s land and therefore its actions to date could be challenged. Mr Baranksi also pointed out to Barclays that Lambert Smith Hampton was in a conflict-of-interest situation.

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

It is a great pleasure to serve under your chairmanship, Sir Roger. I pay warm tribute to my hon. Friend the Member for Gower (Byron Davies), who brings his case to the House with passion as not only a constituency Member of Parliament but a former senior police officer, with a degree of insight into the matters we are discussing. I think he would agree that the thrust of his speech, which I listened to carefully, dealt with issues relating to the police, their involvement in this case and—I will put this neutrally—the lack of positive progress made for his constituent, Mr Evans.

My hon. Friend asked some specific questions, in particular why the police refused to seek a production order from the bank. Of course, I am aware that Mr Evans complained to South Wales police about the outcome of the original investigation, and that its professional standards department is currently investigating that complaint, which I very much hope will be concluded. It would be inappropriate for me to comment on the merits of that, or indeed the merits or otherwise of the case. From what I have heard, however, it must be a deeply troubling and huge problem for Mr Evans. Stepping into his shoes for a moment, I can understand why he feels as he does.

As one of the Ministers with a superintendary role over the independent Serious Fraud Office, it is important, in the context of the debate, that I outline as succinctly as I can the principles and guidelines that the SFO applies in determining whether to embark upon an investigation and a prosecution. As I said, having an independent agency is vital, bearing in mind the constitutional importance of having an independent prosecutorial authority, but I remind hon. Members that the SFO was created under an Act of Parliament—the Criminal Justice Act 1987—to deal with the top tier of serious and complex fraud cases. We know the sort of cases that the director, David Green, has taken on—cases such as Rolls-Royce, GlaxoSmithKline and Tesco, to name but a few. They are high-profile and high-risk, involving huge sums of money, great numbers of victims or species of fraud. That is not to understate the seriousness of the loss that my hon. Friend’s constituent has suffered.

[Mr Baker]

Is it not the case that there might be in aggregate a very large sum of money involved in similar cases?

[The Solicitor General]

I am grateful to my hon. Friend for that intervention, and I listened with interest to his earlier intervention and that of the hon. Member for Ogmore (Huw Irranca-Davies). I know the point he is making, and the straight answer is that the SFO keeps the matter very much under review. If there is indeed a cumulative effect and a clear modus operandi that suggests widespread and similar frauds of this nature, the circumstances will clearly change.

To answer directly the question that the hon. Member for Ogmore asked, I do not quite think we are there yet, but let me explain further—I know he is very familiar with this issue, because he has asked written questions, to which he will get very swift answers, I promise. However, he gives me the opportunity to outline the statement of principle.

The decision by the director of the SFO on whether to launch an investigation has to be made on the facts and circumstances of each case. Being overly prescriptive would not be appropriate, bearing in mind the unique circumstances of every case. Many factors are taken into account, but for guidance, the statement of principle sets out that when considering cases for investigation, the director will consider the following: first, whether the apparent criminality undermines UK plc commercial or financial interests in general and in the City of London in particular, causing reputational damage to the country; secondly, whether the actual or potential financial loss involved is high; thirdly, whether actual or potential economic harm is significant; fourthly, whether there is a significant public interest element; and finally, whether there is a new species of fraud.

“That is not a tick-box exercise where, if every one of a set of measures is met then the SFO will open an investigation. That would inevitably lead to cases being taken on by the SFO which did not require its unique model of investigators, prosecutors and other professionals working together in one organisation or its set of powers.”

I will quote from the “Protocol between the Attorney General and the Prosecuting Departments”, which sets out that the decision for the SFO to investigate and prosecute is

“a quasi-judicial function which requires the evaluation of the strength of the evidence and also a judgment about whether an investigation and/or prosecution is needed in the public interest.”

That will not always be an easy decision, but for the vast majority of financial crimes, the traditional model of a police investigation and a Crown Prosecution Service prosecution is the best model. That is because the police, as my hon. Friend the Member for Gower knows, rightly have primary responsibility for investigating crime in this country, and Action Fraud has been established as the national reporting centre to which reports of alleged fraud should be referred in the first instance.

I repeat that the SFO’s role is limited to investigating and prosecuting cases of serious or complex fraud, so it cannot and should not take on every case referred to it. To give that some context, the SFO takes on between 10 and 20 cases each year. It receives nearly 3,000 reports of fraud directly from the public each and every year, so the vast majority of referrals are not about matters that it can properly investigate. Complainants are then advised that the complaints will be referred on to Action Fraud for dissemination to the relevant police force where appropriate.

The SFO retains the material and uses it for intelligence purposes, and that is the point that hon. Members have made. That intelligence material is part of the SFO’s work in building an intelligence picture, and through that information and material it can properly identify the top-tier cases that are appropriate for it to investigate. In other words, debates such as this are invaluable in bringing into the public arena information that can then be collated and properly reviewed. I said that to the hon. Member for Ogmore in September and I repeat that assurance today.

Assisted Suicide

Steve Baker Excerpts

Tuesday 27th March 2012 Commons Chamber

[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.

Cawston Park Hospital

Steve Baker Excerpts

Monday 21st March 2011 Commons Chamber

[Steve Baker (Wycombe) (Con)]

I am grateful to the Solicitor-General for responding to the debate and for being present at this late hour. My hon. Friend the Member for Norwich North (Miss Smith) and I would like to raise with the House and the Solicitor-General the experiences of Mr Andrew Breeze, a former NHS worker and founding clinician of an independent and innovative psychiatric hospital, Cawston Park.

Mr Breeze’s experiences have been documented in both the regional and the national press, notably by my hon. Friend in an article in The Mail on Sunday on 2l November 2009. Although Mr Breeze is not one of my own constituents, his brother Paul is, and I have agreed to support this important matter, as it has wide-ranging consequences for independent health care and, indeed, many entrepreneurial projects requiring major capital investment.

In late 2003, Mr Breeze set up Cawston Park. He and the other founding clinicians had all previously worked within the NHS and had felt constrained in seeking to provide high-quality, effective care that provided value for money. They therefore seized the opportunity to move into the independent sector to achieve their vision.

The purpose of Cawston Park hospital was to provide specialist psychiatric care and treatment to severely mentally ill patients, many of whom could not be properly treated within the existing NHS structures. In November 2006, the hospital was recognised as having achieved outstanding clinical successes owing to its unique approach to patient care and treatment. Patients who had previously been in other hospitals for lengthy periods of time were being successfully discharged from Cawston Park hospital and it had become apparent that it was saving the NHS hundreds of thousands of pounds annually. Feedback from NHS primary care trusts was extremely positive and referrals extended across the whole of the UK.

However, that period of great accomplishment and acclaim quickly turned sour because of internal difficulties with a senior member of staff. I do not wish to inform the House of every sordid detail I have been shown, but the allegations range from theft to an extra-marital affair with another staff member, together with a range of other grievous matters. As a result there was an internal investigation, followed by disciplinary proceedings, which took place on 16 November 2005.

During this time, the staff member in question had decided to leave Chancellor Care to set up a rival facility to Cawston Park hospital. He had been found to be removing hospital property and recruiting Cawston Park staff to his new venture. A disciplinary hearing was duly set up by Mr Breeze, but the gentleman telephoned one hour before the hearing was due to take place to inform Mr Breeze that he was resigning without notice as he did not want a dismissal on his record when he applied to the Healthcare Commission for a licence to operate a rival facility.

Six weeks later, the Nursing and Midwifery Council wrote to the ex-employee to notify him that it was going to investigate the reasons surrounding his departure from Cawston Park. However, by not re-registering as a psychiatric nurse, which I understand he still has not done, he was able to prevent the NMC investigating further. Later that day he contacted the NHS Counter Fraud Service through its hotline to make what turned out to be malicious allegations.

A subsequent statement was made to NHS Counter Fraud by the female nurse who purportedly had personal relations with the ex-employee, which was considered to be an independent corroboration of the initial allegations. Contemporaneously, a patient had reported the ex-employee to the protection of vulnerable adults scheme, which is now under the auspices of the Independent Safeguarding Authority, for abusive behaviour towards patients. This might have served to illustrate further the character of the accuser.

What followed was a three-year investigation primarily involving three Government agencies and one private company, Lloyds Development Capital. More than 50 police officers were involved in a high-profile dawn raid, which I have learned today was leaked to the press. Some of them were drafted in from outside Norfolk. The defendants were interviewed three times for more than 20 hours. More than 80 witnesses were interviewed, some more than once, concluding in the commissioning of four expert witnesses and the production of four lengthy reports, most notably the Badcock report, whose author admitted that he was not an expert in the field.

NHS Counter Fraud worked on the case for six months before handing it over to the local police in July 2006. During that time, NHS Counter Fraud had concluded that fraud had occurred and Mr Breeze was subsequently charged with conspiracy to defraud the NHS of £2.3 million. The case alleged that the directors had charged the NHS for additional care that had never been provided.

Mr Breeze’s contention is that the police were misled by NHS Counter Fraud convincing them that a fraud had in fact taken place. His argument was as follows. First, in his meeting with NHS Counter Fraud on 16 November 2010 he was informed that it had come to the conclusion that fraud was occurring. My hon. Friend the Member for Norwich North was in attendance. Secondly, in an interview under caution the police made it obvious that they believed that that fraud had occurred. Thirdly, Norfolk police did not have a fraud squad so the case was handed to its major investigation team, which was more accustomed to dealing with murders. No one in that team was a fraud specialist. Fourthly, the police assumed that NHS Counter Fraud knew how a private sector psychiatric hospital operated clinically. That may seem reasonable, but it turned out to be incorrect. Fifthly and finally, NHS Counter Fraud did not advise the police which type of psychiatric expert they should go to, so they went to the wrong type and received factually incorrect and misleading information.

As a result of those events, Mr Breeze and his solicitor, Richard Smyth, came to the conclusion that the police were constructing a case from poor evidence rather than trying to detect whether a crime had been committed. I must ask the Solicitor-General if that is how the system should function.

When Andrew Breeze met NHS Counter Fraud on 16 November 2010, the only documentation that could be produced supporting the fraud allegations was several witness statements taken by the Counter Fraud team, which it had previously refused to disclose to Mr Breeze despite repeated requests to do so. One of those statements was from the original accuser; another was from the female nurse with whom he was in a relationship and setting up the rival project; and another was from a member of staff who had worked at Cawston Park hospital and been recruited for that new venture. Additionally, that individual had invested £10,000 in the new enterprise. There were three other statements taken from ex-staff who had left Cawston Park disgruntled in the past. One does not need a legal education to question the quality of those witnesses and the numerous vested interests that will have been at play.

In the light of those connections, perhaps the police investigations might have discerned something amiss in the accusations at an early stage. When asked by Andrew Breeze why the NHS Counter Fraud team had not carried out basic and obvious lines of inquiry that would have clearly showed fraud was not taking place, its response was that it did not have the resources in place to do that. Mr Breeze had that meeting taped and is having it transcribed.

The police then investigated from July 2006 to February 2008, at which point Andrew Breeze was charged with conspiracy to defraud the NHS. The police now refuse to disclose their case summary, which was sent to the Crown Prosecution Service prior to the decision to charge Mr Breeze. His freedom of information request has been rejected.

What is of significant interest is the 22 April 2009 computer forensic review prepared by James Coulthard from Stroz Friedberg. A summary of his conclusions are as follows:

“Computers relating to”

Mr. Breeze’s accuser

“appear not to have been examined…Norfolk Constabulary Computer Crime Unit have lost digital evidence from exhibits, which cannot be replaced. Norfolk Constabulary Computer Crime Unit supplied defective and incomplete digital evidence to the defence without verifying the integrity of the evidence on more than one occasion. The lack of key exhibits in this case makes it impossible for the defence to effectively investigate the claims of document falsification by BREEZE and WILSON.”

Does the Solicitor-General share my concern about the implications of those events?

The result was that Cawston Park’s financial backers, Lloyds Development Capital, exercised its increased rights under the terms of the management buy-out, which stated that, if allegations of fraud were brought to its attention, it then had the power to dismiss Andrew Breeze from his post of chief executive. It subsequently did so and brought in Lesley Reardon-Denton, someone who had no clinical experience in psychiatry, to run the business in Mr Breeze’s absence.

On the instructions of Lloyds Development Capital, Ms Reardon-Denton instigated an internal inquiry by bringing in what she described as an “independent” expert, Christopher Hird, to produce a report, which heavily criticised Mr Breeze’s management of Cawston Park and was used to dismiss him. It later transpired that Mr Hird was not independent, having been a long-standing employee of Lesley Reardon-Denton in a business of which she was chief executive in London. The prosecution subsequently ditched the report, when its independence was questioned, during the trial.

Lloyds’ resulting decision meant that Mr Breeze went on to lose his entire investment, which the police valued at £9.4m. That seems to me a grotesque injustice which is bound to deter other entrepreneurs.

A further point of note is the conduct of Zurich Insurance. Cawston Park had directors’ and officers’ liability insurance when it carried out the management buy-out. This was meant to cover all the legal costs if any member was accused of fraud. However, in a letter dated 9 October 2007, Zurich informed Mr Breeze that it was reneging and refused to pay. It deemed the policy null and void on the slightly odd grounds that Cawston Park did not inform it that the directors were involved in criminal activity when the policy was taken out some time previously. We should note that, at this point, Mr Breeze had not been charged. Zurich went on to say:

“Given that the criminal wrong doing appears on any view to pre-date the retro date in the policy, our clients do not feel able to continue indemnifying defence costs.”

Mr Breeze was unable to fight this decision privately, as the police had frozen all his assets, thus not allowing him to pay for legal advice. Legal aid eventually took over, but at an estimated cost of £2 million. Should not legal aid be persuading Zurich to honour its policy and pay what is due? Should the taxpayer even be liable?

Trial proceedings began in April 2009, but before the prosecution could complete outlining their case, the judge brought the trial to a close because they could not offer sufficient evidence. In his closing speech, the judge made complimentary comments about Mr Breeze, including:

“You entered this courtroom on the 20th April as a clinician of exemplary character. You leave it vindicated with your good name intact and your head held high”,

and:

“I hope that no professional or other obstacle will remain to hinder your early return to work in the field of psychiatric healthcare, should you wish to do so. You are a talented man with much still to offer your peers and patients.”

Regrettably, Cawston Park hospital never recovered from the investigations by NHS Counter Fraud and Norfolk constabulary. It finally went into administration, with the investigation process being cited as the reason for its closure. Despite the judge’s comments, Andrew Breeze has had obstacles put in his way that have prevented him returning to the field of psychiatric health care.

This tragic story touches on numerous legal, social and political issues that need to be addressed. They have potentially far-reaching implications for entrepreneurs, particularly with respect to the Government’s programme of health reform. The first issue is the role of the three organisations, which, although independent of each other, failed to carry out basic lines of inquiry. Although the CPS clearly stated that there was no evidence to support the allegations and that the case should never have reached the stage that it did, it continued to assert that there were five indications of dishonesty. A letter from the CPS to Mr Breeze concluded:

“1. There are some factors that indicate dishonesty, which include a body of witness evidence to show a lack of understanding or knowledge of extra care by staff that one would expect to be involved in administering that type of care;

2. Evidence of low staffing levels to give enhanced care;

3. No clear audit trail to show what a patient received to justify the extra charges made;

4. There doesn’t appear to be file notes on the patients' files to cover the extra care aspect of their treatment;

5. In addition, some patients were charged extra care premiums whilst away from Cawston Park.”

Mr Breeze argues that those assertions are based on inaccurate and incomplete information that was provided to the CPS by NHS Counter Fraud and subsequently to the police. The CPS refused to meet Mr Breeze to discuss the matter any further, and Keir Starmer QC, the Director of Public Prosecutions, stated that any further debate would not progress the matter, having written:

“Further correspondence from you which fails to raise fresh issues will be filed without response.”

Because of these rebuffs, regrettably, Mr Breeze’s reputation remains tarnished.

Furthermore, Norfolk constabulary and the Independent Police Complaints Commission have denied any wrongdoing, even though the judge ruled that the allegations against Mr Breeze and his hospital’s finance director were unfounded, and even though the judge said that they left court

“exonerated and as innocent men”.

Both public bodies appear to have failed to take into account the very significant losses, both financial and reputational, suffered by Mr Breeze. Contrary to the judgment, the two men have not been exonerated and remain condemned in the eyes of the bureaucracy.

The next organisation is NHS Counter Fraud. A Parliamentary question tabled by my hon. Friend the Member for North Norfolk (Norman Lamb) revealed that over the previous three-year period, NHS Counter Fraud cost £32.4 million to operate and uncovered £10.1 million of fraud. The operation of NHS Counter Fraud had cost the NHS £22.3 million net over three years, which seems ridiculous.

NHS Counter Fraud has met Andrew Breeze and my hon. Friend the Member for Norwich North, but has not satisfied either of them that it carried out a competent and comprehensive investigation into the allegations of fraud. Additionally, the NHS Counter Fraud investigation has placed another burden on the taxpayer indirectly, due to the savings that Cawston Park hospital was providing to the NHS year by year. Considering that NHS Counter Fraud was set up in 1998 to save the NHS money, it is ironic that its actions through the course of this case have cost the NHS millions of pounds.

I dread to hear the total amount that this debacle has cost the taxpayer. It is clear that the cost to Mr Breeze, his family and the other individuals arrested or brought to trial goes far beyond quantitative description. What should be noted is that Mr Breeze does not want taxpayer-funded compensation. Despite losing a fortune, he wishes simply to see his name restored and to prevent future travesties of justice. The only reason Mr Breeze would contemplate legal action is to obtain the documents he has consistently been refused in his attempt to clear his name.

The second key issue is that a disgruntled ex-employee, masquerading as a whistleblower, was able to destroy a business and a facility for severely mentally ill patients that had become recognised as a flagship hospital for their treatment. He did so with a financial interest in that outcome. Such episodes are likely to discourage and inhibit entrepreneurial individuals, partnerships, and businesses from embarking on new ventures. This is critical at a time of NHS reform and increasing need. Good entrepreneurs should be encouraged by the state, not permanently condemned and ruined on false charges.

I am deeply concerned that there is still the possibility that exactly the same thing could happen to other entrepreneurs. There have been no external reviews across the organisations concerned, so no lessons have been learned. The state has ruined a thriving business, along with the lives of several committed individuals who have been financially encumbered. There seems to be no mechanism to hold any of the relevant public bodies to account. Each organisation has held its own internal review. The police and NHS Counter Fraud stated that all protocol was followed correctly. The CPS admitted that mistakes were made and that this should never have happened.

For Andrew Breeze to clear his name, it must be acknowledged that the allegations against him were based on inaccurate and incomplete information. The court judgment that fraudulent behaviour was not occurring within Cawston Park must be affirmed. Indeed, it should be stated that dishonesty was never a factor in any of the business dealings within the organisation. My hon. Friends the Members for North Norfolk and for Norwich North and I wholeheartedly want Mr Breeze’s name to be cleared by the relevant public bodies. That is the bare minimum he deserves after this pantomime. It would perhaps at least enable him to start again.

I finish with some questions for the Solicitor-General. Will he establish an independent inquiry into the actions in concert of the CPS, NHS Counter Fraud and Norfolk constabulary? Will he further investigate the questionable actions of Lloyds Development Capital, which was directly responsible for the sacking of Mr Breeze and the demise of Cawston Park’s outstanding service to the community? Such an inquiry could create far safer conditions for the entrepreneurs we so desperately need today.

Will the Solicitor-General give an assurance that, after nearly four years, Mr Breeze will receive clarification, along with the documentation he has requested, from NHS Counter Fraud on its role in the fiasco? Will he convene with the CPS to establish Mr Breeze’s innocence in the matter? Will he ensure that any independent inquiry that is set up allows access to all the documentation that Mr Breeze has been requesting for the past two years, particularly the police case summary? Mr Breeze is still waiting for a report from the senior fraud lawyer at the CPS who carried out a review of its decision to charge him initially. He is concerned that, like the recently rejected police case summary, the CPS report will not be made available.

Finally, will the Solicitor-General work to eliminate this Kafkaesque tangle of bungling bureaucracy? The state has ruined a great business, along with its founder, and that should be remedied. More broadly, the state continues to threaten honest entrepreneurs. The instruments of the state should not be allowed to do that in future.