§ Lord James Douglas-HamiltonI beg to move amendment No. 3 in page 7, line 2 after 'apply' insert 'by summary application'.
§ Madam Deputy SpeakerWith this it will be convenient to take Government amendments Nos 4 and 5.
§ Lord James Douglas-HamiltonThese amendments relate to procedural matters under clause 5. Amendment No. 3 is a simple clarifying amendment which makes it plain that application by a nominated officer to the sheriff for an order under clause 5(6) is by the summary application procedure.
Amendment No. 4 is also a clarifying amendment. Subsection 5(6)(a) specifies that the nominated officer may apply to the sheriff for an order requiring a person to attend to answer questions and provide information at a time and place specified in the order. The insertion of the word "and" makes it clear that the order requires the person not only to attend, but also to answer questions and provide information.
Amendment No. 5 inserts a new subsection after subsection (6). It reflects concern in Committee that a person required by a court order to provide answers to the nominated officer might be faced with the choice of obeying the order and incriminating himself by answering the questions or possibly to commit an offence by refusing to make a statement and thus breaching the court order.
It is important to bear in mind that these are civil and not criminal proceedings. They relate to the investigation of an officer appointed by the Lord Advocate to discover whether there appears to have been misconduct or mismanagement of a charity's affairs. I recognise the concern expressed by several Committee members, including the hon. Member for Glasgow, Garscadden (Mr. Dewar), that there should be no room for doubt. The amendment makes it clear that a person must answer truthfully questions put to him by a nominated officer when an order has been made under subsection (6) and that he may not refuse to answer on grounds that his answer might incriminate him.
The new provision that amendment No. 5 seeks to insert also makes it clear that no answer to a question under subsection (6) may be used in any subsequent criminal proceedings against the person. I believe that in practice the nominated officer will act more like a Department of Trade and Industry official than a procurator fiscal. If he asks a question and receives an apparently incriminating reply, the nominated officer will normally terminate the interview immediately and refer the matter to the Lord Advocate with a view to the matter being referred to the police for criminal investigation if an incriminating answer gave rise to questions not as to whether there had been a breach of trust, but as to a serious crime.
§ Mr. Menzies CampbellOn the occasion of such a transaction as the Minister has described, does he envisage that the nominated officer would put the person summoned on oath and require him to take the oath in conventional terms like that taken by a witness giving evidence in court?
§ Lord James Douglas-HamiltonStatements to the nominated officer will not be under oath.
§ Mr. DewarAlthough it is difficult with our time constraints and our inability to amend the Bill now, I would like the Minister to give us a little more help. He has already shed some light on the Government's intentions. As the Minister has said, the concern is that we have a rather cumbersome procedure whereby the Lord Advocate, having decided to inquire into a charity, appoints a nominated officer. If that nominated officer meets a refusal to co-operate, he can go to the sheriff for an order under clause 5(6) which would force the person concerned to answer questions or to furnish information at a time and place specified in the order.
The concern was that that person might in effect be asked to incriminate himself. The Minister has explained that we are talking about civil proceedings and that nothing that is said will be admissible in evidence in any subsequent criminal proceedings.
The position is still quite difficult. If I am being interrogated or questioned by the nominated officer, it will cause me some unease if I have to answer a question which, if I answer it honestly—we are talking about the real world here—will be written down and although it may not be used as primary evidence in any criminal proceedings, will be passed to the Lord Advocate who is, after all, instructing the nominated officer. The Lord Advocate has certain other duties of a criminal nature. Obviously I may be prejudicing my future quite considerably if I proceed to follow the advice that the Minister has given and answer the questions honestly.
I want to be clear about what would happen if I do not answer the questions. If I say that I am very sorry, but I do not want to answer a particular question, am I caught by clause 5(7)? I have complied with the order in the sense that I have turned up and answered questions. Do I have to answer every question? If I say that, in effect, I wish to plead the Scottish equivalent of the fifth amendment, will I be caught by the penalty in clause 5(7) or would I be a person under clause 5(8)
who wilfully alters, suppresses, conceals or destroys and record which he may be required to furnish or transmit"?I should not have thought so, but what is the sanction? The person is not on oath, as the Minister has explained. He cannot be in contempt because he is not in a court although I suppose that it may be a "once removed" contempt of the order made under clause 5(6) by the sheriff.Apart from a sense of scout's honour which may not apply very strongly in the circumstances that I have outlined, what is to stop someone simply saying, "I've told you all that I intend to tell you and I've gone as far as I'm going"? Someone might well want to do that if he was being precognosced about the matter by the Crown Office or anyone else. I am still a little unhappy about a situation in which the Minister glibly states that someone must answer questions which of course are not admissible as evidence but which will be put on a hot line and a quick fax machine back to the Lord Advocate. That person is being placed in a position in which, apparently, he has to incriminate himself.
§ Sir Nicholas FairbairnI am extremely worried, and the worries that I voiced in Committee have not been allayed by this, I assume, charitable attempt by the Minister to remove them.
1093 The hon. Member for Glasgow, Garscadden (Mr. Dewar) has put his finger on a number of important points. With regard to this provision, we are in a nebulous state. I do not know whether the appearance is to be in public or in private, or whether members of the press or the CID are entitled to be present. There is certainly nothing in the statute to prevent their being present.
I do not believe that the sheriff could say to someone, "You are going to be asked a question," and then have any alternative under the statute but to say, "And you've got to answer it." That is the thrust of the provision. It would take a brave fellow to say, "I have actually read the provision and I know that I've got to turn up, but I equally know that there is no provision telling me that I've got to answer." If someone is dragged along to a star chamber court and put before a judge, there is an assumption that one must answer. If I was a sheriff, I would find it difficult to know whether I was entitled to order the chap either to answer, or be prevaricating on a contempt, or to say that the chap did not have to answer.
§ Mr. Menzies CampbellThe hon. and learned Gentleman is right to point to the absence of a clear indication in the Bill of what would happen in the circumstances that he has described. Has he considered the fact that the ambiguity and lack of specification in the Bill may go further than even he has imagined? The sheriff may not necessarily be involved in the proceedings after he has issued an order to a nominated officer. On the face of the Bill, it seems that, once someone becomes a nominated officer, it is up to that person to go off and examine—using the word loosely—the person against whom the order has been made. However, all that seems to be regarded as taking place away from the sheriff court and away from the presence of the sheriff. If I am right about that, the possibility of the precise difficulty to which the hon. Member for Glasgow, Garscadden (Mr. Dewar) eloquently referred seems, if anything, to be yet more likely than the circumstances that the hon. and learned Gentleman has postulated.
§ Sir Nicholas FairbairnI am obliged to the hon. and learned Gentleman. There are terrible pitfalls which are not cured by the amendment. I had forgotten, of course, that the nominee can take someone off to a hole in the wall and cross-examine him. There is no suggestion that he needs corroboration of what that person is supposed to have said. There is no suggestion of the principles of safeguard against being misled. One has only to be involved in cases concerning customs and excise officers rather than policemen to realise how important such protections are.
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Apart from that, two other matters give me the greatest concern. First, is the nominee allowed to say that the press can be present so that admissions which are not admissible in evidence against the fellow can be published in the press? If that fellow says, "As a matter of fact, my granny was suffering from cancer so I just nicked all the funds before I cut the head off the beagle," and it appears in the press but is not admissible in evidence, I should not have thought that the "not admissible in evidence" provision was very helpful.
Secondly, I am worried about the presumption of guilt which arises easily, if sometimes properly, in the minds of policemen and prosecutors. If the nominee sends along a 1094 document which states that Willie Smith admits that he has been subtracting 50 per cent. of donations over the years, or any other incriminating statement, do not tell me that any prosecution will not proceed on the assumption that that is true when previously there was no evidence to suggest it. The fact that one cannot actually use those words does not help. Heaven knows, there is not an hon. Member present who does not know of cases in Scotland in which evidence was not invented to justify presumed assumptions, particularly of an alleged confession.
The amendment is dangerous, not because the Minister is not trying to help, but because the provision does not help. The nominee can wear a knuckleduster and say, "You answer my questions or I will hit you." That might be a breach of the law. He might say, "You realise that if you do not give me the answers that I would like, you may be in severe trouble." That is not a breach of the law by a nominee. I suppose that it might he a form of assault, but he is not an officer of the law—he is trying to get the answers that he wants.
It is a terrible path that the Lord Advocate and the courts of Scotland are being asked to tread. People collecting for charities will be subjected to a third degree from which even the most appalling terrorist would be protected.
§ Mr. Harry EwingI approach this matter on the basis that the interviews will be held in private and that the press will not be present. Two points worry me. The first is the lack of corroboration. Will the person being interviewed be entitled to have a representative present with him at the interview and whether the person who was nominated by the sheriff will have someone with him to corroborate the interview? The law of Scotland is based on corroboration. The Minister should say something about corroboration.
Secondly, the Minister explained what would happen in the interview. Once, in the view of the nominated person, the person being interviewed gives an incriminating answer, the nominated person would then, to use the Minister's words, immediately terminate the interview. Whether the Minister likes it or not, that would be a judgment. The nominated person would judge that the person being interviewed has made a statement that may or may not lead to criminal proceedings but which certainly merits being reported to the Lord Advocate for further investigation on the basis that criminal proceedings might follow. That is fraught with difficulties. I am not sure how that matter can be handled, and I am not happy about it.
It seems that there will be a one-to-one situation—no corroboration. The nominated person will make a judgment the background of a statement by the person being interviewed and will immediately terminate the interview. The matter will then be sent to the Lord Advocate for further investigation. As the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) said, that is fraught with difficulties. I know that this matter is difficult for the Minister also, but I should he grateful for further explanation of those points.
§ Mr. Menzies CampbellThe difficulties that have arisen in short consideration of this matter only serve to underline the fact that, when the provisions were framed and when the additional amendment was sought to be added, there was insufficient analytical consideration of the nature of the transaction between the nominated 1095 officer and the person who was summoned by virtue of an order of the sheriff. Ex facie of the Bill, the sheriff, having pronounced his order, is functus—he no longer has part in the proceedings. The nominated officer goes off with the order. It is as though an attempt had been made to add to the procedure known as commission and diligence and specification of documents—the equivalent of discovery in England and Wales.
It is as though, in addition, something had been added which requires a person to provide information in formal or informal circumstances, depending on the decision of the nominated officer, and which may be public or private because there is no specification of the proper method of proceeding. The circumstances may be formal or informal in the sense that one nominated officer may adopt the wholly informal approach—that of a conversation—and another may treat the matter with greater formality and ask the person who has been summoned to sit in a certain place and to conduct the proceedings in a particular way as though it were a formal investigation.
§ Sir Nicholas FairbairnAnother matter that the hon. and learned Gentleman might care to consider is that he adduced from the Minister the fact that the proceedings would not be under oath. If they are not under oath, on what possible basis could there be a prosecution for an offence under section 2 of the False Oaths (Scotland) Act 1933?
§ Mr. Menzies CampbellI am much obliged to the hon. and learned Gentleman, who has anticipated my next point. It appears that the nominated officer must give some warning when the proceedings commence. If, depending on my answer, I may be liable to prosecution for contravention of the False Oaths (Scotland) Act 1933, albeit perhaps a prosecution that is not founded on what I may have said, surely I should be entitled to a warning that the proceedings before the nominated officer might have that criminal consequence, yet there is no such provision.
The Minister says—no doubt sincerely—that, when an incriminating answer appears to have been given, the nominated officer will terminate the interview. Whether he does or not is the nominated officer's choice. Nothing in the Bill states that, as soon as an incriminating answer is given, the nominated officer must terminate the interview. Furthermore, neither the nominated officer nor the person being questioned may appreciate at a particular moment that that is an incriminating answer and might have the consequences to which other hon. Members have referred.
That is why the point made by the hon. Member for Falkirk, East (Mr. Ewing) is so important. If a person is summoned to meet a nominated officer, is he or she entitled to be represented, or is this situation similar to the examination for bankruptcy proceedings about which there was considerable doubt in Scotland for a long time on the question whether the bankrupt was entitled to be represented at his own proceedings?
Far too many questions have been left unanswered. To return to my earlier point, they remain unanswered because there has not been any rigorous examination of the consequences of inserting such a provision in the Bill. It is perfectly right for the hon. and learned Member for Perth and Kinross to talk with some awe about the powers 1096 of the Customs and Excise and of VAT inspectors. The hon. and learned Gentleman knows that, in the case of the Lord Advocate v. Friel, Lord Ross—now Lord Justice-Clerk Ross—took a vigorous view against the method of questioning used by the Customs and Excise inspectors. He held strongly that they were not entitled to conduct themselves in a way that was contrary to the principles laid down in the law of Scotland, stemming from the case of Chalmers v. the Lord Advocate.
Far too many questions are unanswered. There are far too many opportunities for mistake, confusion and injustice. That is why I believe that the provision does not bear the hallmark of careful and analytical consideration and it certainly does not bear the hallmark of any rigorous
My final point echoes to some extent what was said by the hon. Member for Glasgow, Garscadden (Mr. Dewar). An answer may be incriminating. It may not be able to be used in criminal proceedings later against that person. It may form the basis upon which other investigations can be carried out, by referring, for example, to the location of a certain piece of evidence. The statement about where the evidence is said to be located may not be admissible, but if someone examines the box in which the papers that have been referred to can be found, those papers and their findings may in turn come to be the incriminating evidence. It is artificial to suggest that there is as much protection as the Minister appears to claim for a person who is asked in response to an order from the sheriff.
§ Sir Nicholas FairbairnOn the hon. and learned Gentleman's point about the False Oaths (Scotland) Act, although a section states that that may not be used in evidence in criminal proceedings, there is no way in which the Act comes into this unless it can be put to the person who is on oath, when subsequently charged with a criminal offence, that he or she previously said something different from the nominee.
§ Mr. Menzies CampbellThe hon. and learned Gentleman is quite correct. To establish a conviction under the False Oaths (Scotland) Act 1933, it will be necessary to prove that what was said to the nominated officer was false, and that can be done only by leading evidence in relation to what was said to have been incriminating.
This is a can of worms. Although it is commonplace in Committee or on Report for hon. Members to complain that the provisions are insufficiently detailed or insufficiently well thought out, in this case such criticisms are more than germane. They go right to the heart of what the Minister is endeavouring to persuade the House to accept. I hope that he will realise that hon. Members of all parties have advanced points of great substance, not mere debating points.
If, in the light of what has been said, he is not satisfied with what he is trying to persuade the House to accept, he should take the honourable course and withdraw the
§ Lord James Douglas-HamiltonSeveral interesting points have been raised. I begin with the question asked by the hon. Member for Glasgow, Garscadden (Mr. Dewar) about whether the person who is being interviewed would be caught by clause 5(7) if he or she refused to answer the question. The person would be so caught, because 1097 subsection (6) requires the person to answer such questions as may be asked under subsection (4). An offence would therefore have been committed.
The hon. and learned Member for Fife, North-East (Mr. Campbell) asked whether a sheriff would be present at the interview. The hon. Member for Falkirk, East (Mr. Ewing) asked about corroboration. The sheriff will not be involved in the interview. The offence will be required to be proved beyond reasonable doubt in the same way as any other offence and will be subject to the requirement of corroboration.
§ Lord James Douglas-HamiltonI shall give way to the hon. Gentleman in a moment.
The hon. Member for Falkirk, East also asked whether a person is entitled to be legally represented at the interview. The Bill does not create a right for a person to be legally represented, but I assure the hon. Gentleman that no objection will be made if a person wishes to be legally represented at the interview.
The hon. Member for Garscadden—
§ Mr. Menzies CampbellI am grateful to the Minister for giving way, and I do not wish to thrash this point unnecessarily. Suppose the nominated officer said, "I am not prepared to allow you to have the solicitor of your choice present at this examination." The person who has been summoned has no right to the presence of a solicitor or any other person. If the nominated officer takes that decision, the person who has been summoned will have to abide by it. How can that be just?
§ Lord James Douglas-HamiltonI am giving an undertaking that that will not happen. Such a person would be allowed to have a solicitor with him.
§ Mr. DewarCould the Minister say a little more about the effect of the criminal penalty in clause 5(7)? Obviously, an offence would have to be established by corroborated evidence. One therefore assumes that there will be people in the room other than the interviewee and the interviewer—
§ Mr. Menzies CampbellSuch as a shorthand writer?
§ Mr. DewarIs there, for example—I am being helpfully prompted from the left—likely to be someone such as a shorthand writer present? If there are only two people in the room, corroboration will prove a remarkable difficulty. Perhaps the Minister could say something about that.
§ Lord James Douglas-HamiltonI sincerely hope that in most of the cases that we believe would involve a possible breach of trust, or something of that nature, there will be no question of criminal proceedings. However, if somebody refuses to answer or to provide accounts where they undoubtedly exist, the provisions will prove necessary to ensure that those who have given money to a charity or those who will benefit from it are not disadvantaged or prejudiced in the process.
§ Mr. DewarAbsolutely. However, I am referring to what the Minister helpfully said about clause 5(7)—that, if a person refuses to answer a question, he or she will be open to a fine not exceeding level 5 on the standard scale. That is clearly a criminal prosecution. I am simply trying to establish who the Minister expects to be in the room to provide the corroboration.
1098 While the Minister is at it, perhaps he could say more about his guarantee that a solicitor can represent the person being interviewed. It will be an odd situation, because presumably a solicitor is present to give his client advice about his right and might well be tempted to say, "I don't think that you should give that information, because you will incriminate yourself." What would be the solicitor's position if he gave that advice and if the client purported to take it?
§ Lord James Douglas-HamiltonThe hon. Gentleman has answered his own question—he said that a shorthand writer or someone of that nature would probably be with the nominated person. If an offence were committed, it would be subject to the normal rules relating to proof and corroboration when it came before a court.
§ Sir Nicholas Fairbairnrose—
§ Lord James Douglas-HamiltonI want to answer the question about false oaths, and my hon. and learned Friend can come back on this in a minute if he likes. It is clear that no answer to a question under subsection (6) can be used in any subsequent criminal proceedings. This will operate in the same way as Department of Trade and Industry inspectors, who have not run into tremendous difficulties in this connection. There are precedents for DTI inspectors making investigations. If, when making an investigation, an inspector, instead of finding evidence of breach of trust, runs into a case of serious fraud, he stops immediately and reports it to the Lord Advocate.
I mentioned that no answer to a question under subsection 6 could be used in any subsequent criminal proceedings against the person, except under section 2 of the False Oaths (Scotland) Act 1933, which relates to the making of false statements without oath. Section 2 states:
If any person knowingly and wilfully makes (otherwise than on oath) a statement false in a material particular, and the statement is made—I think that that is quite straightforward, and there is no question of that provision being repealed.he shall be guilty of a crime.
- (a) in a statutory declaration; or
- (b) in an abstract, account, balancing sheet, book, certificate, declaration, entry, estimate, inventory, notice, report, return or other document, which he is authorised or required to make, attest, or verify by, under, or in pursuance of any public general Act of Parliament for the time being in force; or
- (c) in any oral declaration or oral answer which he is authorised or required to make by, under, or in pursuance of any public general Act of Parliament for the time being in force,
§ Amendment agreed to.
§ Amendments made: No. 4, in page 7, line 4, after 'attend' insert 'and'.
§
No. 5, in page 7, line 12, at end add—
'( ) A person shall not be excused from answering such questions as he may be required to answer by virtue of subsection (6) above on the ground that the answer may incriminate or tend to incriminate him, but a statement made by him in answer to any such question shall not be admissible in evidence in any subsequent criminal proceedings against him, except in a prosecution for an offence under section 2 of the False Oaths (Scotland) Act 1933.'.—[Lord James Douglas-Hamilton.]